Teresa Carbone and Comcare
[2014] AATA 376
[2014] AATA 376
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4686, 2013/3314, 2013/4023,2013/4776, 2014/0795
Re
Teresa Carbone
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 16 June 2014 Place Canberra The decisions under review are affirmed.
.......................[sgd]......................
RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employee – accepted back condition - whether suffered psychiatric injury secondary to accepted injury - whether suffered aggravation of injury in March 2013 – whether hours of work under return to work program were reasonable – whether reasonable excuse not to undertake return to work program – whether continues to suffer the effects of compensable injury – whether suffered aggravation of her psychiatric disorder.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) sections 4, 5A, 5B, 14, 36, 37 and Part II, Div 3.
Cases
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Comcare v Mooi (1996) 69 FCR 439
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Secondary Materials
American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, revised in 2000)
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Teresa Carbone, born 1970, has five claims before the Tribunal. Ms Carbone has an accepted claim for ‘aggravation of lumbar sprain and sciatica’ (accepted condition) sustained on 30 April 2009. The claim was accepted on 21 August 2009. Other claims are secondary to, or arise out of that claim.
Matter 2012/4686
Ms Carbone, on 14 July 2009, had sought compensation for a psychological injury claimed to be secondary to the effects of an aggravation of her accepted condition of lumbar sprain and sciatica. She claimed the condition was sustained on 30 April 2009 and was first reported to the doctor on 4 May 2009. Comcare decided on 8 November 2011 to deny liability, a decision affirmed by Comcare on 20 March 2012. Ms Carbone sought further review by the Tribunal on 18 December 2012.
Matter 2013/3314
Ms Carbone had sought compensation for an ‘aggravation of lumbar sprain and sciatica’ in the period 5 March 2013 to 8 March 2013. The claim was refused, a decision upheld by a reviewable decision dated 22 May 2013. Ms Carbone sought further review by the Tribunal on 10 July 2013.
Matter 2013/4023
Ms Carbone sought review of a decision, dated 1 September 2011, as to the hours she should work under a graduated return to work plan in the period 19 August 2011 to 30 November 2011. The reviewable decision, dated 24 November 2011, upheld the original decision as to hours. Ms Carbone sought further review by the Tribunal on 16 August 2013.
Matter 2013/4776
Ms Carbone sought review of a decision of 15 August 2013 that as at 14 August 2013 denied her compensation for an aggravation of an accepted condition of lumbar sprain and sciatica, under section 14 of the Act on the ground that she no longer suffered from the accepted condition. A reviewable decision of 9 September 2013 upheld the original decision. Ms Carbone sought further review by the Tribunal on 24 September 2013.
Matter 2014/0795
Ms Carbone sought compensation for ‘an aggravation of generalised anxiety disorder’ said to have been sustained on 6 May 2012 and in February 2013. By reviewable decision dated 13 February 2014 Comcare upheld the original decision dated 29 November 2013 which denied the claim. Ms Carbone sought further review by the Tribunal on 14 February 2014.
The Tribunal is satisfied that it has jurisdiction to hear all the matters involved in the various claims. A hearing was held in Canberra on 10, 11, 14 and 15 April 2014.
Background
The background under the first heading chronicles some of the events which are relevant to claims other than Matter 2012/4686. Facts relevant to other matters are dealt with under the specific matter heading.
Matter 2012/4686
Ms Carbone has been employed in the Australian Public Service for close to thirty years. At the relevant times, Ms Carbone was an officer at a level equivalent to the Australian Public Service (APS) level 3/4 or 4/5. There was some dispute about the equivalence of her position given the nomenclature for positions used by one of the agencies against which claims are made.
Her relevant employment history is that she commenced work with the Australian Customs and Border Protection Service (Customs) on 22 February 2007. She commenced employment with the Department of Immigration and Border Protection (Immigration) on 1 May 2012. These are the two agencies involved in her applications. At times involved in these applications Ms Carbone has also been employed at weekends or after hours with other private sector bodies.
Ms Carbone was involved in a motor vehicle accident on 14 June 1996. Although the police report indicated she suffered no injuries in the accident, on 18 June 1996 Ms Carbone and her mother attended a police station to report whiplash injuries. They claimed that the injuries meant they were unable to work and required physiotherapy.
Ms Carbone sustained further injuries in motor vehicle accidents in March and May 2008. In the first accident, she sustained low back pain and lateral left leg and foot pain, jaw pain and head tension. In the second accident she sustained neck pain and exacerbation of low back pain, both conditions being present after the first accident. She made claims arising out of these accidents through her motor vehicle insurer.
As part of this legal process, an x-ray of her lumbar spine taken on 20 November 2008 showed a scoliosis complex to the left, endplate change and loss of disc space height at L2/3. A CT of her lumbar spine on 19 December 2008 confirmed the scoliosis complex to the left, and also showed anterior endplate spurring and disc height reduction at L2/3 and L3/4 with mild annular disc bulges at these levels. There was also a disc bulge at L4/5.
At times relevant to these applications, Ms Carbone was attending two medical practices: the Wattle Street Clinic, from 13 July 2005 until 29 June 2009; and the Ginninderra Medical Centre, from 20 January 2007. On eight occasions between 31 March 2008 and 20 March 2009 she sought medical treatment from the Wattle Street Clinic for back pain due to these accidents.
Her then treating practitioner, Dr Libby Goodchild, reported to Ms Carbone’s insurer that Ms Carbone had noticed neck pain, upper and lower back and left leg pain immediately after the motor vehicle accident on 15 March 2008. Dr Goodchild said Ms Carbone’s neck and upper back pain improved but the lower back pain increased. The doctor also said that on 11 April 2008 Ms Carbone had complained of increased back pain as a result of a fire drill at work where she had been required to walk down seven flights of stairs.
On 1 June 2009, Ms Carbone submitted an incident report at work. The incident was said to have occurred on 30 April 2009 when Ms Carbone had sat on a broken chair for three days while attending a course. Ms Carbone said she mentioned it to the convenor of the course on the first day but it was not until day three when the chair dropped significantly when she was sitting on it that the convenor took action to provide alternative seating.
Ms Carbone was admitted to the emergency department of a local hospital on 22 June 2009. Admission was for ‘Back pain 6/52’. The report also records her as suffering from ‘anxiety’. While in hospital she suffered a collapse when returning to bed, accompanied by a spasm. She had low blood pressure, but recovered quickly. She complained that the pain at the time of her admission was 10/10, but returned to 5/10 as she recovered.
Ms Carbone attended Ergogym between September 2008 and December 2008 where she received physiotherapy, massage therapy and saw a psychologist. Ms Carbone also attended Pilates’ classes. After June 2009, Ms Carbone attended another physiotherapist. A physiotherapy discharge summary provided to Dr Barraclough on 3 December 2009 reported Ms Carbone had progressed well and felt able to self-manage.
