Sheik and Australian Postal Corporation
[2005] AATA 697
•22 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 697
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1821
GENERAL ADMINISTRATIVE DIVISION ) N2003/863, 898 & 1439 Re YASMIN SHEIK Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date22 July 2005
PlaceSydney
Decision For the reasons detailed later in this decision I make the following findings:
(1) Ms Sheik did not and does not now suffer from a psychiatric ailment; and the Respondent is not liable to pay compensation pursuant to section 14 of the Act;
(2) the Respondent’s rehabilitation plan of 11 December 2002 was not appropriate;
(3) Ms Sheik is able to work full time hours of 36 hours 45 minutes per week from 5 May 2003;
(4) Ms Sheik’s overdose on 4 March 2003 was a voluntary act and she is not entitled to compensation pursuant to section 14 (2) of the Act.
As a consequence of my findings I conclude that:
a) the determination in matter N2002/1821 is affirmed;
b) the determination in matter N2003/863 is affirmed
c) the determination in matter N2003/898 is set aside;
d) the determination in matter N2003/1439 is affirmed.
I further find that costs are awarded to the Applicant to be paid by the Respondent in accordance with the Tribunal’s Practice Direction only in relation to matter N2003/898.
[sgd] Dr J D Campbell
Member
CATCHWORDS
WORKERS COMPENSATION - physical injury - issue of psychiatric conditions/personality style - rehabilitation program - appropriateness - issue of incapacity payments – self-inflicted injury
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 37, 62
CASE LAW
Australian Telecommunications Commissioner and Tsikas, Re (1985) 5 AAR 173
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
June 2005 Dr J D Campbell, Member 1. Ms Sheik was born in Fiji in 1963. Ms Sheik completed high school to year 12 level, after which she completed a business studies course for one year. Ms Sheik worked as a credit clerk for nine months in Fiji prior to immigrating to Australia in 1988. Ms Sheik was employed in part-time work with Grace Brothers and as a machine operator as well as undertaking various courses of study prior to joining Australia Post as a part-time mail officer in December 1993. In 1994 Mr Sheik was confirmed as a full-time permanent employee at Australia Post and over the next three years acted as a senior mail officer for variable periods.
2. In May 1997 Ms Sheik suffered an injury to her back while lifting a heavy parcel. She was treated conservatively by her general practitioner (Dr Ho) and in March 1998 was referred by Australian Postal Corporation (“the Respondent”) to an occupational physician (Dr Dowda). Ms Sheik was referred to an orthopaedic surgeon (Dr Lee) in March 1998, was assessed by a consultant rheumatologist (Dr Carr) in May 1998, sought a second opinion from another orthopaedic surgeon in June 1998 (Dr Hudson) and underwent an MRI investigation in late June 1998.
3. In early July 1998 Ms Sheik underwent a percutaneous discectomy of the L4/5 lumbar disc. Ms Sheik was reviewed by Dr Carr (rheumatologist) at the behest of the Respondent in November 1998. A further MRI scan of the lumbar spine was conducted in early January 1999, followed by a L4/5 laminectomy carried out by Dr Lee in early February 1999.
4. In late March 1999 Ms Sheik was referred to Dr Bentivoglio (neurosurgeon). Further reviews were undertaken by Dr Carr in April 1999 and by Dr Steel (neurosurgeon) in June 1999. On 19 October 1999 a lumbar laminectomy and discectomy was carried out by Dr Bentivoglio with Dr Steel undertaking a spinal fusion procedure at L4/5 level.
5. The low back injury suffered by Ms Sheik was accepted as a compensable injury by Australia Post, with payments of compensation made pursuant to sections 14, 16, 19, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”). Compensation in relation to permanent impairment was paid in March 2002 with whole person impairment being assessed at 15 per cent pursuant to Table 9.6 of the Comcare Guide to the Assessment of Permanent Impairment for the thoraco lumbar spine and 10 per cent for the lower limbs pursuant to Table 9.4.
6. Ms Sheik commenced a return to work program on limited hours and with particular restrictions in June 2000. Subsequent to this, issues and activities have arisen which have given rise to the Respondent making a series of determinations. Ms Sheik seeks review of four of these decisions, namely:
a. Matter N2002/1821. Ms Sheik lodged a claim for compensation relating to a depressive illness on 18 December 2001. The Respondent denied liability for the depressive illness in a determination dated 11 February 2002. The Respondent, following reconsideration affirmed the earlier determination in a decision dated 24 May 2002.
b. Matter N2003/863. On 14 May 2003 the Respondent determined that Ms Sheik’s entitlements under section 19 of the Act shall be determined on the basis that she was able to earn, after her standard adjusted pre-injury rate of salary, for 36 hours 45 minutes per week in suitable employment which is available for her in the Records Section. This determination was affirmed after reconsideration by the Respondent in a decision dated 21 May 2003.
c. Matter N2003/898. A determination was issued on 11 December 2002 that Ms Sheik undertakes the nominated rehabilitation program. The Respondent, after reconsideration, affirmed the earlier determination in a decision dated 28 April 2003.
d. Matter N2003/1439. Ms Sheik lodged a claim for compensation for overdose (seizure) and depression on 22 May 2003. The Respondent denied liability in a determination dated 3 April 2003 and following reconsideration affirmed this determination in a decision dated 14 August 2003.
background
7. Prior to returning to work in June 2000 Ms Sheik underwent a CT scan of the lumbar spine in April 2000, following which neuro-physiological studies on her lower limbs were carried out by Dr Hitchens on 20 April 2000.
8. Ms Sheik was reviewed by Dr Trevitt (orthopaedic surgeon) on 27 April 2000 who considered Ms Sheik able to start light clerical work on a part-time basis and to avoid repetitive bending and heavy lifting (Exhibit R4). Ms Sheik was reviewed by Dr Maxwell (orthopaedic surgeon) on 1 March 2001 at which time Ms Sheik is said to have stated that “she was experiencing pain in her left leg which radiates into the left big toe and left knee. She also has pain in the back”. Dr Maxwell considered that Ms Sheik still suffered from mild L5 nerve root irritation to the left leg and back pain and that she remained partially incapacitated for work as a result of the work related incident of 2 May 1997. Dr Maxwell considered that Ms Sheik should upgrade her secretarial type duties from three hours per day, three days a week to five hours, five days a week, as he believed Ms Sheik fit to do so (1T5, p 34).
9. Mr Sheik was reviewed by Dr Bentivoglio prior to undertaking a back to life program conducted by a team at Westmead Hospital led by Dr Adler (occupational physician) over the period 27 August 2001 to 20 October 2001. In a report dated 3 December 2001 (1T7, p48) Dr Adler recommended that Ms Sheik commence working five hours a day, five days a week upgrading to full time hours over a three month period in sedentary or semi-sedentary duties. Ms Sheik had seen Dr Latif (treating general practitioner) on 24 September 2001 and he had recommended that Ms Sheik was able to undertake suitable duties for four hours a day five days a week (1T6, p37).
10. On 3 December 2001 Ms Sheik, having been made aware that the Respondent intended to increase her work hours, had a discussion with Ms Kerr (rehabilitation officer) concerning this and the issue of seeing the psychologist after hours. Following this discussion Ms Sheik remained upset and later returned home, where she took an overdose, as she believed that she was being hassled by Ms Kerr and “stressed so much that I could not take it” (1T9, p51). Clinical records from the Merrylands Medical Centre note that Ms Sheik was seen by Dr Jamshidi on 4 December 2001 and that Ms Sheik complained of being harassed at work and having taken four Capadex tablets at 4 pm on 3 December 2001, came home and took three Tramal three hours later and three Tryptanol tablets later on. Dr Jamshidi also recommended that Ms Sheik attend at the Westmead Hospital A&E section (Exhibit R6). Dr Walden (psychiatrist) in her report dated 30 January 2002 (1T11, p62) noted that Ms Sheik stated that she had taken eight Tramal tablets at home on the evening of 3 December 2001, which is consistent with what is reported by Dr Maxwell in his report of 1 February 2002 (1T12, p70), but inconsistent with that noted by Dr Baker in his report of 12 March 2002 in which he relies on a report of Dr Bentivoglio which suggests that the overdose was with Tryptanol tablets, taking of these tablets having been ceased subsequently on the advice of the treating hospital team (1T16, p97).
11. Dr Maxwell reviewed Ms Sheik on 17 January 2002 and in his report of 1 February 2002 (1T12, p69) noted that when Ms Sheik upgraded her work hours to four hours per day, three days a week sorting large letters and parcels at Granville, her pain increased. Dr Maxwell further noted that Ms Sheik was transferred to Strawberry Hills on 8 October 2001 and in this new job Ms Sheik was performing data entry work for five hours per day, five days a week. Dr Maxwell concluded that Ms Sheik’s physical problems had improved and stabilised and that her impairment could not be reduced by further rehabilitation treatment. Dr Maxwell also noted that Ms Sheik’s depression seems to be a major problem.
12. Dr Walden (a psychiatrist) provided a psychiatric opinion following an interview with Ms Sheik on 30 January 2002. In her report (1T11, p60) Dr Walden noted Ms Sheik’s complains of low back pain which radiated down her left leg; that it was continuous and had been worse recently, with Ms Sheik rating the pain at a severity of seven or eight out of ten. Dr Walden also noted that Ms Sheik complained of pain in her left knee and that she had consulted Dr Courtney (orthopaedic surgeon) about this problem and she had been prescribed Voltaren in addition to other medications she was already taking (Tramal, Zoloft and occasional Zantac). Dr Walden also noted that Ms Sheik detailed a statement to the effect “that she thought that it would be better perhaps to have her leg removed because of the pain and difficulty she is having with it”.
13. Dr Walden also records that Ms Sheik was angry with the report of Dr Adler from the Back to Life program that she had undertaken and that she had been to a solicitor regarding taking further action about it. Dr Walden further commented that Ms Sheik perceived the treating team as having “turned against me”. Dr Walden also records Ms Sheik as having difficulty attending appointments with Mr Garofali as they were after 5 pm and she felt too tired and in too much pain to attend at that time.
14. Dr Walden records Ms Sheik as considering that she was managing well with her work duties in which she was undertaking clerical duties five hours a day, five days a week at Strawberry Hills. In her confrontation with Ms Kerr on 3 December 2001, Dr Walden records Ms Sheik was upset when told she was not complying with her treatment and that she would be moved. Dr Walden also notes that Ms Sheik states that later in the day she “went into depression”, when she received a further letter from Ms Kerr upgrading her hours. Dr Walden also records that Ms Sheik stated that she was not depressed prior to receiving the letter from Australia Post on 3 December 2001.
15. Dr Walden also records Ms Sheik as stating that she believes that when she is being questioned about her work capacity, her experience of pain and her activities, that she is being treated as a liar and that such questions are harassing in her perception. Further, Dr Walden records Ms Sheik as stating, that while she enjoys her current work, she did not believe she can work any more because of her level of pain.
16. In her report Dr Walden detailed the following opinions:
“I think that Ms Sheik was genuinely angry and distressed about the interaction. It is an aspect of her personality and coping style that she responded to this by overdosing and I do not think that she developed an actual depressive illness.
…
Her personality style predates her compensable injury for her back. He personality style has made it more difficult to cope with her back injury.
…
I do not consider she currently has a psychiatric disorder which limits her ability to attend work and perform her normal restricted duties. However her personality style is enduring and she is likely to continue to become angry and upset if she perceives that others are critical and questioning of her capabilities.
…
Given Ms Sheik’s back injury and her personality style, I think there has been a fairly good result in her managing to return to work, five hours a day, five days a week, but I am doubtful that she will feel able to increase her hours of work beyond this. Attempts to encourage her to do so may well lead to further outbursts.”
17. On 5 February 2002 Dr Bentivoglio noted in his report (1T13, p72) that at review he was unable to elicit any evidence of neurological dysfunction, although Ms Sheik was complaining of increasing numbness in her left leg in the L5 distribution. Dr Bentivoglio noted that Ms Sheik had not been successful with the pain clinic and seems to be discontent with them. Dr Bentivoglio again recommended that Ms Sheik change her job and work part time.