In June 2010, Ms Carbone went overseas on a bus tour, only returning to work in August 2010. Ms Carbone said while she was on the bus tour, lengthy sitting exacerbated her back pain causing her to rely on several forms of pain-killers and she had to cut short her time on the tour. On her return, she has been doing Pilates twice a week, gym four times a week, and walked once or twice a week.
On 8 October 2010, Ms Carbone sustained injuries in a ‘slip and fall accident’ in the Canberra Centre. Her claim listed injury to back, aggravation of pre-existing injury to back, whiplash, injury to shoulder, bruising to knees and shock. Particulars of disability were pain and limitation of movement of back, sciatica and leg pain on left side, aggravation to sciatica on right side, aggravation to pre-existing injury to back, anxiety and depression. The effects of the injuries were listed as interference with capacity to work and necessity to undertake a graduated return to work program, interference with capacity to undertake leisure, necessity to undergo care of general practitioner and a psychologist and for neurosurgical review, and need for physiotherapy, acupuncture and massage therapy, and to take analgesia and anti-inflammatory medication. Ms Carbone also made a claim for past and future domestic assistance. On 1 August 2012, judgment was entered for Ms Carbone.
Ms Carbone was involved in a further motor vehicle accident on 17 September 2011 involving a rear end collision. She said she developed neck pain with dizziness, nausea, jaw pain and low back pain but recovered.
Ms Carbone had another CT scan on 12 of April 2013 which revealed multilevel annular bulging and disc protrusion with nerve root impingement. The bulging at the L2/3 level was minor. At the L3/4 level, there was disc space narrowing with impingement on the existing right L3 nerve root, and bilateral facet joint degenerative changes. At the L4/5 level, there was disc protrusion with impingement on the budding L5 nerve roots and diffuse annular bulging impinging on the exiting right L4 nerve root and bilateral facet joint degenerative changes. Finally, at the L5/S1 level, there was diffuse bulging and disc protrusion with no nerve root impingement.
Matter 2013/4023
This claim concerns a return to work program for Ms Carbone. From November 2009 Ms Carbone was working in the Systems Testing section of Customs. Ms Carbone complained that the furniture in the testing laboratory was not ergonomically designed and this caused increased stress on her neck, back and arms. She underwent a work station assessment in November 2010 and some changes were made to her work station. Changes could not be made to the testing laboratory because of the nature of the equipment. However, Ms Carbone was advised to spend as little time as possible in the lab and that she should take breaks when working there.
On 28 January 2011 Ms Carbone had a discussion with her director about work behaviours. This upset Ms Carbone and she was certified unfit for duties for close to two months until 1 March 2011.
On 31 January 2011, Ms Carbone was referred by Customs for an Initial Needs Assessment due to her accepted back condition. A report was provided on 14 February 2011 concerning a return to work program (RTWP). The report noted that Ms Carbone had been certified unfit for work until 1 March 2011 and on her return she would be cleared for ‘modified duties with lifting restrictions and appropriate rest breaks’.
The history of Ms Carbone’s return to work program can be summarised from the reviewable decision as follows:
·29.01.2011: Dr Barraclough recommended a rehabilitation provider be appointed and on 31 January 2011, a referral for rehabilitation assessment was made.
·14.02.2011: An assessment was undertaken for the purpose of developing an appropriate RTWP.
·15.02.2011: The employer established the RTWP which was to continue until 31 May 2011.
·14.06.2011: The RTWP was amended and the end date was extended to 30 September 2011.
·10.08.2011: Ms Carbone was assessed under section 36 of the Act by Dr Virginia Pascall, occupational physician, who provided a report dated 9 September 2011 that Ms Carbone was capable of working 4 hours a day 5 days a week for the next 8 weeks and, if she was managing, thereafter her hours would gradually be increased to full-time.
·19.08.2011: Ms Carbone was warned that her entitlements to compensation would be suspended unless Ms Carbone recommenced the RTWP or provided reasons not to do so.
·1.09.2011: The RTWP was amended with a new end-date of 30 November 2011.
·14.09.2011: The rehabilitation case manager notified Ms Carbone that she was to commence working 20 hours per week from 26 September 2011 with a graded increase to full-time hours.
·15.9.2011: The case manager advised that if Ms Carbone did not comply with the hours recommended in Dr Pascall’s report there could be grounds for suspension.
·Ms Carbone requested a reconsideration of the RTWP and the outcome of Dr Pascall’s report.
·30.09.2011: The RTWP was amended with a new end-date of 31 January 2012.
Dr Thew, Ms Carbone’s then general practitioner, had signed the initial plan by 23 February 2011. Ms Carbone had not. On 8 March 2011, Ms Carbone’s supervisor provided a new list of suitable duties which would not include lifting, standing for long periods or manipulation of equipment, other than a computer, and that she would be encouraged not to spend large periods of time at the computer. Ms Carbone continued to take considerable days of leave and had not signed the RTWP. By August 2011, six months later, the program had not formally commenced although in practice Ms Carbone, when at work, was complying with the hours recommended.
At a meeting concerning the plan on 18 August 2011, Dr Thew announced she would no longer provide medical certificates certifying Ms Carbone unfit for work. Ms Carbone then prematurely left the meeting and subsequently transferred to a new general practitioner, Dr John Broderick. On 26 August 2011, Dr Broderick cleared her to commence a graduated return to work program. Ms Carbone complained on several occasions about insufficient work.
At the meeting on 21 July 2011, suggestions for addition work were made to and accepted by Ms Carbone. There was also discussion of timing of Ms Carbone’s Comcare approved medical appointments and the need for Ms Carbone to schedule these when she was not at work, rather than during her proposed work hours.
On 25 July 2011, the injury management officer wrote to the Ginninderra Medical practice concerning a range of duties to be included in the return to work plan. The duties enabled Ms Carbone to stop and start, and change posture as needed. The list of duties as provided by the Injury Management Advisor were:
·Electronic and manual filing of documents
·Restructure and consolidation of SmartGate electronic filing structures into a single structure;
·Archiving of older documents;
·Provide assistance with analysis of SmartGate statistics;
·Identification of observable patterns in SmartGate incidents/problems to determine trends;
·Arranging travel and accommodation for contractor personnel and entering travel requests into the Travel Management System (TMS);
·Coordination of weekly team meeting, including making room bookings, updating of agenda and advising team members of the time and location; and
·General administrative support.
Following further complaints by Ms Carbone about insufficient work, Ms Carbone was moved to a different section and an updated list of duties was drawn up as at 7 December 2011 as follows:
Current duties
·Coordinate the reporting of monthly financial accruals;
·Coordinate and provide secretariat support for project governance committees;
·Coordinate the review and distribution of Operations Committee reports;
·Use QSP to prepare purchase orders, process invoices and acknowledge receipt of goods and services;
·Arrange travel for contractor staff in accordance with internal guidelines;
·Provide business support to the Manager, Enabling Strategies;
·Assist with the development of IRC submissions, business planning and Branch and section Plans;
·Assist with the coordination of project schedules, risk logs, project plans and project reports;
·Conduct filing and record keeping tasks; and
·Provide statistical support as directed.
Additional Duties (week of 7 December 2011)
·Collect and deliver mail twice daily;
·Conduct stationary ordering and refilling of stationary cupboard;
·Set up meeting room 35.05 daily, ensuring:
oWhite boards are cleaned
oRoom is in a tidy state
oSufficient whiteboard markers are available;
·Load CSD and CSL printers with new paper each morning;
·Order and install printer cartridges as required;
·Escort visitors as required;
·Conduct a visual check of security containers prior to leaving for the day. Where other staff are still around, they will be responsible for this task;
·Act as move coordinator for any future block and stack moves;
·Coordinate the provision of briefs;
·Monitor and manage the Passenger Reporting Inbox daily.
Ms Carbone is recorded by Dr Pascall as saying, at that time, that after her reduced hours were introduced in September 2011, and following the motor vehicle accident on 17 September 2011, ‘she needed the reduced hours for motor vehicle accident, not for [the] work-related claim’. By 21 January 2012, Ms Carbone was working 7 hours a day. She sought and obtained an alternative position in Immigration commencing 1 May 2012.
On 30 August 2011, Ms Carbone was certified by Dr John Broderick as fit for modified duties from 1 September 2011 to 9 September 2011. On 6 September 2011, Dr Buckman provided Ms Carbone with a fitness for modified duties certificate for the period 8 September 2011 to 23 September 2011. Dr Wahab, another doctor in the Ginninderra Medical practice, certified her as unfit for employment for 6-7 September 2011 but fit for modified duties from 9 September until 25 September 2011. Dr Michael Cameron, also a doctor in that practice, certified her unfit for duty on 13 September 2011. On 16 September, Dr Broderick certified her fit to return to full-time hours from 19 September 2011 to 30 September 2011, while noting she was unfit to work for 15-16 September 2011.
Despite short periods when she was certified unfit for work after the motor vehicle accident on 17 September 2011, Ms Carbone’s doctors generally certified her as fit for her restricted program of duties to December 2011.
Dr Pascall in her supplementary report dated 18 March 2012, noted that Ms Carbone ‘can proceed with her Graduated Return to Work Plan as though the motor vehicle accident had not occurred and clearly has done so for the past four months’. In her view existing restrictions remained suitable. At the same time, Dr Pascall expressed the opinion that Ms Carbone suffers ‘from a significant personality disorder of which her anxiety is one manifestation and that her perceptions of her workplace environment and the tasks she is given, the manner which she is treated, effectively make her unemployable’.
Matter 2013/4776
Ms Carbone lodged a workers compensation claim for incapacity payments and medical treatment on 14 July 2009 for aggravation of her accepted injuries relating to her lower back and sciatica, with a date of injury 30 April 2009. The reviewable decision of 9 September 2013 was that Ms Carbone did not suffer any present effects of her aggravation condition as at14 August 2013.
The medical evidence relating to this claim is as follows. The clinical records of the Ginninderra Medical Centre on 30 April 2009 refer to ‘Back’ but there is no other comment. There is no further notation until 4 May 2009 when the clinical note refers to ‘recurrent LBP [low back pain] & R leg pain following 2 v MVAs in March 08 & May 2008. Had CT done at Calvary’. The notes of the consultation on 7 May 2009 state: ‘Low back pain midline and right sided. MVA March and May 2008. Intermittent pain since then. Sat on a broken chair last week and it flared up after that’. A further clinical note of 10 June 2009 referred to ‘flare up of back pain after sitting on an uncomfortable chair at work for a prolonged period’.
The clinical notes had recorded 45 consultations by Ms Carbone relating to her back pain, neck pain and sciatica between 30 October 2007 and 9 June 2013. Only fourteen of the clinical notes referred to a link between events in the workplace and her claimed conditions.
The Wattle Street practice clinical notes record consultations on 15 April 2008 and no others until 29 June 2009. At the June 2009 visit, Ms Carbone reported ‘sciatica’ over the last 6 weeks, and that she ‘Went to hospital last week to Calvary’. There is no reference to an incident on 30 April 2009.
Matter 2014/0795
Ms Carbone complained that she was being bullied by an employee whom she was supervising and by her direct supervisors. This commenced, she said, not long after her arrival in Immigration. Increasingly she said she had felt excluded, isolated, and that she lacked support from her colleagues and peers. She also commented that had she known, prior to accepting the position, that it involved physical work she might not have taken the job.
Ms Carbone had a holiday over November/December 2012. In February/March 2013, after her return to work in January, she said, the bullying by her superiors recommenced. She claimed her treatment at work exacerbated her condition. Ms Carbone also complained about the absence of meaningful work which she believed was jeopardising her career development and affecting her self-confidence.
Matter 2013/3314
Ms Carbone claimed an aggravation of her back condition and sciatica in the period 5 March 2013 to 8 March 2013. Her claim was that the condition arose from poor ergonomic arrangements at work.
The evidence from the Sportscare and Physiotherapy notes was that on 1 March 2013 ‘A little sore after physio just in back but settled after, then a lot sore after housework’. On 6 March 2013, the notation read ‘Really sore this morning but better after physio. Had desk [reassessed] back got really sore so having the rest of [week off work]’.
Legislation
The relevant legislation is found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Relevant provisions are ss 4, 5A, 5B, 6, 7, 14, Part II Div 3. The provisions are detailed in the Consideration section of these reasons.
Consideration
Matter 2012/4686
The issues are whether Ms Carbone:
(a)has suffered a psychiatric injury secondary to her physical injuries (Act ss 4, 5A, 5B, 6, 7); and
(b)if so, is she entitled to compensation for the injury? (Act s 14).
‘Injury’ is defined in the Act, as relevant, as either a ‘disease’, a ‘mental injury other than a disease’, or an aggravation of such a condition.[1] ‘Disease’ means an ‘ailment’ or an aggravation of an ailment.[2] An ‘ailment’, as relevant, means ‘any mental … disorder, defect or morbid condition’.[3] The definitions are somewhat opaque.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 5A.
[2] Act s 5B(1).
[3] Act s 4(1) – definition of ‘ailment’.
Although the definition of an ‘ailment’ refers to a condition either ‘of sudden onset or gradual development’, in broad terms the distinction between an ‘injury’, including a mental injury simpliciter, and a ‘disease’ is that an ‘injury’ is taken to be the result of a sudden physiological change, while a disease is of progressive onset.[4] To meet the test for a mental injury to be a ‘disease’, the condition must also be ‘outside the bounds of normal mental functioning and behaviour’.[5]
[4] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286.