18. In a report dated 12 March 2002 (1T16), Dr Baker (treating psychiatrist) noted Ms Sheik’s clinical history in relation to her back, the chronic pain and observed that she walked with a limp. Dr Baker also detailed a history of conflict between Ms Sheik and her rehabilitation officer, which involved shifting her place of work to Strawberry Hills and ringing her after hours stating that she had “not been severely disabled”, as well as attempts to increase her hours of work. Dr Baker noted that Ms Sheik reported themes of hopelessness and worthlessness, pessimistic ideas that doctors were not able to help her, all of which provoked her depressed mood. Dr Baker also noted that Ms Sheik expressed concerns about her loss of independence due to limited mobility, lack of funds and her inability to undertake full-time employment. Dr Baker considered that Ms Sheik suffered from major depression and chronic back pain. Dr Baker stated that he increased Ms Sheik’s dose of Zoloft and commenced a course of cognitive behavioural therapy to assist with the management of depression. He noted that after six sessions Ms Sheik had reported improvement in her mood with the issues about her employment fluctuating in intensity and the chronic pain unchanged.
19. It is with such material that the Respondent on 24 May 2002 affirmed the earlier determination that Australia Post was not liable to pay compensation to Ms Sheik for a depressive illness.
20. On 6 September 2002 Ms Sheik underwent a vocational assessment by Ms Harrington. In her report (1T24) Ms Harrington noted that Ms Sheik had the following transferable capabilities:
·sound verbal communication skills
·average written communications skills
·sound capacity for data entry and filing
·basic computer operation skills
·ability to lift up to 5 kg
·knowledge and skills in basic clerical tasks
·knowledge of Australia Post (mail centre) operations.
21. Ms Harrington detailed the following comments in the report:
“It will be important that the expectations placed on Ms Sheik are made clear to her, and any issues or difficulties addressed with line managers as early as practicable.
…
I would recommend that her psychiatrist or GP be consulted and, if possible involved, in advising Ms Sheik of any future chances to her rehabilitation plan to ensure that her mental health needs are adequately met by the appropriate practitioners.”
22. On 7 September 2002 Ms Sheik wrote to the Respondent making adverse comments about Ms Harrington’s earlier professional assistance and a report made in 1998, a report about which she complained in 1998 to her then rehabilitation counsellor, her doctor and her solicitor (1T20).
23. In a report dated 13 September 2002 (1T22), Dr Chase, an occupational physician, detailed the following opinions after his examination of Ms Sheik on 10 September 2002:
“It is highly unlikely that Ms Sheik will resume unrestricted mail officer duties. It is most likely that she will have to be permanently redeployed into jobs where she can sit or stand according to her pain tolerance and with a minimum amount of bending or lifting…
Ms Sheik is currently more disabled than she needs to be…There is no physical reason why she could not upgrade beyond five hours per day…This should mean she can upgrade to full hours over a 10 week period. In the meantime her lifting restriction should remain at 10 kg.
…
Her current psychological state is a result of the complex interactions that occur as a result of initial maladaptive coping strategies, her intrinsic personality, her social isolation and loneliness, her depression and her pain…
Unfortunately I feel that the likelihood of success is low. She has undoubted pathology and no insight into her psychological problems. Furthermore, she can see no good reason to return to full duties.”
24. Dr Chase detailed a list of medical documents made available to him, which did not include the report of Dr Walden or the report of Dr Maxwell of 1 February 2002.
25. Dr Bentivoglio completed two reports on 25 September 2002 (2T4 and 2T5) in which he summarised Ms Sheik’s clinical history and assessed her whole person permanent impairment. Dr Bentivoglio summarised his opinions in the following terms:
“Miss Sheik has had a significant disc injury at the L4/5 level, which has required three operations. This has left her with permanent intermittent low back pain and permanent numbness in her left leg, which will be affecting her for the rest of her life...
She also has significant reactive depression, which is being treated by a psychiatrist and anti-depressant medication…
I feel that she will never be able to work full time and part time duties are the best that she will ever be able to achieve…
She is also having trouble with her job in the postal department, because they keep trying to increase her activities which exacerbate her back pain.”
26. On 10 October 2002 Ms Loveridge completed a vocational assessment report on Ms Sheik as a result of an assessment conducted on 30 September 2002 (1T25). Ms Loveridge summarised her assessment in the following terms:
“Ms Sheik presented as quite articulate. Contrary to her presentation, a psychometric evaluation indicated that her general mental ability is well below average as is her general clerical ability. This suggests her ability to learn new skills is limited and there would be considerable limitations to her being vocationally redevelopedt.”
27. On 25 November 2002 Ms Sheik detailed in a memo for Ms Kerr, her rehabilitation officer, her concerns about statements alleged to have been made by Ms Kerr in support of Dr Chase, the doctor who had assessed Ms Sheik, and who Ms Sheik believed to be under investigation. Ms Sheik stated that she had spoken with Mr Kirkman, her manager about her matter and he had undertaken to convene a meeting to discuss the matter (1T28).
28. On 16 December 2002 Ms Kerr wrote a letter to Ms Keller, the assistant manager rehabilitation at Australia Post. In this letter (1T29), Ms Kerr described a meeting that she had had with Ms Sheik and Mr Kirkman (Ms Sheik’s manager) to discuss Ms Sheik’s upgrading program from five hours per day to five and a half hours per day with a return to normal working hours within a three month period. This meeting was held on 11 December 2002, and was stated to be a follow up meeting to that held with Ms Keller, Ms Sheik and Mr Enzon (union official) on 15 November 2002. Ms Kerr described Ms Sheik’s behaviour as interruptive, with Ms Sheik raising her voice and stating that the issue of a rehabilitation program determination was threatening to her and that such actions by Ms Kerr were responsible for her condition. Ms Kerr also records Ms Sheik as stating that Ms Kerr had no right to issue a determination which ignored her current general practitioner’s medical certificate, which retained Ms Sheik on her current five hours per day for the period 1 December 2002 to 1 January 2003. Ms Kerr also notes that Ms Sheik complained that the time frame for the commencement of the rehabilitation program was insufficient for her to liaise with her medical practitioners and her solicitors. Ms Kerr also records that Ms Sheik stated that she had put in a complaint to the Health Care Commission about her. Ms Kerr also denied making any comments about Ms Sheik’s intelligence or skin colour. As a consequence of this meeting Ms Kerr requested another rehabilitation counsellor be appointed to handle Ms Sheik’s case.
29. Mr Kirkman in a file memo dated 17 December 2002 (1T31) details the events of the meeting of 11 December 2002. Mr Kirkman details Ms Kerr as circulating the new determination to Ms Sheik at the start of the meeting, with Ms Sheik becoming rather distressed, even before Ms Kerr had finished her explanation. Mr Kirkman stated that Ms Sheik spoke in a loud voice, something which he had never heard in the 12 months Ms Sheik had been working in records management. He had found her to be an employee who conducted herself in an exemplary manner and carried out all tasks that he had requested to his satisfaction. Mr Kirkman believed Ms Sheik became temporarily unbalanced when presented with a determination on 11 December 2002, which was to come into effect as from 13 December 2002.
30. On 11 December 2002 Ms Kerr made a determination relating to a rehabilitation program for Ms Sheik (2T6). This determination detailed a program pending medical approval commencing on 13 December 2002 and ending on 28 February 2003, during which Ms Sheik was expected to undertake duties with nominated restrictions for periods of time nominated, so that by 15 March 2003 Ms Sheik would be working seven hours, 21 minutes per day. In formulating such a determination Ms Kerr noted that she relied upon the workplace assessment of Ms Morisset (an occupational health and safety adviser) undertaken on 8 October 2001 and which resulted in Ms Sheik undertaking duties in records management for five hours a day, five days a week from that time. Ms Kerr also relied upon the recommendations made by Dr Adler in his report of 3 December 2001, the report of Dr Maxwell of 1 February 2002 and the opinion of Dr Chase dated 13 September 2002. Ms Kerr also noted the medical certificates of Dr Latif which certified the Applicant fit to work for five hours a day five days per week for the period 1 December 2002 to 1 February 2003.
31. On 5 February 2003 Dr Walden completed a report (2T11), having assessed Ms Sheik on 30 January 2003. Dr Walden records Ms Sheik’s narration of a further encounter with Ms Kerr on 11 December 2002 concerning Ms Sheik’s fitness to increase her hours of work, commencing some two days hence. Dr Walden records Ms Sheik as feeling shocked and “so numb” and that she told her manager that she was feeling helpless. Further notated is Ms Sheik returning to her desk, unable to stop crying, felt helpless and that because her back and leg were aching, she took seven Voltaren tablets (an anti-inflammatory). Dr Walden notes that Ms Sheik stated that she did not know whether she would die from such ingestion. Ms Sheik is noted to have told her manager what she had done, and he in turn is noted as speaking with the rehabilitation manager, who arranged for Ms Sheik to be taken to the emergency room at Royal Prince Alfred Hospital. Dr Walden also notes that Ms Sheik’s treating psychiatrist, Dr Baker had given Ms Sheik a month off work after the incident, and that Ms Sheik’s weight had dropped to 59 kilograms for her desired weight of 64 kilograms.
32. In detailing her opinion, Dr Walden noted the clinical reports already detailed and in particular the report of Dr Baker, the treating psychiatrist. In Dr Walden’s opinion, she considered that Dr Baker “has underestimated the impact of personality style and coping mechanisms of Ms Sheik’s sudden overdosing behaviour and overestimated the presence of an actual depressive disorder”. In summary Dr Walden stated:
“I consider that from a psychological point of view, Ms Sheik is fit to perform her usual duties as a mail officer or selected duties as an administrative officer. She is very firmly of the opinion that she can work no more than five hours a day five days a week. She responds in an angry and distressed manner when this is questioned and believes she is being harassed and not believed. I am therefore doubtful that she will be able to increase her hours of work beyond her current five hours a day five days a week because of this belief.
Attempts to encourage her to do so are likely to lead to further outbursts. This is a reflection of her underlying personality style which pre-dates her back injury. Her personality style has made it more difficult for her to cope with her back injury. Regardless of how she injured her back, I doubt that she would be working more than she currently is…
Overall Ms Sheik is likely to continue to complain of back pain. Her personality style is relatively enduring. She is likely to feel angry and depressed if she perceives that others are critical or questioning of her capabilities and may respond to attempts to encourage her to increase with further angry outbursts and overdoses.”
33. In a document dated 10 March 2003 (2T11, pp56-59), Mr Burn, Manager Workplace Environment Branch, Ms Keller, Manager Rehabilitation and Ms Vranjesevic, human relations consultant, detail an overview of the meeting held with Ms Sheik and Mr Enzon (union representative) on 4 March 2003 from 2.45 pm to 3.50 pm. The purpose of the meeting was noted to review Ms Sheik’s reaction to the meeting with her rehabilitation counsellor and her workplace manager on 11 December 2002. It is noted that during the meeting the following statements were made:
·Mr Burn and Ms Vranjesevic stated that it was important to treat fellow workers with respect and courtesy;
·that it would be important that Ms Sheik provide an undertaking and commitment that she would treat a new rehabilitation counsellor with respect and courtesy;
·that Ms Sheik’s reaction to the meeting on 11 December 2002 as per statements from Ms Kerr and Mr Kirkman was not appropriate;
·that Ms Sheik refuted any inference that she may have acted inappropriately;
·Ms Sheik raised a number of issues not related to the purpose of the meeting, but more to do with Ms Sheik’s concern over issues in the past;
·that it was noted that during the course of the meting that Ms Sheik became increasingly upset and angry;
·that while discussing the time frame for the reconsideration of the rehabilitation program Ms Sheik swallowed some tablets; that Ms Sheik accused Ms Keller of causing her to take that action; that Ms Sheik reported that she had taken 10 Voltaren tablets, which Mr Burn disputed; that Ms Sheik stated that she would need to be taken to hospital; the meeting continued for a further 10 or 15 minutes;
·that it was arranged that Mr Enzon would take Ms Sheik home;
·that Mr Enzon reported at 8 pm that day that Ms Sheik had taken five further tablets while he was collecting something from his office in Parramatta; that Ms Sheik was having convulsions and that he had taken her to Blacktown Hospital.