[5] Comcare v Mooi (1996) 69 FCR 439 at 446.
The claim, however, was that Ms Carbone’s anxiety, depressive and panic disorders arose secondary to her work-related physical injury. In other words, that employment only aggravated her pre-existing conditions, rather than caused them to develop initially. The evidence is that these conditions are long-standing, intermittent and that they fluctuate in intensity. The Tribunal, therefore, considers whether this affects its findings.
An ‘aggravation’ is defined to include ‘acceleration or recurrence’.[6] This has been interpreted to mean that the conditions have been hastened, or made worse, not simply become worse[7] and that the processes involved are due to a significant extent, to employment.
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘aggravation’.
[7] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593; Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 405.
Ms Carbone claims that her ‘compensable back/sciatica injury were the only factors that contributed to the exacerbation of my anxiety condition’. Comcare denied liability for an aggravation of Ms Carbone’s psychiatric conditions.
Ms Carbone has been diagnosed with various psychiatric conditions. There is no evidence that Ms Carbone’s mental conditions were due to a sudden physiological change. On the evidence the conditions were of gradual onset and they were, accordingly, ‘diseases’.
The medical evidence in support of this finding is as follows:
·Dr John Connors, a consultant surgeon, in a report in 1999 for NRMA on the ongoing effects of Ms Carbone’s motor vehicle accident in 1996, reported that Ms Carbone’s problems were principally related to significant anxiety and depression. In his opinion, these psychiatric illnesses outweighed the effects of any physical injuries.
·In March 2006, Ms Carbone was diagnosed by Dr Goodchild with generalised anxiety disorder and panic disorder and she was referred to a psychiatrist. She also attended the Day Therapy Program at Calvary Hospital for a period in 2006 and 2007.
·In June 2007 Ms Carbone attended a psychologist, Ms Carmel O’Sullivan, and there is evidence from Ms Carbone’s history and in the clinical notes that she made extensive use of telephone services providing support and counselling.
·In May 2007, on several occasions, she sought the counselling assistance of the Employee Assistance Program (EAP).
·Dr Klaus Akkerman, psychiatrist, reported on 20 January 2009 that Ms Carbone’s condition was a continuation of a pre-existing psychiatric condition.
·Dr Anthony Cairns, consultant orthopaedic surgeon, provided reports on 20 January 2010, and 16 June 2011, diagnosed chronic regional pain dysfunction syndrome, anxiety and depression, and ‘apparent chronic adjustment disorder’. He attributed these to her back pain which in turn was aggravated by work issues.
·Ms Judy Collett, who has been Ms Carbone’s treating psychologist since August 2009, said in a report dated 1 March 2012, that Ms Carbone’s back condition has been complicated by her anxiety and depression.
·Dr Virginia Pascall, consultant occupational physician, in a report of 9 September 2011 concerning Ms Carbone’s fitness for employment, noted that Ms Carbone had ‘significant personality related characteristics that generate her anxiety’ and these were the predominant concerns for her employability.
· Dr David Buckman, Ms Carbone’s then general practitioner, in an undated report, probably in 2012, referred to ‘severe anxiety disorder … exacerbated by … back pain’, reactive depression, and to the detrimental effect of the back pain on her career. He dated the onset of this effect to 2009. He referred Ms Carbone to Ms Collett, for her ‘anxiety/panic attacks’ in late 2011.
·Dr James Hundertmark, consultant psychiatrist, reported in August 2011 that Ms Carbone suffered from ‘an anxiety disorder not otherwise specified coded 300.00 on the DSM-IV-TR[8]. Her condition is a mixed anxiety and depressive disorder. She suffers from panic attacks. … There are also relatively prominent features of depressive symptomatology, but not sufficient to meet the diagnosis of a major depressive illness. The condition is a longstanding one and … not an adjustment disorder. [T]he current illness is an exacerbation of a longstanding mixed anxiety and depressive disorder. The condition is a lifelong one’. Dr Hundertmark considered Ms Carbone’s back pain was linked to her psychiatric conditions, and he believed her back pain would settle within a couple of months depending on workplace issues.
·Dr John Saboisky, consultant psychiatrist, provided reports on 27 February 2009, 21 October 2013, and 4 April 2014. He diagnosed a pre-existing generalised anxiety disorder with episodic panic attacks, conditions that were outside the boundaries of normal mental functioning and behaviour, due to her ‘personality system with her inherent psychological fragility and vulnerability’.
·Dr David Allen, occupational and environmental specialist, reported on 23 February 2013 that there were ‘major psychosocial factors’, including Ms Carbone’s general unhappiness, affecting Ms Carbone’s back pain. Dr Allen’s view was that the April 2009 episode may have aggravated her back condition, but only for about two months, and that it was the ‘major psychosocial factors’, including her ‘general unhappiness’ which had the most impact on her back pain and led to her psychiatric symptoms.
·Dr Michael Hong, consultant psychiatrist, reported on 9 August 2013, 16 August 2013, 13 September 2013 and 2 April 2014. He noted a family history of psychiatric symptoms, and diagnosed generalised anxiety disorder with secondary depressive symptoms, conditions that were constitutional and of early onset. Dr Hong’s view was that ‘her work was not a significant causal factor’ of her generalised anxiety disorder and that career status was only one of many factors impacting on her psychiatric conditions.
·Dr Zsadanyi, consultant psychiatrist, reported on 21 October 2013, that Ms Carbone has a chronic condition being ‘a pre-existing generalised anxiety disorder with episodic panic attacks, as well as depressive symptoms’. Dr Zsadanyi in his second, April 2014, report said ‘it is more likely that her personality style, with her inherent psychological fragility and vulnerability are the most significant factors for which Ms Carbone repeatedly feels she is the “victim” of bullying’. He concluded that the workplace was the setting rather than the cause of the manifestations of her generalised anxiety disorder. In other words he denied that work aggravated her conditions.
·Dr Sandeep Sunkaraneni, a current general practitioner of Ms Carbone, in a report of 19 February 2013, concurred with the diagnoses of generalised anxiety disorder, and her history of depression, anxiety, and panic disorders.
·Dr Ricardo Farago, consultant psychiatrist, in his report of 17 February 2013, diagnosed generalised anxiety disorder, panic attacks and major depressive episodes, but having seen her on one occasion only, did not make an assessment of the causes of her condition other than to say that ‘some form of relief’ in her workplace ‘would improve her condition’.
[8] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, revised in 2000).
There is considerable medical evidence available to the Tribunal. The Tribunal is satisfied, based on the preponderance of that evidence, and particularly of those psychiatrists who have seen Ms Carbone recently and on more than one occasion that Ms Carbone suffers from chronic psychiatric conditions, namely, a generalised anxiety disorder with episodic panic attacks, as well as depressive symptoms. The conditions meet the test of being outside the boundaries of normal mental functioning and behaviour.
Related to employment?
To be compensable, the conditions must have been contributed to, to a significant degree by her employment.[9] The factors to take into account in deciding whether the contribution by employment is to a significant degree are defined in the Act to include:
·the duration of the employment,
·the nature of and tasks involved in that employment,
·any predisposition of the employee to the conditions,
·any relevant activities not related to employment, and
·any other matters affecting the employee’s health.[10]
What is ‘to a significant degree’ is defined as ‘a degree that is substantially more than material’.[11]
Duration of employment
[9] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
[10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(2).
[11] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
Ms Carbone was first employed by Customs in 2007, and she moved to a position in Immigration on 1 May 2012. These are the two agencies which have employed her in the period under consideration. Her employment with these agencies, in combination, spans a period of some 7 years. This is a period of sufficient length, if employment is sufficiently implicated, to have made a significant contribution to her conditions.
As between the two agencies, Ms Carbone has only been employed by Immigration since 1 May 2012, that is, for less than two years prior to her departure in April 2014 for an extended overseas sojourn. In addition, during her employment with Customs, Ms Carbone was on extended leave between June and August 2010 and records show she did not work for normal office hours in many other weeks. While the Tribunal acknowledges that to an extent, absences were due to her physical or psychiatric conditions, and Ms Carbone was on a graduated return to work program for part of the period, the absences also mean that the opportunity for employment to contribute to Ms Carbone’s conditions was diminished.
Nature of and tasks involved in employment
A cause of Ms Carbone’s leaving her employment at Customs was her dissatisfaction with the nature of duties assigned to her towards the end of 2011 during her graduated return to work program. Some tasks such as collecting mail bags, delivering mail, filling printer in-trays daily, and conducting a visual check of security containers were objected to by Ms Carbone on the basis that they were not suitable and fulfilling tasks for someone at her level. Ms Carbone had also complained that the furniture in a testing lab in which she conducted one of her tasks was not ergonomically suitable. She had also complained about the suitability of her normal workstation. The latter complaint was addressed.
Ms Carbone’s contention that a number of the tasks allocated to her were unsuitable was contested by her managers, by the injury management adviser, her rehabilitation case manager, and the manager in the personnel branch. They claimed that the tasks were consistent with her position, with her lifting and bending restrictions, and tasks expected of officers in a time of budgetary constraints. She was also reminded that she had some responsibility for seeking and undertaking work consistent with her medical restrictions. One of her directors noted that ‘it was not a case of there being no work for [Ms Carbone] to perform; rather, it was the case that [Ms Carbone] often found reasons why she was unable to perform the work’.
Evidence was also provided by her managers that Ms Carbone’s regular and often extended absences inhibited reliance on her to perform important or time-sensitive tasks. In addition, the nature of the testing lab in which Ms Carbone worked for a period in Customs meant that the equipment could not be adjusted to suit Ms Carbone’s needs and she was encouraged to work, when possible, at her workstation. Eventually a position not involving work in the testing laboratory was found for Ms Carbone.
The Tribunal finds that Customs made considerable efforts to accommodate Ms Carbone’s medical restrictions and to identify suitable tasks for her to perform. Nor could Customs be criticised, on the evidence, for any failure to attempt to provide ergonomically suitable furniture at her workstation which would enable her to work within her limitations. The position she filled initially involving technical testing and required Ms Carbone to work at times in a laboratory, the equipment in which could not be adjusted. However, in time, Customs found an alternative position not involving use of the laboratory. So Customs took steps to avoid any problems of an ergonomic nature for her by organising assessments, making adjustments to her workstation, and relocating her to different work so she no longer needed to use the laboratory.
Although the Tribunal accepts that Ms Carbone was disappointed about the nature of some tasks assigned for her, and that her disappointment may have contributed to her feelings of loss of self-worth and have contributed to her anxiety and depression, there is no evidence before the Tribunal that the tasks assigned to her were not suitable for her position, given her medical restrictions.
The Tribunal takes official notice of the fact that currently within the Australian public sector the reduction in the number of positions means that remaining officers are required to take on more menial tasks. In addition, the Tribunal notes some failure on Ms Carbone’s part to be more proactive in finding and performing suitable tasks and that her extended and frequent absences had to be taken into account by her managers in allocating tasks to her which needed to be completed quickly. So on balance, the Tribunal does not consider that the nature of tasks to which she was assigned in Customs made a significant contribution to Ms Carbone’s psychiatric condition.
Ms Carbone complained also about the absence of suitable work after she started at Immigration. She experienced problems with someone she was supervising, hostility from others within the workplace, and ultimately Ms Carbone was separated from her team. That made interactions with other employees difficult and contributed to Ms Carbone feeling socially isolated, and limited her effectiveness in the workplace. The pattern of circumstances of these kinds involving Ms Carbone in her public and private sector workplaces indicates to the Tribunal that an element of these problems arises from Ms Carbone’s own personality. This feature of the history presented does not lead to the Tribunal being satisfied that it is her employment alone or even principally which results in the level of distress experienced by Ms Carbone.
Predisposition to claimed conditions
There is evidence, which the Tribunal accepts, that Ms Carbone has a family history of psychiatric conditions and that she has intermittently suffered from anxiety and depression since at least early adulthood. The Tribunal accepts the evidence on this issue of Doctors Oates, Buckman, Akkerman, Hundertmark, Saboisky, Hong and Zsadanyi, a list which includes all, except Dr Farago, of the psychiatrists who have assessed her.
Their findings are that Ms Carbone has had a history of anxiety and depression which predated the events of April 2009. Dr Hong, with whose opinion Dr Sukareni, and Dr Zsadanyi agreed, also considered that Ms Carbone’s condition was constitutional. Dr Hundertmark said that Ms Carbone’s long-standing anxiety and depression were ‘due to family issues’. The Tribunal accepts these opinions. Ms Carbone had a predisposition to developing anxiety and depression. That means the only issue for the Tribunal is whether the condition was aggravated to the requisite degree by Ms Carbone’s employment, an issue which will be dealt with separately.
Relevant activities not related to employment
The predominant view of the medical experts is that the pain Ms Carbone experiences from her accepted back and neck conditions significantly affect her psychiatric conditions. The issue is the extent to which that pain continued and whether the recurrence of her pain is significantly due to her workplace.