34. On 22 March 2003 Ms Sheik lodged a claim for compensation for overdose, seizure and depression (2T12). In an accompanying statement Ms Sheik detailed the following comments:
· that Mr Burn had rung Mr Enzon to arrange a meeting with Ms Sheik at 2.30 pm on 4 March 2003, Mr Enzon having rung her the previous evening at 6.30 pm;
· that she had met with Mr Burn in his office on 26 February 2003 with Mr Enzon to discuss and hand over a report relating to the meeting on 11 December 2002 and her subsequent overdose;
· that Mr Burn opened the meeting by stating “Ms Kerr wants nothing to do with you due to your aggressive behaviour and not showing any respect and courtesy to your rehabilitation officer”;
· that she responded by saying that he is insulting and abusing her;
· that both Ms Keller and Mr Burn stated that her current manager, Mr Kirkman finds Ms Sheik’s behaviour worrying and aggressive;
· her understanding of the remainder of the meeting and subsequent events prior to admission to Blacktown Hospital.
35. On 3 April 2003 the Respondent issued a determination denying liability to pay compensation for the overdose pursuant to section 14(2) of the Act (2TI3).
36. On 7 April 2003 Dr Gertler, consultant psychiatrist detailed a report following his assessment of Ms Sheik on 8 April 2003 (2TI4). Dr Gertler details a history of Ms Sheik’s physical injury and treatment, her involvement with the rehabilitation counsellor that caused her stress, and because of the counsellor’s belief that she was able to work longer hours; Ms Sheik decompensated emotionally and took overdoses in December 2001, December 2002 and March 2003.
37. Dr Gertler formed the following impression:
· Ms Sheik is suffering from an adjustment disorder with anxious and depressed mood;
· The prognosis for the stated disorder remains guarded, with Ms Sheik suffering from symptoms of anxiety and depression for two years despite psychiatric treatment;
· Ms Sheik remains vulnerable to unexpected processes in her workplace with a tendency towards emotional decompensation with suicidal ideation. She remains at risk for further similar episodes of suicidal behaviour if her work situation does not stabilise;
· the psychiatric condition has developed as a result of the physical sequelae of the injury to her back in 1997;
· the duration of her partial fitness for work is a function of her physical complaints. Pressures upon her emanating from the workplace to increase her hours of work are likely to lead to an increase in anxiety and heightened vulnerability to decompensate emotionally. Such pressures are likely to prolong the period of partial fitness for work.
38. On 28 April 2003 Mr Burn issued a reconsideration decision affirming the delegate’s decision of 11 December 2002 that Ms Sheik undertakes a rehabilitation program as determined. Mr Burns in making his decision alluded to the clinical reports of Dr Bentivoglio of 25 September 2002, medical certificates provided by Dr Latif and Dr Baker, Dr Maxwell’s report of 1 March 2001, Dr Adler’s report of 3 December 2001, Dr Chase’s report of 10 September 2002, Dr Walden’s report of 30 January 2002, and the vocational assessment report of Ms Loveridge. Mr Burn also noted that medical evidence had been provided with regard to other conditions that limit her capacity to work. These conditions are not considered compensable in Mr Burn’s determination, with any time off work relating to these conditions being assessed on relevant leave entitlements.
39. On 14 May 2003 the Respondent, consequent to the reconsideration decision of 28 April 2003 determined that Ms Sheik was to comply with the return to work program formulated on 11 December 2002 and determined that Ms Sheik was capable of working full time in the Records Section. Furthermore, Ms Sheik’s compensation entitlements pursuant to section 19 of the Act would be calculated on the basis that she was able to earn at her standard adjusted pre-injury rate of salary, for 36 hours 45 minutes per week in suitable employment in the Records Section, commencing 5 May 2003 (2T20).
40. On 21 May 2003 the Respondent affirmed the determination of 14 May 2003, stating that the weight of medical evidence supports Ms Sheik’s ability to increase her work hours to full time hours and participate in the rehabilitation program.
41. On 28 May 2003, Mr Gachon, a psychologist and independent rehabilitation consultant, undertook an assessment of Ms Sheik’s work capacity. Mr Gachon noted that Ms Sheik was currently working five hours a day, three days a week, this having commenced after 11 December 2002, which was reported as the date of her new condition of depression. Mr Gachon detailed Ms Sheik’s concerns which included:
· conflict with Australia Post management
· depression and anxiety as a result of ongoing conflict
· fear of further conflict
· uncertainty as to her future position with Australia Post.
42. Mr Gachon detailed a list of recommendations which included:
· a return to work program with an aim to achieve full hours, but not a return to mail officer duties;
· further discussions with her employer to clarify Ms Sheik’s position;
· discussion with treating practitioners re upgrade.
43. On 23 June 2003 a proposed return to work plan, which had been agreed to by Ms Sheik and the Respondent was forwarded to the treating practitioner. This plan involved upgrading of hours to five hours a day, five days a week within one month of the program commencing, as well as a discussion to take place to identify and agree upon suitable and permanent relocation of Ms Sheik within Australia Post (2T25).
44. On 3 April 2003 the Respondent had issued a determination denying liability for compensation relating to the overdose/depression taken/suffered by Ms Sheik on 4 March 2003.
45. On 10 April 2003 Ms Sheik was assessed by Dr Roldan, a consultant psychologist. In his report (3T3), Dr Roldan detailed a full history of Ms Sheik’s clinical and personal circumstances and her difficulties with a rehabilitation officer at Australia Post, which included threat of transfer from Strawberry Hills in December 2001, which led to the first overdose, the confrontation with Ms Kerr on 4 December 2002 and the second overdose, and confrontation with management on 4 March 2003 and her third overdose. Dr Roldan also detailed a comprehensive review of the available clinical material.
46. Dr Roldan detailed the following opinions:
· Psychiatric testing including administration of MMPI-II revealed results which have been found to be associated with over reporting of physical disability and physical discomfort. That Ms Sheik on the PDI (Pain Disability Index) described herself as experiencing a greater degree of pain induced physical disability, than in-patients hospitalised due to their physical pathology.
· that Ms Sheik, on psychometric testing, should be capable of performing clerical duties, and generally confirms the findings of Ms Harrington in early September 2002;
· that the symptoms of adjustment disorder reactive to her alleged physical difficulties must be considered in the context of whether the severity of allegedly ongoing physical problems are accepted;
· it is reasonable to question whether the alleged suicide attempts, manifested within the context of her personality disturbances are gestures designed to call attention upon herself and emphasise her disgruntlement;
· Ms Sheik presents with a rather impressionistic, dramatic and child-like repertoire of behaviours and verbal commentary that suggest longstanding maladaptive personality characteristics;
· that Ms Sheik on specific questioning, denied experiencing depression prior to the events of 3 December 2001, 11 December 2002 and 4 March 2003; that she was happy prior to the events and that it was the conduct/demands of her employer that led her to overdose;
· that such suicide gestures need to be understood within the context of Ms Sheik’s maladaptive personality structure;
· that Ms Sheik did not suffer a psychological injury as a consequence of the events of December 2001, December 2002 and March 2003;
· that Ms Sheik did not lose her power of volition in the taking of tablets on 3 December 2001, that there was no psychological incapacity for work as a result of taking those tablets;
· that Ms Sheik is psychologically and cognitively fit to undertake normal duties as a mail officer or in a general administrative/clerical capacity;
· that Ms Sheik is likely to continue to exhibit personality difficulties and associated maladaptive behaviours, responses, perceptions and thought patterns for the foreseeable future;
· that Ms Sheik is likely to continue to exhibit strong reluctance to agree to any program of occupational rehabilitation that does not adhere to her views and/or she perceives as not vindicating her stand.
47. The Respondent affirmed the earlier determination of 3 April 2003 in a decision dated 14 August 2003, being satisfied that Ms Sheik’s injury of 4 March 2003 was intentionally self-inflicted.
48. On 29 August 2003 Dr Bentivoglio in a report stated that Ms Sheik was complaining of persistent neuropathic pain in the L5 distribution, which fluctuates. Further on examination, he was unable to find any neurological abnormality (3T7).
issues
49. The relevant issues in these matters are:
1) Whether Ms Sheik suffers from a psychiatric ailment and if so, was the ailment or the aggravation of the ailment contributed to in a material degree by Ms Sheik’s employment with Australia Post?
2) Whether the Respondent’s rehabilitation plan dated 11 December 2002 was appropriate pursuant to section 37(3) of the Act and if so did Ms Sheik have a reasonable excuse for not undertaking such a program pursuant to section 37(7) of the Act?
3) Whether the Applicant is fit to work 36 hours and 45 minutes per week from 5 May 2003; and whether the Applicant is able to work full time hours, and if not whether the Applicant is entitled to incapacity payments pursuant to section 19 of the Act?
4) Whether Ms Sheik is entitled to receive compensation pursuant to section 14 of the Act as a consequence of the overdose taken by her on 4 March 2002.
decision
50. For the reasons detailed later in this decision I make the following findings:
(1) Ms Sheik did not and does not now suffer from a psychiatric ailment; and the Respondent is not liable to pay compensation pursuant to section 14 of the Act;
(2) the Respondent’s rehabilitation plan of 11 December 2002 was not appropriate;
(3)Ms Sheik is able to work full time hours of 36 hours 45 minutes per week from 5 May 2003;
(4) Ms Sheik’s overdose on 4 March 2003 was a voluntary act and she is not entitled to compensation pursuant to section 14 (2) of the Act.
51. As a consequence of my findings I conclude that:
e)the determination in matter N2002/1821 is affirmed;
f)the determination in matter N2003/863 is affirmed
g)the determination in matter N2003/898 is set aside;
h)the determination in matter N2003/1439 is affirmed.
52. I further find that costs are awarded to the Applicant to be paid by the Respondent in accordance with the Tribunal’s Practice Direction only in relation to matter N2003/898.
evidence of ms sheik
53. Ms Sheik detailed the following relevant evidence:
· her school and work history prior to joining Australia Post in 1993 and an absence of any injury or psychological problems before 5 May 1997;
· the history of her injury at work to her lower back on 5 May 1997 and the circumstances surrounding the three operative interventions on her back, with the last being a laminectomy, discectomy and fusion operation at the L4/5 level undertaken on 19 October 1999;
· that she returned to work in July 2000 at Sydney Postal Centre on restricted duties doing two hours per day two or three days a week;
· that further increase in working hours was hindered by her inability to walk properly and her pain. Ms Sheik also expressed some dissatisfaction with the nature of the work (one hour reception and one hour shredding papers);
· that Ms Kerr took over as her rehabilitation counsellor in October 2000, with contact being mainly by phone;
· that she was transferred to a mail officer’s job at Dural, which she was unable to handle, because she was asked to undertake activities which were beyond what her restrictions allowed. Ms Sheik stated that she remained at this job, that she then had no work to do and that she used to just sit there, cry, become drowsy and ring Ms Kerr;
· that at Sydney Parcel Centre there were difficulties with the nature of the chair provided. This led to disputation involving the Union, Ms Kerr and attempts to involve Dr Latif to help resolve the issues about the work and the work environment, an activity which did not eventuate;
· that about one month later (October 2001) she was transferred to Strawberry Hills, to do a job which was essentially data entry, the hours per day she was unable to remember, although they did include visiting the gym;
· that she was feeling very good and that mentally she felt much better as she was doing a job, although she was never given a password to access the computer over the eighteen months she did the job, with the lack of access impeding the performance of her duties. Requests to rectify the situation were denied, until a private rehabilitation officer had the matter corrected in July/August 2003;
· that in late 2001 she had a meeting with Ms Kerr regarding the number of hours worked and moving her to some other place to do the work of a mail officer. She stated Ms Kerr wanted to increase her work hours despite having received a certificate from Dr Latif. The issue of attending an appointment at 5 pm at Westmead was also raised, to which Ms Sheik replied that it was very late and she was sick. Ms Sheik stated that she was told if she did not attend her compensation would be stopped, which caused Ms Sheik much worry;
· that she believed in late 2001 she was doing four hours of work four days a week, with one hour been spent at the gym;
· that further meetings were held with Ms Kerr and after one meeting she stayed home for two weeks. After this meeting with Ms Kerr, she went home and took an overdose of Tryptanol, because she was feeling very sad and she was injured at work and she was trying to do her best;
· that she had been prescribed Tryptanol for difficulty in sleeping which had commenced when she was moved to Strawberry Hills and that she had little to do because she was unable to log on;
· that after taking the overdose she wrote a letter to Ms Kerr to let her know how she was feeling, and what she was doing and why she was not helping her;
· that after taking the overdose she rang a friend in order that he collect the letter and fax it to Australia Post the next morning. The friend read the letter prior to faxing it, and in the afternoon came to check on Ms Sheik, who woke up in front of him. He became concerned and took her to a general practitioner who referred her to Westmead Hospital. At the hospital she was assessed by a triage nurse, who considered the situation not serious, with Ms Sheik electing to go home after waiting many hours for an examination to be performed (not done). The following morning she spoke with Dr Latif, who referred her to Dr Baker (psychiatrist), who after assessment prescribed Zoloft;
· Ms Sheik returned to work after two weeks and continued to undertake the same duties for five hours a day, five days a week. Later in 2002 she had further issues with Ms Kerr when the latter attempted to increase her hours despite certificates being presented from Dr Latif. Ms Kerr expected Ms Sheik to return to Dr Latif and have the certificate amended and return within one week;
· Ms Sheik attended upon Dr Latif on this issue during which time she responded to a question asked by Dr Latif that she would not be able to do further hours. Ms Sheik met with Ms Kerr and her manager in the presence of her Union representative at which discussions on increased hours were canvassed. By December 2002 Ms Sheik stated that she had received many phone calls from Ms Kerr commenting that she was able to go shopping, that she should be able to increase her work hours and that if she did not her compensation would cease. This, Ms Sheik stated, made her feel sad. Ms Sheik also stated that when she came to work she was scared that there would be a note attached to her computer to attend a meeting with Ms Kerr or alternatively Ms Kerr would come down and without notice take her to a room and discuss the issue of increasing her hours.
· On a particular day in December there was a meeting with Ms Kerr and Mr Kirkman to discuss the issue of increasing her hours and her doctor’s certificate, with a discussion ensuing about the relative weights of her medical opinions in the light of opinions received by Australia Post. The discussion evolved with Ms Kerr handing a paper to Ms Sheik which detailed her hours of increased work. Ms Sheik stated that she then left the meeting crying, having indicated that she was going to talk to her Union, doctors and solicitor, because she believed she had been told her compensation would cease unless she did the extra hours;
· that she returned to her desk and took seven Voltaren tablets and after about ten minutes complained to her manager that she was suffocating. Following further discussions she was taken by taxi to Royal Prince Alfred Hospital by the rehabilitation manager. She was retained in the hospital until later afternoon, after arrangements had been made by the hospital for her to see Dr Baker the next day;
· Ms Sheik returned to duty on 15 January 2003 doing five hours a day, four days a week. She found difficulty in coping with her work, as she could not concentrate and was feeling sad and lonely;
· that she had a further meeting on 4 March 2003 to discuss what had occurred at the meeting in December 2002. Attendees at the meeting included herself, Mr Burn, a union representative, the rehabilitation manager and the human resources manager from Parcels. Ms Sheik related that Mr Burn opened the meeting by saying her behaviour at the meeting in December 2002 was not acceptable to Australia Post, that she must have to respect her rehabilitation officer and that she was a liar and uneducated;
· Ms Sheik stated that she interrupted Mr Burn to say that she was not a liar and not uneducated. Mr Burn is further stated as saying that her manager in the records section had said to him that “you are dangerous and he has fears for his other staff members”;
· Ms Sheik admitted to being preoccupied prior to the meeting, stating that she spent most of the time thinking about what was going to happen next;
· Ms Sheik stated that she took an overdose of Voltaren tablets during the meeting, with Ms Sheik stating that Mr Burn said that she had taken nothing. The meeting continued for a further 20 minutes, after which she returned to her desk, and while sitting there and crying she took a further five Tramal tablets. Ms Sheik stated that while the union representative was driving her to see her doctor, she had a seizure. She was taken to Granville to see Dr Latif who referred her to Blacktown hospital where she remained for two days. On discharge Ms Sheik remained off work until 15 May 2003, but during this period she was twice taken to hospital (Auburn and Blacktown) by ambulance because of breathing problems (doctors told her they were panic attacks).
· On returning to work, Ms Sheik worked five hours a day four days a week, with a new rehabilitation counsellor becoming involved. Ms Sheik stated that she continued to have back pain and leg pain at this time and Dr Bentivoglio prescribed some new medication, Neurontin, which tended to make her drowsy at work.
· Ms Sheik stated that at that time in April 2004 she felt physically unable to work more than five hours a day four days a week because of drowsiness from medication, which caused her to make mistakes in filing. Further, she was having occasional problems with her hands and arms over the last year or two.
· that she made a complaint about Dr Chase, because he was rude to her by way of asking inappropriate questions to her during her consultation with him. As a consequence she spoke with Ms Kerr and the Union, the latter suggesting that she detail her concerns to them, which she did, and they forwarded her letter to the Health Complaints Commission.
· that the investigation of the complaint to the Health Complaints Commission was undertaken by an Australia Post employee with her agreement.
· that after the last overdose she had difficulty with sleeping; that she has been forgetting a lot; that she needs support when standing for half an hour; that she is able to walk slowly, and if she walks quickly she has cramps and feels she is unable to take steps; that she is able to sit for one hour. She also experiences difficulty with lifting and bending. At times she feels emotionally down.
· that up to January 2005 she was able to cope and liked her job at Strawberry Hills, which she did for 20 hours a week, and that while her back was still the same, she was feeling mentally alright since April 2004.
· that in January 2005 she was told by her manager that the job at Strawberry Hills was to cease and was given a letter from Ms Keller dated 24 January 2005 (Exhibit A5) which stated that Ms Sheik was to report the next day to Sydney Gateway for a meeting;
· that upon receiving the letter she went to see Dr Latif, who referred her to Dr Baker who sent her home. She returned to Dr Latif who provided her with a letter detailing the psychological problems she was likely to face on returning to Sydney Gateway (Exhibit A6). On the following day she returned to Strawberry Hills and delivered the letter from Dr Latif to her manager. Ms Sheik stated that she attempted to remain at Strawberry Hills, but following more discussions she left and went and saw Dr Baker and Dr Latif prior to going home;
· that on the next day she returned to Dr Latif, who showed her a letter from Ms Keller. Prior to 15 February 2005, she attended a meeting at Sydney Gateway (Clyde) were she met with Ms Swain, her new rehabilitation officer, the facility manager and the occupational health and safety officer, and was shown where she will be located and her work station;
· that after her orientation day she commenced work on a Monday as the administration manager was not there, as he was on holiday. On the first day there her job was detailed as data entry on the floor, to which she said her doctor objected. Subsequently she was taken to another job in the administrations area and shown a desk where she would be sitting, with duties involving computer work;
· the next day the manager told her that he was finding a further job for her, as she was a mail officer, and that the previous job “needs a brain” and is only for people graded two, three or four. She went home.
· the next day she was offered a job in the filing room, which involved lifting documents from a trolley, sorting them and then filing them in a compactus. She was able to sit or stand sorting the documents, but the table was too low and if standing she experienced problems; that she also experienced problems when filing in the compactus, as there was insufficient space between the bays to allow her to stretch her hand. She suggested the removal of a compacter shelf;
· the job aggravated the pain and mentally she was unable to cope as she had initially been promised an administration job. Her situation remained with Ms Sheik stating that whenever she spoke to the manger he ignored her.
· she developed elbow pain, then slowly started having back pains, and side pains on her right. She reported to a doctor near her home, was sent for x-rays and because her pain was so bad she was taken to Blacktown Hospital by ambulance on 16 March 2005, where she remained over night. She returned to the doctor the next day, consulted with Dr Latif and returned to work on 23 March 2005.
· Ms Sheik stated that after returning to work she tried to tell the manager about her work difficulties, but he took no notice and that she has continued what she was doing;
· that she stopped taking her anti depressant tablets because she was looking forward to the administration job, but when it was not to be, she felt it necessary to recommence such medication. Further, she has increased her dosage of Tramal tablets to two morning and evening, with Panadol in between.
54. In answer to questions in cross examination Ms Sheik detailed the following:
· that her elderly mother lived in Fiji and she last visited her in Fiji in 1997, prior to her injury, with her mother never visiting Australia. Nevertheless Ms Sheik admitted to applying for and being granted leave because her mother was ill and she was needed to care for her on 14 March 1996, 16 April 1996, two days in December 1996, January 1997 (one day), four days in December 1997 (although stated to be in conjunction with annual leave to visit Fiji). Ms Sheik stated that she believed she was entitled to such leave as it was done with the knowledge of her shift manager, and that it was fair in comparison to other workers who were granted compassionate leave to look after sick relatives, albeit that she had no relatives in Sydney that she could care for.
· that in December 2000 she did seek testing for sexual transmitted diseases as she was concerned that she may have acquired such an infection during a recent hospital stay. While Dr Ho’s notes may have mentioned the issue of a boyfriend, who may have had another partner. Ms Sheik stated that she just made this excuse up, as she was unable to have any sexual relationships because of her injury. That on the next day when giving evidence Ms Sheik stated that indeed someone had approached her to have a sexual relationship when she was sick and that both her and the individual agreed to be tested.
· that Ms Sheik stated that Dr Bentivoglio had suggested she attend the pain clinic at Westmead, and that she disagreed with certain aspects of Dr Adler’s report of 3 December 2001, particularly when it related to her behaviour during the program. Further, she did complain to Ms Kerr about the report on 11 September 2002 and that she was going to make a complaint about the report to the Health Care Complaints Commission. Ms Sheik also confirmed that she complained about the reports of Ms Harrington (inappropriate questions at an earlier assessment) and Dr Chase (inappropriate questions and statements). Ms Sheik denied that her reasons for making complaints were to do with recommendations made in the report suggesting increasing her hours of work, and agreed that she recommenced work on two hours per day twice a week on 14 June 2000.
· that she received a letter from Australia Post dated 7 March 2003 (Exhibit R8 – Report of Mr Johnston into her complaint against Dr Chase), sent by express post, when she arrived home from hospital on 6 March 2003 (in letter box). Ms Sheik believed it to be forward dated and wrote complaining that such an action lacked compassion and that she believed it to be a ruthless, uncompassionate and cunning document, in that the writer could have waited until she got better (Exhibit R9 – letter by Ms Sheik dated 25 March 2003).
· that in early December 2002 when she returned to see Dr Latif concerning an increase in working hours, she told Dr Latif that she could not do more hours, “because physically I felt I couldn’t do it” . Further, at any stage Australia Post has attempted to increase her hours Ms Sheik stated that she has “resisted on the basis of my health”. Similarly events during the Westmead program report describing Ms Sheik as spontaneously crying were untrue with Ms Sheik stating the only time she cried was when she was put on an exercise bike (pain from knee condition). Likewise Ms Sheik denied that she was over reporting her pain symptoms, or using a walking stick as stated in the Adler letter of 3 December 2003. Ms Sheik stated that she believed the whole team at Westmead were against her and had told lies in the report signed by Dr Adler and that she was very unhappy with the report.
· that she was sad and worried about her future prior to the first overdose on 3 December 2001, but admitted to telling Dr Roldan that unhappiness was felt when she was at the mail centre prior to moving to Strawberry Hills in October 2001. Ms Sheik also admitted that what she told Dr Walden (noted in her report of 30 January 2002) that she just snapped at the meeting on 3 December 2001, was correct.
· that the tablets taken on 3 December 2001 were Tryptanol; that she asked the individual to pick up the letter that she had written in the evening, and he read it when he faxed it the next day. On attendance at Westmead arrangements were made for her to see Mr Garofali, a psychologist, prior to her leaving the hospital.
· Ms Sheik denied speaking over the top of Ms Kerr and Mr Kirkman at the meeting on 11 December 2002, apart from one occasion and then only for a few sentences. She also admitted to stating that she was going to make a complaint to the Health Care Commission about Ms Kerr, because she was discussing Dr Chase in the meeting, and that she was the cause of her depression, but does not remember whether she had raised that Ms Kerr was against her because of her brown skin. Ms Sheik stated that she inferred from Ms Kerr’s behaviour, that the issues of colour and intelligence were indirectly part of why she felt she was being discriminated against.