Dr Pascall’s report of 9 September 2011 had noted that ‘It is possible that the sacroiliac joint was significantly worsened by the slip and fall in the Canberra Centre later that year’ [October 2008]. Dr Pascall also said that the CT scan of 19 December 2008 did not indicate any radiculopathy, and Dr Cairns’s report had confirmed this. There was also medical evidence denying that Ms Carbone was suffering from sciatica. Dr Pascall’s opinion in September 2011 was that Ms Carbone could work 4 hours a day, 5 days a week at that time, gradually increasing to full-time work. Dr Broderick also certified in August 2011 that she was fit to undertake the RTWP. This evidence indicates that by August/September 2011 Ms Carbone’s back conditions had recovered sufficiently for her to return to work, and that after October 2008, any exacerbation of her condition was at least significantly worsened by the slip and fall incident, rather than anything that occurred in her workplace.
The evidence more broadly indicates that there have been a significant number of activities in which Ms Carbone has engaged and incidents which have affected her back and neck which are not related to her employment, and that some of the bullying she claims to have experienced arose in her employment outside the public sector. In addition, she has constitutional, familial and personal issues which have impacted on her psychiatric health.
The Tribunal notes in particularly the two motor vehicle accidents in March 2008 and May 2008 for which she was compensated under the motor vehicle insurance scheme and which were also said to have resulted in anxiety and depression, the a ‘slip and fall accident’ in a shopping centre in October 2008 which aggravated her pre-existing back injury, affected her shoulder, gave her whiplash, and was said to have led to her anxiety and depression. In September 2011, Ms Carbone was also involved in another rear end motor vehicle collision leading to neck pain, jaw pain and low back pain, as well as her secondary psychiatric issues. Imaging following these accidents showed deterioration in her spine, and it can be inferred that these incidents would have contributed to her back and neck pain. From June 2010, Ms Carbone was absent from work for nearly two months. During that time she went on a bus trip in Europe and the lengthy periods of sitting also aggravated her back pain. All these non-work-related sources of increased pain are also said to have contributed to her anxiety and depression.
Other matters affecting the employee’s health
Medical records illustrate the complex range of factors involved in Ms Carbone’s psychiatric state. The Calvary Hospital’s records of her attendances in 2006-2007 recorded a ‘long history of anxiety symptoms’ and a ‘history of a difficult childhood with critical parents, cultural conflicts and feelings of abandonment and rejection particularly since she had moved out of the family home’. The reports noted that ‘Ms Carbone … presented with interpersonal difficulties in the family and social and work settings’.
In his report Dr Hong, who provided three reports relating to Ms Carbone over a period of some eight months, noted that the triggers for her psychiatric conditions were:
… work, her family, unresolved feelings arising from her developmental home environment, ongoing life stage issues relating to loneliness, marital status (which is at odds with her parents’ wish and is a trigger for anxiety as she wants to meet the right person), and lack of life direction.
On two of the three occasions on which Ms Carbone contacted the Employee Assistance Program in May 2007, the issues were solely to do with family matters.
Ms Judy Collett, her treating psychologist, provided evidence that within her family, Ms Carbone felt ‘blamed for everything as a child’, that she was the scapegoat, and her mother had been critical of her. She also faced pressure from the family to marry from at least her late teens. Ms Collett recorded Ms Carbone as listing other pressures as the death of a close relative in 2009, abuse in her employment from her manager in a private sector firm, the move to Immigration, her March and May motor vehicle accidents, and problems at work where she had suffered abuse.
In 2010, her distress was recorded as being due to an interpersonal problem, a falling out with friends, her fall in the shopping centre in October 2010, and her relationship with her public sector supervisor. In a report to Comcare Ms Collett listed the absence at work with her government employer of ergonomically suitable furniture, inconsistent workload, with either inappropriate or no work, absence of training for other tasks, being excluded from work activities of an official or a social nature, and colleagues who were hostile to her.
This evidence includes non-employment-related factors. Where employment is implicated, the Tribunal has rejected the evidence that Ms Carbone was not provided with ergonomically appropriate furniture or alternative appropriate tasks, and notes that some of the factors listed appear to be due to problems due to Ms Carbone’s own preferences, such as undertaking tasks she asserted were suitable, and to interpersonal problems over which her employer had no control. The Tribunal only had Ms Carbone’s assertions that she was not offered appropriate training.
Dr Anthony Cairns, in a fitness for duty report, in June 2011 said the factors affecting her back condition were: psychosocial factors in the work setting, anxiety and depressive disorder, constitutional problems with her lumbar spine, lumbar intervertebral disc disease, and other health issues. He also noted there was significant ‘psychosocial potentiation’ in Ms Carbone’s presentation.
In summary while there is an intersection between Ms Carbone’s psychiatric conditions, and her physical injuries, the Tribunal notes that the reports from those who have treated her or have assessed her on more than one occasion indicate the multifactorial pressures which affected her. The predominant causes of her physical injuries are accidents and incidents outside her employment and it is not possible for the Tribunal to be satisfied that her employment-caused physical back pain has been the sole or even principal cause of her psychiatric illnesses. Her bus trip, her motor vehicle accidents, her slip and fall accident are likely to have been the predominant cause of the continuing pain from these accidents. Moreover there is medical evidence of the intermittent or probable short-term nature of the effects of her back condition.
The causes of her psychiatric illnesses on the evidence are also due to multiple factors. Aside from the pain in her back and neck, her familial pressures, the bullying she claimed to have experienced from both private sector and public sector employers, her pre-disposition to develop anxiety, depression and panic disorders, her loneliness, marital status and concern about her lack of a direction in life, contributed also to the development of her anxiety and depression. Given this picture, the Tribunal cannot be satisfied that Ms Carbone’s employment aggravated her psychiatric illnesses to a significant degree. That means, Comcare is not liable under section 14 of the Act for the aggravation of her psychiatric conditions.
Matter 2013/3314
The issues in this matter are:
·Whether, between 5 March 2013 and 8 March 2013, Ms Carbone suffered an ‘aggravation of lumbar sprain and sciatica’ due to employment;
·If so, whether Ms Carbone was suffering an incapacity which was total or partial; and
·Whether Ms Carbone is entitled to weekly payments of compensation for any such incapacity (Act Part II, Div 3).
Ms Carbone claimed that she had suffered an aggravation of lumbar sprain and sciatica due to her employment between 5 March 2013 and 8 March 2013. Comcare had rejected the claim on the basis that the clinical notes to her general practice she attends had made no mention of back pain during the relevant period. Ms Carbone had consulted the practice at that time.
The Tribunal has examined the clinical notes. The predominant emphasis in the notes of Ms Carbone’s consultations on the 5th, 6th and 8th March 2013 is on her stress in the workplace. These were said to be due to her interactions with her supervisor and her rehabilitation advisor. The doctor’s focus was on giving Ms Carbone tools to enable her better to manage these interactions. There is one reference (on 6th March) to ‘issues with ongoing stress related to work and physical complaints’. So there is a reference to physical complaints, but that is the only reference, it is non-specific, and no treatment for any physical complaint was noted, suggesting it was not a serious concern.
In addition, Dr Buckman, her then treating general practitioner, had written to Comcare on 2 March 2013 advocating continued support for a gym program for Ms Carbone’s back condition. He referred to Ms Carbone’s capabilities and said her improved outcomes were a tribute to her treatment programs and her current management of her condition. There is no suggestion of her having an aggravation of her condition in that letter. As her treating practitioner he would be aware of the state of her back condition at that time. A CT scan was taken of Ms Carbone’s spine on 12 April 2013, but this post-dated the relevant period. The CT scan results indicated multi-level annular bulging and disc protrusion with nerve root impingement, but the results mirror those obtained in earlier imaging.
A fitness for duty report of Dr Allen, dated 20 May 2013, recorded Ms Carbone as saying ‘her pain is overall about 20% better’. As evidence of this she had mentioned she ‘had been on a bus tour in November 2012 which consumed about eleven days of her seven week holiday and she was able to manage sitting in a bus for several hours at a time without substantial aggravation of her pain’. She had also recorded that her neck condition ‘was now improved’. Overall she said her neck is ‘much better than it had been’.
Dr Allen concluded she had degenerative changes particularly in the L4/5 disc but this was commonly encountered without symptomatology. She did not have radiculopathy. He noted that although this was not his area of expertise, in his opinion, ‘the psychosocial factors … far outweigh any physical contribution to her incapacity’. He also noted some inconsistencies on physical examination which he had encountered with her previously. He concluded that ‘her complaint of incapacity and inability to attend work is work avoidance rather than true incapacity’. He said she had not suffered from sciatica and ‘that aggravation has long since ceased’, and that ‘her problem is not physical but psychological and her incapacity is a choice she makes rather than based on her physical condition’.
Finally, the Tribunal notes Ms Carbone’s references to her attendance at that time by her physiotherapist and the notes which, on 1 March 2013, attribute her sore back condition to housework, while there is a suggestion at the visit on 6 March 2013, that a reassessment of her workstation had occurred, but she had taken a week off work. The notes are equivocal: the first reference suggests a non-work related cause of her back problem, while the second infers problems with her desk at work.
On balance, the Tribunal has insufficient evidence from the clinical notes and from the evidence of health and allied medical specialists, that Ms Carbone’s back condition was aggravated by her employment at that time. The Tribunal affirms the decision to reject this claim.
Matter 2013/4023
The issues in this matter are:
·Whether Ms Carbone was able to undertake the return to work program scheduled to commenced in September 2011; and
·If so, whether the program was appropriate. (Act s 37(3)).
Ms Carbone claimed that the:
GRTW program went against recommendations from my GP, only exacerbated my situation with (a minimal work given and type of work (filing) only exacerbating my condition b) mismanagement of claim c) not allowing me to recover quickly by prolonging my GRTW program d) exacerbating my anxiety condition. I was continuously provided with ‘lists of work’ that were not doable, and left me without work for 95% of my working hours.
The Act provides:
Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation provided for the employee … the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act … are suspended until the employee begins to undertake the program.[12]
[12] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37(7).
A RTWP is only lawful provided it is established in accordance with the procedures in the Act.[13] No issue has been raised concerning the correctness of the procedures adopted in this matter. Ms Carbone was assessed appropriately as requiring a RTWP; she was advised in August 2011 of the consequences of her continuing failure to sign the RTWP, and of the need for her to comply with the provisions of the program.
[13] Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 36, 37.
The Act provides that an employee may object to a RTWP if the person has a reasonable excuse for doing so. Ms Carbone objected to the RTWP, which she failed to sign, on the grounds, broadly, that the program was inappropriate, or that it was not administered appropriately.
As to the reasonableness of the RTWP, the evidence was that Dr Thew in February 2011, and Dr Broderick in August 2011, certified her as fit to comply with the proposed program. So her treating general practitioners considered the RTWP was appropriate to her needs. In addition, the program was fine-tuned in considerable detail by an experienced occupational physician, Dr Virginia Pascall, who also certified the program as appropriate to her needs.
The Tribunal notes the willingness of Customs to amend the RTWP to take account of Ms Carbone’s concerns. This was done on at least three occasions. New duties were found to supplement those originally prescribed. Ms Carbone was a CL2 officer within Customs, equivalent, according to Customs to an Australian Public Service (APS) officer at around the 3/4 level, although the Tribunal notes Ms Carbone claimed it was at the 4/5 level. In any event, she occupied a mid-level position in the APS third division, with several positions above her within that Division. That means that under the relevant certified agreement, and in accordance with the terms of her individual arrangements, Ms Carbone was expected to perform a significant amount of routine administrative tasks. The Tribunal takes official notice of the fact that the volume of such tasks generally within the public sector has increased for individual APS officers at all levels as public sector staffing is reduced in line with continuing efficiency demands by government.
Ms Carbone’s work station was adjusted following an assessment. Her complaints concerning the unergonomic nature of the furniture in the testing laboratory when she was involved in the SmartGate project could not be altered, but Ms Carbone was reminded to limit the time she spent doing that work and to monitor her conditions for discomfort to avoid any aggravation of her conditions. In other words, Customs took reasonable steps to meet the needs of Ms Carbone due to her accepted condition and the Tribunal finds on the medical and other evidence that the RTWP was appropriate for Ms Carbone’s needs and was reasonable. In addition, all the staff involved in the management of Ms Carbone’s work, return to work program, or personnel matters, gave evidence which the Tribunal accepts, that the tasks allocated to Ms Carbone were suitable for her position, given her medical restrictions.
As for Ms Carbone’s complaints that the RTWP was not administered in a reasonable manner, the Tribunal finds that Ms Carbone had to take some responsibility for the administration of the program. The Tribunal accepts the evidence that Ms Carbone’s regular absences meant that her supervisors could not rely on her to complete time sensitive tasks. An inevitable consequence of this restriction was that she could not be asked to undertake some tasks which Ms Carbone may have considered more interesting. Ms Carbone was also reminded that she needed to take responsibility for informing her colleagues if she had no work to do, and there is some evidence that she did do so on occasions, but the evidence indicates she could have been more proactive in this regard.
There is also evidence that at least until the end of July 2011, Ms Carbone was taking time off during her working hours to attend Comcare supported medical appointments, rather than attending those appointments in her non-work hours. Dr Pascall denied the necessity for her to interrupt her work time for this purpose and this was confirmed by her case manager and other colleagues involved in the meeting of 21 July 2011. Her unavailability during work hours made it hard to identify work for her which fitted into a schedule of work involving others in the team. As Dr Sunkaraneni noted in his consultation with Ms Carbone on 16 March 2013, ‘She has no insight into the situation’ and complains ‘that her work colleagues are picking on her’ but ‘There is no recognition that her colleagues are reacting to the fact that the work is not getting done’.