· that she took an overdose of Voltaren tablets after returning to her desk with the intention of not wanting to exist. At Royal Prince Alfred Hospital she admitted to telling the doctors that she had no intention to suicide, and that while she admitted to conflict at work, she did not admit to being ostracised by family as recorded in the clinical notes of the hospital (Exhibit R10).
· that she returned to work on 16 January 2003, and continued to do five hours a day at work until 4 March 2003. Ms Sheik stated that at the meeting on 4 March 2003, Ms Keller stated that she was a liar and wrote threatening letters, and that Mr Burn called her uneducated, with Ms Keller agreeing. Further, Ms Sheik stated that both repeated that she was uneducated, unprofessional and a liar. Ms Sheik admitted to talking over others during the meeting. Ms Sheik also recalls as stating that Ms Keller contributed to her first overdose and that Mr Burn suggested that she had only taken one or two Voltaren tablets when she said she had taken seven. Ms Sheik stated she took some five Tramal tablets when sitting at her desk some time after the meeting ended.
· that at the hospital she denied an intention to take her life (Exhibit R12 - clinical notes Blacktown Hospital), although she is unable to remember what she said, but she reiterated that it was her intention to so do;
· Ms Sheik agreed that during the two days of examinations she had been able to concentrate, that she was able to sit and stand as required, that she had suspended her medication to avoid feeling drowsy during these two days and that she was able to give a full answer to all questions asked. Although with some questions there was a difficulty with memory. In re-examination Ms Sheik indicated that she continued to take some Tramal but no Neurontin medication.
· in further cross-examination on 25 April 2005, Ms Sheik confirmed that she was aware that the job at Strawberry Hills was only temporary; that prior to commencing the job in mid February 2005 at Clyde she went to see Dr Latif and told him of her concerns (people came to see her in hospital after one overdose incident, and her psychological condition) and showed him a picture of an ULD (trolley), this being an example of what she expected at her new work place. Ms Sheik confirmed that she returned to Strawberry Hills afters seeing Dr Latif to hand in the letter he gave her, and to discuss issues with her rehabilitation officer.
· that when she met Ms Swain, her new rehabilitation officer at Clyde, Ms Sheik told her that she had only a superficial knowledge of her case. She denied stating that she said to Ms Swain that there might be possible consequences as a result of her superficial knowledge and that she was now going to be responsible for any future suicide attempts, not Australia Post.
· that at her induction she was not told that she would have to wear safety shoes if undertaking data entry, but was told that safety shoes were required for commercial data entry. Ms Sheik stated that she went to a podiatrist because Dr Latif said the safety shoes offered were too heavy, having been told by Ms Sheik that because of her previous experiences with safety shoes they would be too heavy.
· that she has cramps in her left leg when walking together with back pain. Ms Sheik stated that the cramps in her left leg tended to make her walk slowly, and if walking faster she may limp after 10 to 15 minutes. Further, Ms Sheik stated that if she is carrying something she walks slowly.
· that the video (Exhibit R21) demonstrated her walking not particularly briskly and holding light bags in each hand;
· that she did take a pair of safety shoes home after attending the Mortdale warehouse, wore them at home on the Friday and found them too heavy to walk around in, which she told Dr Latif when she saw him on the Saturday;
· that after initial problems with taking the satchels from the trolleys Ms Swain arranged for a wire stand, on to which someone else would put the satchels Ms Sheik stated that as there was no one nominated with the specific responsibility to do that task, she continued to place the satchels in the wire basket, except if a particular satchel was heavy, at which time she would ask someone else to do it. Ms Sheik was aware that Ms Swain had made a note for Mr Touma to have the activity undertaken, but she never herself asked Mr Touma. When it was not being done, Ms Sheik stated that Mr Touma would come by each morning and she would say to him that she needs something done with the compactus and nothing has been done, and that she needed someone to lift the satchels from the trolley onto the wire rack.
· Ms Sheik stated that she preferred the job at Strawberry Hills to the job at Clyde. Ms Sheik also stated that in her mind 20 hours of work was the maximum work she should be required to perform.
evidence of ms kerr – rehabilitation counsellor
55. Ms Kerr told the Tribunal that she commenced working with Australia Post in July 1999 and assumed the role as Ms Sheik’s rehabilitation counsellor in March 2001. Ms Kerr denied ringing Ms Sheik prior to an operation in October 1999, and that she did not have contact with her in 2000, while in October 2001 it would have been mainly contact by telephone. Ms Kerr was unaware that Ms Sheik even went to Dural, although Ms Kerr does remember Ms Sheik ringing her to discuss the tasks she was performing and complained about an absence of a chair, and having to stand for substantial periods of time. Ms Kerr also reported that Ms Sheik did not like working at the Sydney Parcel Centre because people used to ask her personal questions which upset her. At this stage Ms Kerr stated that Ms Sheik was undertaking administrative work (reception) and some floor work with restrictions (sorting).
56. Ms Kerr stated that she did attend a meeting at Sydney Parcel Centre with Ms Sheik, the Union representative and a manager shortly after she assumed responsibility for Ms Sheik’s case to discuss certain issues arising from Dr Maxwell’s report, the withdrawal of cab charges and the ability of Ms Sheik to walk to and from work.
57. Ms Kerr confirmed that Ms Sheik did not have a password for 18 months while working at Strawberry Hills. Further, she confirmed that she had meetings with Ms Sheik and her manager in November and December 2002 in regard to her upgrading her hours of work. Ms Kerr said it was never her intention to have ad hoc meetings with Ms Sheik with Ms Kerr ringing Ms Sheik before hand to advice her of the nature of the meetings, though this may not have occurred for the last meeting she had with Ms Sheik (11 December 2002).
58. Ms Kerr stated that the purpose of the meeting on 11 December 2002 was to give Ms Sheik a copy of a determination upgrading her hours from five to five and a half hours a day, five days a week from 13 December 2002, with the new hours requiring a meal break. Ms Kerr stated that she told Ms Sheik that if she did not agree with the determination she could seek a reconsideration. Ms Kerr stated that Ms Sheik became quite vocal, stating that she viewed the determination as a threat and that she continued to yell at Ms Kerr, stating that she was the cause of all of her problems, how she was feeling and what was happening to her. Ms Kerr stated that she has had not direct contact with Ms Sheik since that meeting; that after the meeting she felt upset because she had been doing her best to assist Ms Sheik, as during her period of association Ms Sheik had progressed from two hours a day, three times a week to five hours a day, five days a week. As a consequence of this meeting Ms Kerr wrote to her acting manager requesting that she be withdrawn from further dealings with Ms Sheik.
59. Ms Kerr stated that she had had problems with Ms Sheik some 12 months earlier when she tried to upgrade Ms Sheik’s hours. Ms Kerr stated that at that time Ms Sheik seemed to agree to the upgrade, but subsequently wrote a letter stating that she did not agree with the upgrade and did not agree with Ms Kerr’s management of her case, as well as making certain personal statements about Ms Kerr. In relation to the determination of 11 December 2002, Ms Kerr stated that she did not consult with Dr Latif, nor did she consult with any doctor, specialist or general practitioner who had provided treatment for Ms Sheik as a consequence of her injury, with reliance placed upon the reports of Dr Maxwell, Dr Adler and Dr Chase.
60. Ms Kerr admitted that Ms Sheik needed a lot of attention and support and that she organised and attended the meeting with Ms Sheik on 11 December 2002 with the perception that Ms Sheik appeared to misunderstand things. Ms Kerr pointed to her case notes which she believes indicated a high level of interaction between her and Ms Sheik in the twelve months prior to the meeting of 11 December 2002, with those interactions being of a positive out-come. Ms Kerr admitted to receiving a letter from Ms Sheik dated 25 November 2002, which expressed criticism of Ms Kerr in relation to the issue of Dr Chase and expressing a feeling of impending or implied harassment, and that in a subsequent discussion she stated that she would arrange a meeting with Ms Sheik and Mr Kirkman to discuss the issues. Ms Kerr also admitted to feeling disappointed in her dealings with Ms Sheik, but it was the meeting of 11 December 2002 in Ms Kerr’s view that curtailed any further dealings, as Ms Kerr did not see it as part of her role to be threatened, intimidated or harassed.
evidence of mr johnston – manager australia post
61. Mr Johnston undertook the investigation of Ms Sheik’s complaint to the Health Care Complaints Commission concerning Dr Chase in November and early December 2002. On 20 February 2003 he met with Ms Sheik to give her a verbal debriefing on the outcome of his enquiries, a matter which he had said he would do to Ms Sheik in his initial meeting with her on 19 November 2002. Mr Johnston stated that Mr Enzon was present at the debriefing on 20 February 2003, and all matters within the complaint were addressed and all were matters addressed in his written report of 7 March 2003 (Exhibit R8). Mr Johnston stated that he posted this report to Ms Sheik to her home address by express post on 7 March 2003, with an expectation that the letter would be delivered to Ms Sheik on 10 March 2003. Mr Johnston, on being made aware of Ms Sheik’s complaint that the letter was in her letter box on 6 March 2003, investigated and traced the delivery process of the letter through Australia Post and found that the item was at the local delivery centre at 23:27 hours on 9 March 2003 (Exhibit R19).
62. Mr Johnston stated that he received a response from Ms Sheik to his report on 2 April 2003 (Exhibit R9). He noticed the contents therein which included an accusation by Ms Sheik in relating to receiving the letter on 6 March 2003 (her version) that this “shows how ruthless, cunning and uncompassionate your system is”.
63. Mr Johnston stated that Mr Burn had given him the complaint by Ms Sheik to investigate, but was unaware of any communication between Dr Chase and Ms Kerr and Ms Kerr with Mr Burn regarding the complaint. Mr Johnston detailed the manner in which he conducted his investigation, the manner in which he kept notes relating to each interview and the manner in which he compiled the final document.
evidence of ms keller – manager rehabilitation section
64. Ms Keller stated that she knew about Ms Sheik in 1997 and first met her in a number of meetings post 2001. She was aware of and had some input into increasing Ms Sheik’s working hours. Ms Keller stated that she attended a meeting on 15 November 2002 with Ms Sheik, Mr Enzon and Ms Kerr at which Ms Sheik’s redeployment and upgrading of hours was discussed together with an offer for Ms Sheik to develop her own schedule of upgrading. A schedule of five and a half hours was discussed, during which Ms Sheik would have an half an hour meal break. Ms Keller stated that during the meeting Ms Sheik stated that she did not feel that she would be able to upgrade beyond the five hours per day.
65. Ms Keller stated that her next contact was a phone contact with Ms Sheik to organise the meeting on 4 March 2003 to discuss Ms Sheik’s behaviour at the meeting on 11 December 2002. Ms Keller stated that Ms Sheik was upset and agitated at this meeting (4 March 2003), that Ms Sheik referred to Ms Kerr using Dr Chase’s name at the meeting of 11 December 2002, which she believed to be improper as the investigation into the complaint had not been finalised. Ms Keller also stated that she did not hear any mention at the meeting of Ms Sheik’s colour, or anyone referring to her as uneducated or unprofessional or a liar.
66. Ms Keller also stated that she had a discussion with Mr Burn in arranging the meeting and why she wanted the meeting, namely to discuss Ms Sheik’s behaviour at the meeting with Ms Kerr on 11 December 2002. Ms Keller also believed that she had spoken to Mr Burn previously about Ms Sheik, as it had been a complex and difficult case to manage. Ms Keller believed Mr Burn had been involved in discussions re Ms Sheik at a meeting in January 2002, and that she had briefed him prior to the meeting in January 2002.
67. Ms Keller stated that she was made aware of Ms Sheik’s complaints concerning Dr Chase by Ms Kerr; that she had reviewed Ms Kerr’s case file notes for Ms Sheik following Ms Sheik’s complaint about Ms Kerr in December 2001, with the file notes being reviewed again prior to the January 2002 meeting. Ms Keller admitted that she had discussed the determination issued on 11 December 2002 by Ms Kerr with Ms Kerr and generally in issuing such a determination consideration is given to medical advice and ongoing certificates issued by the worker’s medical practitioner. Ms Keller stated that requesting reports from treating practitioners was dependent on what medical advice is available regarding the injured worker’s capacity for work. Ms Keller also stated that generally they would always seek treating specialist opinion or consider treating medical specialist opinion on file. Finally, Ms Keller stated that both she and Ms Kerr were aware when the determination was issued on 11 December 2002 that Ms Sheik had already indicated that she was not going to comply with the program. Further, Ms Keller stated that perhaps with hindsight a further meeting should have been held to give her the determination and to give her a greater period of notice of its implementation.
evidence of mr burn – manager work environment unit
68. Mr Burn stated that he attended the meeting on 4 March 2003 and drafted the bones of the document detailing the circumstances of that meeting. Mr Burn denied calling Ms Sheik a liar, uneducated, unprofessional or referred to her as a dangerous person. Mr Burn affirmed that he noted Ms Sheik taking some tablets, that there was no obvious need for concern and the meeting continued for some 15 minutes, at which time he felt Ms Sheik understood that she should treat her rehabilitation counsellor with respect.
69. Mr Burn confirmed that the object of the meeting was to discuss Ms Sheik’s behaviour with her rehabilitation counsellor; that Ms Keller had briefed him on the background issues, with Ms Sheik’s case not being familiar to him; that he was aware of Ms Sheik’s complaint concerning Dr Chase, and had referred the issue to Mr Johnston for investigation, Mr Burn considered that Ms Sheik’s behaviour at the meeting was not aggressive; that in reference to her behaviour in the meeting of 11 December 2002 it was not acceptable and that at no stage during the meeting did he raise his voice.
70. Mr Burn was unable to recall any issue being raised by Ms Kerr in relation to Ms Sheik prior to 2003, and was unable to remember any call from Ms Kerr re Dr Chase on 25 October 2002. Mr Burn was unable to recall any briefing by Ms Keller on the management of the rehabilitation case itself, nor of other problems experienced with Ms Sheik.
evidence of mr enzon – union organiser
71. Mr Enzon stated that he attended the meeting on 4 March 2003 and the meeting commenced with Mr Burn indicating that the issue was Ms Sheik’s behaviour towards a rehabilitation officer. Mr Enzon stated that Ms Keller supported Mr Burn’s comments in relation to Ms Sheik’s behaviour. Mr Enzon described the meeting as becoming fast and furious and that he has little memory for the details of the meeting. Mr Enzon described the atmosphere in the meeting as hostile, because of an absence of expected meaningful discussions. Mr Enzon considered the meeting to be more of an argument between four people, with his only memory of the meeting being the initial comments at the start and trying to get Ms Sheik to a doctor after the meeting. Mr Enzon stated he took her straight to Dr Latif’s office and then to Blacktown Hospital.
72. Mr Enzon stated that he set up the meeting on 4 March 2003 and he was first asked to detail his recollections in April 2005. Mr Enzon believed the meeting’s purpose was to consider the differences of issues in Ms Sheik’s rehabilitation program and at no stage did he object when the meeting was focussed on Ms Sheik’s behaviour towards her rehabilitation officer.
evidence of mr touma – manager internationals clyde
73. Mr Touma stated that he first met Ms Sheik on 14 February 2005 in his office with Ms Swain, in which a work plan for Ms Sheik was agreed. Mr Touma stated that Ms Sheik left after two hours and returned the following morning. Mr Touma stated that as Ms Sheik was doing commercial data entry it was necessary for her to wear safety shoes, and until she has work safety shoes she would be doing sorting and filing. Mr Touma stated that he and Ms Swain instructed Ms Sheik that she was not to lift bundles from the trolleys to her desk, and if no satchels were on her desk she was to seek the assistance of Tina, and if Tina was not available, to see him, or ask one of the staff. Mr Touma stated a wire tray was placed next to Ms Sheik’s desk on 5 April 2005, and if there were no satchels in the tray Ms Sheik was to see Tina. Mr Touma stated that Ms Sheik declined to wear safety shoes because they were too heavy. Mr Touma stated that arrangements were made to have Ms Sheik fitted with special safety shoes, and again Ms Sheik reported they were too heavy.
74. Mr Touma stated that Ms Sheik seemed happy to be starting work on 14 February 2005, and that he did inform her that her job was a mail officer’s job, not clerical with a set of duties advised as appropriate by her doctor. Mr Touma stated that he was unaware of any issues with Ms Sheik, apart from some conflict between Ms Sheik and Ms Swain as to the nature of her duties and the issue of safety shoes. Mr Touma stated that he was unaware of any difficulties experienced by Ms Sheik in relation to the satchels, and expressed surprise that he was not told by Ms Sheik if there were difficulties as he had instructed her to do so. Mr Touma stated that he learnt of the difficulties on 5 April 2005 when Ms Swain visited and he accompanied her during a work place assessment. The issue of desk height was a further issue in question on that date, with Mr Touma believing that to fall within the expertise of the rehabilitation officer’. Mr Touma said Ms Sheik had mentioned some difficulty with filing in the compactus, but he concluded after inspection that there was sufficient space between the bays, but nevertheless he would refer the issue to the expert people.
evidence of mr tallantine – occupational therapist australia post
75. Mr Tallantine stated that he undertook a work place assessment with Ms Sheik on 14 February 2005, during which he examined the weight of the satchels, the height of the desk, the chair and the compactus. It was his intention to undertake a second assessment on 11 April 2005, but Ms Sheik was on sick leave and has been on recreational leave since. Mr Tallantine stated that he was present with Ms Sheik on 14 February 2005, at which time he observed Ms Sheik to be happy, that she was told that should she require assistance to lift the satchels from the trolley, assistance would be made available, but no particular person was nominated. Mr Tallantine provided some examples of safety shoes.
medical evidence
dr gertler – consultant psychiatrist
76. In oral evidence Dr Gertler confirmed his opinion as to Ms Sheik’s psychiatric diagnosis, namely an adjustment disorder with anxious and depressed mood, which he had stated in his report of 7 April 2003 and which has been detailed earlier in this decision. Dr Gertler stated that Ms Sheik’s prognosis concerning the adjustment disorder is uncertain, given a situation in which it appeared that Ms Sheik’s physical condition had not returned to normal. Dr Gertler also considered the psychiatric disorder to have arisen as a consequence of the pain and disability arising from the back injury in 1997.
77. In relation to the overdoses by Ms Sheik Dr Gertler stated that he did not think Ms Sheik was deprived of conscious choice. Dr Gertler did not believe that Ms Sheik had a personality disorder. In forming his opinions Dr Gertler stated he was reliant upon what Ms Sheik had told him and no other documents were made available to him.
78. The issue of Ms Sheik’s two different explanations for her requesting an STD test from her local doctor, the issue of Ms Sheik claiming days off to care for her mother who lived in Fiji, when indeed she was not, the scenario when she is recorded as stating in the clinical records of a hospital to which she went after an overdose that she was ostracised by her family, and her telling the Tribunal that she had never been so ostracised, that Ms Sheik tells the Tribunal that she intended to take her life (second overdose) and that recorded in the clinical notes of the hospital to which she was taken is a statement to the effect that she never intended to take her life, and an allegation that a letter dated 7 March 2003 sent by express post is stated by her to be in her letter box when she returned from hospital on 6 March 2003 was a cunning manipulative ploy by them to cause her upset and distress as opposed to testimony by the writer that the letter was forwarded on 7 March 2003, and there being documentation which can trace the letter’s progress to delivery at least some three days later were all matters put to Dr Gertler. Under such circumstances Dr Gertler stated he would be somewhat concerned about relying at face value upon the history and factual scenario as presented by Ms Sheik and that he would ask to see other documentation. Further, if indeed allegations made by Ms Sheik against particular health providers were not sustained on investigation, Dr Gertler stated he would be concerned to the reliability of Ms Sheik as an accurate historian.
· Dr Baker stated that the depressive disorder was reactive to pain which was ongoing
· Dr Baker’s explanation that Ms Sheik relapsed some two months after the experience is inconsistent with the tenet that the depressive reaction happens fairly close to the time of the external stressor.
109. Dr Walden explained that in her opinion Ms Sheik’s two episodes of overdose in response to discussions on increasing her working hours was a maladaptive way of coping with conflict, with the fact that it is repeated suggesting underlaying personality difficulties. Dr Walden continued by stating that people with poor coping mechanisms tend to attribute it to external factors and say “x happened and that made me do what I did”. In summarising Dr Walden stated that it is common for such people to see the causation as being the external factor, while making no assessment of themselves and their actions in such a matter.
110. Dr Walden stated that Ms Sheik was very firmly of the view that the hours of work that she was doing was as much as she could possibly do because of her pain, with any attempt to make her do more being seen as harassment. Such an attitude coupled with her belief led Dr Walden to believe that Ms Sheik would not be amenable to an upgrade of hours. Dr Walden did not believe that either the belief and/or attitude of Ms Sheik arose from a psychiatric condition.
111. Dr Walden considered that if both Ms Sheik’s general practitioner and neurosurgeon thought 20 hours of work per week is the appropriate limit on fitness for restricted work, an appropriate reaction by Ms Sheik in circumstances when people continue to try and upgrade her hours, would be anger and distress. Dr Walden considered overdosing or a belief that one was being harassed was inappropriate in the first matter and an over sensitive response in the second issue.
112. Dr Walden also considered that Ms Sheik’s responses to questions sometimes was more than a conscious selective response to put the best story forward, but more a deliberate exaggeration to the point that she may well consider it lying. Dr Walden evidenced her consideration by reference to the inclusion of a cardiac arrest in Ms Sheik’s history for Dr Quadrio in relation to the third overdose and Ms Sheik’s comments to her about doctors lying about what she said.
113. Dr Walden was adamant that Ms Sheik chooses to act to take an overdose when she feels stressed. It is a conscious decision, and she does choose the path she went down. While the fact that they go down a rather less adaptive path is not necessarily a choice, at each point when/where they demonstrate a certain behaviour they do have a choice. In Ms Sheik’s circumstances Dr Walden believes she took the overdoses in order to get a specific response, namely not to upgrade the working hours. Dr Walden also commented that people who have personality difficulties see the world in distorted ways so they respond to things in a distorted fashion and as a result their emotions respond with the ups and downs of feeling anxious and depressed and upset and angry. Dr Walden also made the point that it was not the pain that was the source of Ms Sheik’s distress, but rather the conflict about work hours.
dr adler – consultant occupational physician
114. In a further report dated 20 September 2004 (Exhibit R18), Dr Adler, having reviewed Ms Sheik on 27 July 2003, considered that the program proposed on 11 December 2002 was appropriate. Dr Adler noted that Ms Sheik had been under his care in December 2001, in a multidisciplinary pain management program, with the predominant barrier to her participating actively being her personality and frequent attention seeking behaviour. At that time they did not consider that there was no physical incapacity due to her back injury, but that such incapacity was relatively minor in comparison to the psychosocial factors that were impeding her participation in activities. Dr Adler stated that there was little evidence of depression at that time. Dr Adler stated that it was thought likely that her personality style was pre-existing and would probably lead to conflict with authority figures and difficulty managing stress or conflict whatever the environment.
115. Dr Adler, on review, considered that Ms Sheik demonstrated a considerable overall improvement with no pain behaviour evident. Dr Adler stated that Ms Sheik showed no signs of depression and considered Ms Sheik fit to manage.sedentary or semi sedentary duties up to full time with appropriate restrictions.
considerations and findings:
116. I have been particular in documenting relevant aspects of the evidence as told or documented by the participants in this matter. In so doing I am wishing to ensure that the factual issues are fully identified with specialist medical opinions considered and assessed against such circumstances.
117. Firstly, I acknowledge that there is agreement between the parties that Ms Sheik did suffer a serious work related back injury in May 1997, for which she has undergone three low back operations, with the last operation being in October 1999. Further, I note that there is no disagreement that Ms Sheik returned to work on restricted duties and restricted hours in June 2000. Similarly I note that Ms Sheik was paid compensation for permanent impairment to her back and left leg (24 per cent whole person) on 12 March 2002 pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
118. The issues remaining between the parties relate to whether Ms Sheik can return to full time work, albeit on restricted duties. In essence Ms Sheik states that she is unable to work for more than 20 hours per week, with such incapacity arising from her work related physical injury and a psychiatric condition which has arisen out of or been contributed to by her physical injury. The Respondent, on the other hand, while accepting that Ms Sheik has a work related physical injury, contends that Ms Sheik does not suffer from any diagnosable psychiatric condition and that her reticence to upgrade her hours is a consequence of her personality style.
119. I note that Ms Sheik gave evidence over the first and second day of the hearing and intermittently during the last days of the nine-day hearing. I observed that she followed the proceedings with keen interest and that she gave evidence without undue hesitance in answering questions put to her. I note that she displayed little emotion while being questioned, nor did I observe any undue restlessness or irritation during the first two days of hearing.
120. In addressing the issue of whether Ms Sheik was a credible witness, I was left with the firm impression that Ms Sheik believed that she was not capable of working more than 20 hours per week as a consequence of her physical injury and that any attempt to make her increase her hours was simply harassment by anyone who suggested such an activity. As a consequence I observed that Ms Sheik’s evidence was often given in such a way as to support her beliefs. Accordingly when she perceived that she was involved in activities which were in conflict with her beliefs, her evidence was often less reliable, subject to exaggerated statements and denial of observations others may have made. On the other hand Ms Sheik demonstrated by her evidence a relatively reliable rendition of events and their sequence, rather than necessarily the detail within some of those events.
121. In so stating as I have that Ms Sheik’s reliability as a witness is in question, I point to the following circumstances:
· the issue of taking compassionate leave for one or two days at a time to look after a sick mother, when the sick mother was living in Fiji, with Ms Sheik rationalising her activities on the grounds that every other employee has such leave and her supervisor knew and allowed her to proceed;
· the issue of the STD testing, in which on one day Ms Sheik stated that she did not have a boy friend and it was being done because she was concerned that she may have been infected while in the hospital, yet on the next day she stated there was the issue of a prospective male partner, and both decided to undertake such tests prior to any sexual activity;
· the variable descriptions of what tablets were taken in the first overdose (Trytanol to the Tribunal, Tramal to Dr Maxwell and Dr Walden, Tramal and Tryptanol to Dr Jamshidi, Trytanol to Dr Bentivoglio);
· the issue of receiving Mr Johnston’s report dated 7 March 2003 on 6 March 2003, despite it being tracked through Australia Post as express post with delivery expected to occur on 10 March 2003;
· the meeting of 11 December 2002 in which Ms Sheik denies speaking over the top of Ms Kerr, and about which she made accusations of Ms Kerr being biased because of colour and intelligence;
· the issues surrounding the notes made at Royal Prince Alfred Hospital following the overdose and what Ms Sheik stated to the Tribunal;
· her description of the meeting of 4 March 2003 and what was said of her and the evidence of the other four participants;
· her evidence of her behaviour during the pain clinic activity at Westmead and that described by the team in the report of Dr Adler of 3 December 2001, and in his further report of 20 September 2004.
122. In addressing Ms Sheik’s work related back injury, I note that Ms Sheik continues to complain of low back pain, left leg pain and some numbness in the left leg. I note that Dr Bentivoglio, the treating neurosurgeon, concludes that while Ms Sheik has no evidence of neurological compromise in the lower back following a CT scan in April 2002, she continues to have chronic low back pain, neuropathic left leg pain, as well as some permanent numbness in her left leg. Further, I note that Dr Bentivoglio in a report dated 25 September 2002 indicated that Ms Sheik will never be able to work full time and that part time duties are the best she will be ever able to achieve. At that time Dr Bentivoglio noted that Ms Sheik reported an increase in her pain symptomatology whenever her employer tried to increase her activities.
123. Dr Bentivoglio in oral evidence and in his report of 12 April 2005 (Exhibit A13) considered that Ms Sheik’s chronic pain situation prevents her from working full time, with future work being sedentary and with restrictions on lifting, repetitive bending and twisitng up to 20 hours per week. In making such an assessment, Dr Bentivoglio, in relying upon his 25 years of experience with such matters, stated that this was “his gut feeling” on the issue. In so stating Dr Bentivoglio stated that there was clear evidence of nerve compression after the second operation and postulated microscopic examination of the appropriate nerve may show intrinsic damage to the nerve, if ever such could be done.
124. In oral evidence and in his reports Dr Latif, the treating general practitioner, stated that he accepts Ms Sheik’s complaints of pain and had observed that Ms Sheik has complained of pain which has prevented her from increasing her work hours when asked to so do. Further, he recorded Ms Sheik as complaining of constant low back pain on 11 April 2005, when she has been unfairly treated at work, when given duties to undertake, which were incompatible with her restrictions. Dr Latif concluded that Ms Sheik was capable of working 20 hours per week given the severity of her injury, the chronicity of her symptoms and her psychosocial problems.
125. I note that Ms Sheik commenced a return to work program in June 2000 on two hours every second day. This program was initiated after a CT scan investigation in April 2000, neurophysiological studies of the lower limbs (no abnormality detected) and an assessment by Dr Trevitt (orthopaedic surgeon). Dr Maxwell in March 2001 considered Ms Sheik to be still partially incapacitated, but recommended her hours of work be upgraded to five hours a day, five days a week from three hours per day, three days a week.
126. I note that Ms Sheik attended at the Westmead “Back to Life” program in the second half of 2001 at the suggestion of Dr Bentivoglio. I note Dr Adler’s report of 3 December 2001 in which he notes the behavioural difficulties exhibited by Ms Sheik during the program. I note that despite the observations made, Dr Adler and his team recommended that Ms Sheik’s hours of work be increased to five hours per day, five days a week with further upgradings over a three month period to full time hours, in sedentary or semi sedentary duties with nominated restrictions. Dr Adler also commented that “I was somewhat perplexed as to her high levels of disability in the face of modest levels of spinal impairment”. Dr Adler considered that Ms Sheik’s level of disability relates to maintaining a control over her environment, as she does not have well-developed interpersonal communications skills.
127. I note that Ms Sheik worked five hours a day, five days a week from October 2001 to 11 December 2002 at Strawberry Hills, while thereafter it would appear she has actually been working five hours a day, four days a week.
128. On 13 September 2002 Dr Chase reported that there was no physical reason why Ms Sheik could not upgrade to full hours over a ten-week period. Dr Chase also noted that “her current psychological state is a result of the complex interactions that occur as a result of initial maladaptive coping strategies, her intrinsic personality, her social isolation and loneliness, her depression and her pain”. Dr Chase concludes “unfortunately I feel that the likelihood of success is low. She has undeveloped pathology and no insight into her psychological problems. Furthermore she can see no good reason to return to full duties”.
129. I also note in Dr Adler’s report of 3 December 2001 a reference to an MMPI psychometric study which was reported as indicating “that her calm and pleasant presentation is a façade and part of her maladaptive coping style. In addition to having developed extreme sensitivity to the experience of pain, she has become very dependent and helpless. This makes her angry and resentful. The anger is directed towards any person who does not meet her needs or expectations. As a result of this, attention-seeking behaviour can be exhibited as a strategy to emphasise the suffering and a desire to be understood. Such a personality profile may limit the outcome of the program. Her coping style is relatively fragile”.
130. I also note the report of Ms Harrington, a clinical psychologist, of 6 September 2002 in which she detailed the following comments:
“It will be important that the expectations placed on Ms Sheik are made clear to her and any issues or difficulties addressed with line mangers as early as practicable.
I would recommend that her psychiatrist or GP be consulted (and if possible involved) in advising Ms Sheik of any future changes to her rehabilitation plan to ensure that her mental health needs are adequately met by the appropriate practitioners.”
131. I now return to the employment narrative, where it is noted that Ms Kerr (rehabilitation counsellor) pursued a program of increasing Ms Sheik’s work hours. This resulted in a confrontational episode on 3 December 2001, in which Ms Sheik became angry and upset, and later that night at home took an overdose of Trytanol tablets.
132. Ms Sheik was assessed by Dr Walden (psychiatrist) on 30 January 2002. Dr Walden records Ms Sheik as going into depression when she received a further letter from Ms Kerr regarding upgrading of hours. Dr Walden detailed her opinions, which have been detailed earlier in this decision. In essence Dr Walden considered that Ms Sheik did not have a psychiatric disorder; that she does not have a depressive illness, but she does have an enduring personality style which predates her compensable back injury and which has made it more difficult for her to cope with injury. Dr Walden cautioned that attempts to increase her hours of work might well lead to further outbursts.
133. Dr Baker became Ms Sheik’s treating psychiatrist after the overdose in December 2001, and diagnosed Ms Sheik with a depressive disorder and chronic back pain and increased her dose of Zoloft and commenced a course of cognitive behaviour therapy with noted improvement over a six week period.
134. It is noted that Australia Post continued to pursue a program of trying to increase Ms Sheik’s working hours in the second half of 2002. A further confrontation with Ms Kerr occurred on 11 December 2002 in relation to the issuing of a determination increasing Ms Sheik’s working hours to full time over a ten week period. Ms Sheik took an overdose on that day.
135. Ms Sheik was further assessed by Dr Walden on 5 February 2003 and in her report Dr Walden confirmed her earlier diagnosis while indicating that Dr Baker has underestimated the impact of personality style and coping mechanisms and over estimated the presence of an actual depressive disorder.
136. A further episode of confrontation occurred at the meeting on 4 March 2003 after which Ms Sheik took a further overdose. On 7 April 2003 Dr Gertler, a psychiatrist, assessed Ms Sheik on behalf of her solicitors and concluded that Ms Sheik was suffering from an adjustment disorder as a result of the physical sequelae of her back and this was associated with anxious and depressed moods.
137. On 10 April 2003 Ms Sheik was assessed by Dr Roldan, a clinical psychologist. Dr Roldan concluded that Ms Sheik did not suffer a psychological injury as a result of the three overdose incidents; that Ms Sheik did not lose her power of violation during such episodes; that Ms Sheik will continue to exhibit personality difficulties and associated maladaptive coping mechanisms.
138. Dr Quadrio assessed Ms Sheik on behalf of her solicitors and in her report dated 21 April 2004 she concluded that Ms Sheik was suffering from a chronic anxiety disorder (generalised anxiety disorder) and a chronic pain disorder. Dr Quadrio also recognised that Ms Sheik’s personality structure was not one, which could cope with a major injury and significant surgical intervention.
does ms sheik have a psychiatric condition
139. Throughout this decision I have been at pains to outline the psychiatric and psychological evidence before the Tribunal. I note that there is singular agreement amongst the psychiatrists in this matter that a diagnosis of personality disorder cannot be made on the history available. I accept this outcome.
140. I further note that various clinicians (Dr Bentivoglio, Dr Chase, Dr Maxwell) mention that Ms Sheik was depressed. I note the diagnosis of depressive disorder made by Dr Baker in his various reports. I observe that he is the treating psychiatrist and that Ms Sheik was one of his early patients as a consultant psychiatrist. I note that it was his practice to accept what his patient told him. I note the symptoms, which he defined as being indicative of a depressive disorder. I also note that he considers that the depressive disorder was a consequence of the chronic pain. I note his explanation that Ms Sheik was not depressed immediately after her experience of giving evidence for two days and his explanation as to why it was evident some two months later in July 2004.
141. I do not accept Dr Baker’s diagnosis of depressive disorder for the following reasons:
· the history of being depressed as recorded by other doctors is evidence of mood depression, not necessarily a depressive disorder. Mood variation is a normal response to everyday situations, and there is no suggestion that on some days Ms Sheik would as she herself described feel sad.
· the history as recorded by Dr Walden and Dr Roldan is that Ms Sheik felt that her depression came on as result of the meeting and receiving a letter from Ms Kerr on 3 December 2001, not in relation to chronic pain;
· that Drs Walden, Roldan and Quadrio have detailed these reasons as to why a diagnosis of depressive disorder is not appropriate;
· that Dr Gertler believes that Ms Sheik has an adjustment disorder with depressed mood;
· that Ms Sheik showed no evidence of either a depressive disorder or an anxiety disorder during her two days of giving evidence as evidenced by the opinions of Drs Walden, Roldan and Quadrio;
· that Dr Walden was skeptical of Dr Baker’s concept of a delayed response some months later after her experience of giving evidence at the Tribunal.
142. In turning to Dr Gertler’s diagnosis, I note that during his oral evidence in relation to compassionate leave, STD testing etc, Dr Gertler responded by stating that he would have concerns as to the accuracy of Ms Sheik as a historian. Further, he would have some difficulty in relying at face value upon the history and factual scenario as presented by Ms Sheik, and would wish to see other documentation. I also note Dr Quadrio’s diagnosis of chronic anxiety disorder, which is somewhat adjacent to that of Dr Gertler, and her reasoning for her diagnosis.
143. I have difficulty with both diagnosis for the following reasons:
· Ms Sheik has stated that her psychiatric sequelae are in response to particular situations, which inevitably involved anger, hostility and conflict;
· that Ms Sheik demonstrated no evidence of either disorder during her two days of giving evidence, when indeed Drs Walden, Roldan and Quadrio and Baker would have expected some symptoms to emerge;
· that Dr Walden and to a lesser extent Dr Roldan did not agree with such diagnosis.
144. Finally, I accept the opinions of Dr Walden and Dr Roldan that Ms Sheik has had no psychiatric disorder and that her inappropriate response to situational circumstances are a consequence of a personality style which has maladaptive coping mechanisms. I note that such maladaptive coping styles were first mentioned in Dr Adler’s report of 3 December 2001 and I further note the advice nominated within that report as a result of the psychometric evaluation using the MMPI. Unfortunately all that was warned about has come to pass, even though such advice was reinforced by Dr Walden in her first two reports, by Ms Harrington in her report of September 2002 and by Dr Chase in his report of September 2002.
145. I note the report of Dr Roldan and his psychometric evaluation tests, all of which suggesting that Ms Sheik was likely to exaggerate and/or over report her clinical symptomatology. I also note that both Dr Roldan and Ms Harrington were of a shared opinion as to Ms Sheik’s intelligence and abilities to be retrained in clerical/administrative duties.
146. I also acknowledge that Ms Sheik’s personality style pre-existed the back injury as evidenced by the opinions of the psychiatrists, with there being evidence of such a personality style with her explanation as to why she believed her application for compassionate leave was appropriate.
147. By virtue of the personality style being pre-existent, it is evident that both her attending and consultant clinicians as well as her employer will experience difficulty in understanding the continuing symptomatology of her physical injury and subsequent treatment experiences in the face of the maladaptive coping mechanisms that have been so much in evidence. It is, as I understand, that the personality style giving rise to the maladaptive coping mechanisms is a given constant. It is further understood that such coping mechanisms are behaviourally exercised when a situational circumstance is creative of stress and conflict. It is also to be understood from Dr Walden’s oral evidence that such maladaptive coping mechanisms are triggered in response to the stressor situation with the individual retaining control over the choice of the behavioural response.
148. It is evident that Ms Sheik has endured work related physical trauma. This alone has left Ms Sheik with residual physical symptomatology, which will have an affect on her ability to work, and this has been subject to assessment by numerous clinicians. However, it is her personality style that is determining the maladaptive coping mechanisms when Ms Sheik responds to circumstances which impinge a strongly held belief that she is now only able to work 20 hours per week. It is further evident that her personality style is neither caused nor contributed to by the work-related injury.
149. In further exploration I note that Ms Sheik holds a firm belief that 20 hours of work per week is the maximum that work related injury allows her to do. Her treating clinicians, Drs Bentivoglio, Latif and Baker have variously assisted her in arriving at such a view by continued reference to part time work outcome and lately a 20 hour per week outcome. In making such opinions the doctors have without doubt been subject to and accepted in whole or in part complaints of continuing symptomatology by Ms Sheik. In turn, against such a background they have applied their experience to an analysis, which has resulted in their recommendation as to how much work Ms Sheik should be able to perform.
150. In such circumstances it is appropriate to conclude that they have made a material contribution to the view held by Ms Sheik as to how much work she is able to perform. That such a belief is one thing and a belief to which Ms Sheik is entitled to hold. However, when the belief is tested by opinions from other clinicians, the maladaptive coping mechanism which come into play takes the matter no further, for these mechanisms are borne of personality style, which was not caused or contributed to by the injury. In short the decision not to work more than 20 hours a week stills rest primarily with a belief that she is unable to do so, coupled with a personality style and maladaptive coping mechanism which will ensure that she will not.
151. The question remaining for consideration is whether her personality style would allow her to consider alternate clinical opinion that she was physically capable of doing extra hours as suggested by Drs Chase and Adler. The simple answer to this is no, with a consequent conclusion that work hours lost beyond the twenty hours per week is a consequence of the personality style in action. Again this has no relation to her work related injury.
152. I note the judgement of the Full Court in Kirkpatrick v Commonwealth (1985) 9 FCR 36 and their reference with approval to the Full Court decision in Australian Telecommunications Commission v Tsikas, Re (1985) 5 AAR 173 at p 195 where Sweeney and Woodward JJ stated:
“There is of course an important difference between on one hand the sequelae making a sick mind sicker, and this perhaps contributing to the incapacity, and, on the other hand, a sick mind latching on to the factors described so that, in one sense they play a part in the illness, but not in such a way as to add to existing incapacity.”
153. In essence this quotation summarises the circumstances of this matter. Ms Sheik had a frank compensable injury. Ms Sheik has latched on to a belief, which if challenged brings maladaptive coping mechanisms into play which are born of a pre-existing personality style. While they play a part keeping Ms Sheik away from work they add nothing to the existing incapacity arising from the work-related injury.
THE DECISION UNDER REVIEW
154. In relation to Ms Sheik’s claim for compensation for depression (N2002/1821) I affirm the decision under review. In so doing I rely upon reasons given earlier in this decision. From these reasons it is evident that I preferred the opinions of Drs Walden and Roldan, while concluding that the opinions of Drs Baker, Gertler and Quadrio were deficient in the light of the considerable material before the Tribunal.
155. In relation to matter N2003/898, namely the issue of the rehabilitation program issued by way of determination on 11 December 2002, I make the following comments:
(a) The written assessments of Dr Adler and Dr Chase were particular in detailing a physical appreciation whereby Ms Sheik could increase her work hours to full hours over a defined period. However, both assessments detailed the issue of maladaptive coping mechanisms and the response engendered if Ms Sheik’s fragile equilibrium was threatened.
(b) Assessment by Dr Walden on 30 January 2002 was neither referred to or made available to Dr Chase.
(c) No attempt was made to receive input and/or participate in a program to upgrade Ms Sheik’s hours from any of Ms Sheik’s treating clinicians, namely Drs Bentivoglio, Baker and Latif in December 2001 and 2002.
(d) Vocational assessment by Ms Harrington was neither referred to or forwarded to Dr Chase for consideration.
(e) No consideration was given to the employee’s attitude to the program, other than consequences being mentioned if she does not participate, and a knowledge that it was unlikely she would participate (evidence of Ms Keller).
(f) The program determined that the upgrading of hours would come into effect in two days, recognised that it was inconsistent with the current medical certificate from Dr Latif and allowed insufficient time for Ms Sheik to consult with her treating practitioners.
(g) In affirming the primary determination it is noted that Mr Burn did take into consideration the report of Dr Walden of 30 January 2002, but not her report of 5 February 2003, and not the report of Ms Harrington of September 2002, nor any reports from the treating doctors.
(h) In evidence Mr Burn stated he had little knowledge of Ms Sheik’s case, but in other evidence before the Tribunal Ms Keller made it evident that Mr Burn had been at a meeting in January 2002 after Ms Sheik’s first overdose, and he had been briefed prior to the meeting. Secondly, he had been briefed prior to the meeting of 4 March 2003 by Ms Keller and a meeting, which he chaired, which led to a third overdose by Ms Sheik. Thirdly he was aware of a complaint raised by Ms Sheik concerning Dr Chase in September 2002 - the complaint which the Health Care Complaints Commission referred to him for investigation. In such circumstances, I have some difficulty in accepting Mr Burn’s claim that he had little knowledge of Ms Sheik’s case. In such circumstances I would question the appropriateness of Mr Burn being the reconsideration officer in this matter.
(i) The evidence by Ms Keller that it was generally standard practice in complex cases to seek treating specialist’s opinion or consider treating medical specialist’s opinions on file.
(j) The evidence by Ms Keller that in hindsight a further meeting should have been held to give her the determination and to give her a greater period of notice for its implementation.
156. Clearly my view is that the determination issued on 11 December 2002 was not an appropriate determination for the reasons listed in the earlier paragraph. More importantly and of more concern the determination ignored any concept of the behavioural responses which Ms Sheik was likely to and did make, and behavioural responses predicted to occur by almost everyone who had previously seen her for assessment. It is unfortunate perhaps that Ms Sheik’s maladaptive coping responses are so predictable, but I am at a loss as to why the repeated warnings were ignored by trained rehabilitation staff, with subsequent win/lose strategies being adopted to finalise a complex case, rather than accepting the complexity of the case and pursuing strategies that would be encompassed in a rehabilitation program aimed at dealing with the behavioural as well as the physical aspects. I also recognise that distance, time and an opportunity to reflect upon the circumstances in the light of further professional opinion have helped to focus the assessment I have made, this being an opportunity not necessarily available to the rehabilitation staff of whom I have been somewhat critical.
157. I further consider the concept of the meeting of 4 March 2003 ill advised, particularly in the light of Dr Walden’s second report after the second overdose. Again the behavioural response by Ms Sheik was as had been predicted in the Adler report of 3 December 2001 and by many clinicians thereafter.
158. My decision in relation this issue is that the rehabilitation program was not an appropriate program pursuant to section 37 (3) of the Act and that the decision in matter N2003/898 be set aside.
matter no n2003/863 – incapacity payments
159. I have already detailed my reasoning in relation to the part played by Ms Sheik’s personality style in my overall assessment. As a consequence, while her personality style and maladaptive coping mechanisms will cause Ms Sheik to lose time from work, such loss of time is not compensable.
160. I have noted that at one stage from October 2001 to 11 December 2002 Ms Sheik worked five hours per day, five days per week. I note that this is now five hours a day, four days a week. The decision to work such hours is the consequence of a belief held by Ms Sheik, and is contrary to that held by Dr Adler in his reports of 3 December 2001 and September 2004 and that held by Dr Chase. While I respect the opinions held by the treating clinicians and particularly that of Dr Bentivoglio, I recognise that their opinions are based on Ms Sheik’s self-reporting of symptoms and that they have not necessarily had access to the significant amount of clinical material and other clinical opinions made in this matter. It is for those reasons that I prefer the opinion of Dr Adler (representing his team), Dr Chase and Dr Adler.
161. As a consequence I affirm the decision under review, but would suggest that such determinations when issued should clearly define that such a determination is for compensable purposes only, no doubt an outcome that an individual will understand when payment is received for hours of work undertaken.
matter N2003/1439
162. I note the circumstances of the claim for compensation. I note the circumstances in which the overdose, which led to the seizures, was taken. I note the opinions of Drs Walden, Gertler and Roldan that the taking of the overdose was a voluntary act by Ms Sheik.
163. Further, I note the finding of the Full Court in Hart v Comcare [2005] FCAFC 16 which is particular in its interpretation of the definition of injury within section 4 of the Act and the exclusion from the definition contained within section 14 (3) of the Act. In section 14 (2) the Act excludes an injury which is intentionally self-inflicted. I understand it matters not that even if there were other contributing factors which led to the circumstances where a self-inflicted injury is sustained, the injury, provided it is self-inflicted remains excluded. The evidence in this matter is that the overdose leading to the seizure was voluntarily taken.
164. I therefore affirm the decision under review in matter N2003/1439.
costs
165. Costs are payable by the Respondent for the Applicant’s costs in relation to matter N2003/898 in accordance with the Tribunal’s Practice Directions.
166. Costs are not awarded in the other three matters.
I certify that the 166 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: Niamh Kinchn .....................................................................................
Associate
Date/s of Hearing 15, 16, 17 and 18 November 2004, 19, 20, 21 April 2005, 3 May 2005
Date of Decision 22 July 2005
Counsel for the Applicant Mr Leo Gray
Solicitor for the Applicant Mr M Coorey
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Mr L A Forner
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