At the same time, Ms Carbone’s personality differences with staff meant she could not work within a team and hence was denied the opportunity to learn from and to contribute to tasks completed with team effort. The consequence led to her being separated physically from others in her section and contributed to her sense of isolation, a matter of which she also complained. The deterioration of Ms Carbone’s relationships with other staff was a recurring difficulty in her workplaces, was long-standing, and could not be surmounted by her case managers. Dr Pascall noted that Ms Carbone’s personality problems made her unemployable, a finding, disputed by Ms Carbone, but the opinion is suggested on the evidence, and indicates one of the many difficulties for her employer in finding her suitable work.
In these circumstances, the Tribunal is not able to be satisfied of Ms Carbone’s contention that she did not comply with the program because the work available for her to do under the RTWP was not, in practice, suitable for her level of competence or was not reasonable.
Matter 2013/4776
The issues in this matter are:
·Whether, as at 14 August 2013, Ms Carbone continues to suffer the effects of the ‘aggravation of lumbar sprain and sciatic’, the injury sustained on 30 April 2009;
·If so, is Ms Carbone incapacitated for work, suffering an impairment, or requires medical treatment in relation to the effects of the injury; and
·If so, whether Ms Carbone, as at 15 August 2013, is entitled to compensation in the form of reasonable medical treatment, or for incapacity for work for the injury (Act ss 16, 19, Part II Div 3)).
Ms Carbone had claimed an aggravation of her lower back condition and sciatica on 14 April 2009. Liability for the condition was accepted on 21 August 2009. However, a decision was made on 15 August 2013 that as at 14 August 2013, she had no present entitlement to compensation under sections 16 and 19 of the Act in relation to the effects of that condition, a decision upheld on review on 9 September 2013. Ms Carbone had referred in particular to an event in February 2013 which had exacerbated her condition and from which she said she had not recovered.
The Tribunal refers to its earlier discussion of the legal tests if an ‘aggravation’ of an accepted condition is to be compensable under the Act. In particular the Tribunal notes the requirement that for a ‘disease’, the definition of which covers Ms Carbone’s back and neck conditions, compensation is only payable if employment has contributed to the effects of the disease to a ‘significant degree’, that is, to a degree that ‘is substantially more than material’.[14] The issue for the Tribunal is whether Ms Carbone continues to suffer an aggravation of her accepted condition to a significant degree such that the aggravation results in incapacity for work, or impairment.[15]
[14] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
[15] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14.
The clinical notes from the Ginninderra Medical practice in February 2013, in summary, are as follows:
·1 February 2013: returned to work on 9th January and has been getting a sore back, she thinks because her workstation and duties have changed, and she wants a workstation assessment by an occupational health provider.
·6 February 2013; went back to work today, was lifting her own stuff like desk top and files and also had to sit on the chair for a long time which aggravated her symptoms of lower back pain, had to come back from work today, … having some issues with work, says affecting her back, has anxiety issues.
·10 February 2013: upper back and neck pain and has been taking Voltaren and Panadeine. She is back at work as of tomorrow. She is very negative today and predicts that she will get lost of pain, anxiety and that her heart will play up. She is working at a station where she has a lot of people walking past, and has people behind her while she works which she finds uncomfortable. She calls the Salvation Army Care Line and Lifeline every day for support.
·14 February 2013: wants me to fill in a form for Comcare – says she has had flare up since going back to work a few weeks ago … upper back and neck pain that she says she is booking into Sports Physio, O’Conner and would lie to rest from work for rest of week. I think light duties and graded time back to work as suitable for her would be best from Monday.
·19 February 2013: has had issues with ongoing back pain; … has a structured plan for improvement, will see physio soon … once Comcare approves. Has returned to work recently after 2 days off last week due to the back pain flaring up … and felt very low at work … says that work place colleagues and superiors have tried to say that her performance is substandard – she says that she never was notified of this prior to her injury, and feels like she is being treated aggressively and unfairly at work. … has been suffering an acute stress reaction for the last few days – more tearful …, difficulty sleeping, palpitations, shortness of breath. This in on the background of ongoing anxiety disorder and she relates reactive depression also in the past … we discussed options – referred psychologist, discussed about antidepressant meds - .. not keen on taking. MSE : mildly flat affect; speech normal; sleep disturbed; no psychotic symptoms, no self- harm ideation plan currently referred for psychologist as part of MHP [mental health plan] … given the current frequency of panic attacks and symptoms – she is keen for med cert for rest of week. MH [mental health] assessment; GP Mental Health Plan.
·20 February 2013: Has history of difficulties at work. Does not like her job at all, but has been there for 25 years. Parents are not accepting of her situation at all. When I asked what she wanted from me, she eventually decided it was what she needed to do to achieve one of her goals. We sorted out a few of her values too which I intend to use next time. To help her to make a viable plan for her life but I think she is attached to a lot of thoughts that need defusing, like ‘I can’t do it’.
·23 February 2013; there is pain in the whole of her back, neck and both legs. She thinks there must be ‘something wrong with her set up’ at work and her physiotherapist reinforced this notion.
·25 February 2013: rehab assessment/examination.
·27 February 2013: Teresa said that that she really wanted was to teach English in another country because she feels she is not fulfilling her values at work. We talked a lot about her workplace and how she thinks she is being bullied. Session 2 Plan. To come back with the types of situations she is finding difficulty with at work.
Ms Carbone had some 27 consultations with her general practitioner between 5 March 2013 and 2 August 2013. In only a handful of these was there a reference to her chronic back pain and only two references, one to doing lots of typing, and another to her desk arrangement which were implicated in her workplace. In June there was also a reference to her back having been affected because she had been moving house. The predominant focus of the many consultations was her unhappiness in her workplace and her anxiety, panic attacks, and depression.
The medical evidence from others about her general issues with her back and neck is as follows:
·Dr Chris Oates, occupational physician, reported on 9 February 2009 that he considered Ms Carbone’s pre-existing cervical spine, lumbar spine, jaw and anxiety conditions may have been exacerbated in the motor vehicle accident of 15 March 2008 but had resolved within six weeks. He considered she was then fit for full-time work.
·Dr David Allen, occupational and environmental specialist, reported on 23 February 2012, that the April 2009 ‘may have aggravated’ her underlying mechanical back pain due to the motor vehicle accidents in March and May 2008, but the aggravation would have resolved in about two months. He denied she suffered from sciatica and said that her problems were psychological not physical, and that ‘her incapacity is a choice she makes rather than based on her physical condition’, and her incapacity for work was ‘work avoidance rather than true incapacity’.
·Dr Graeme Griffith, consultant surgeon, in a report of 26 June 2009, said her nervous shock, soft tissue injury, sprains of the neck and back, and contusions had resolved at the time of his report. However, he said the first accident left her with ‘myalgia, cervical and cervicodorsal region ongoing’ and ‘myalgia lumbar region – minimal’. The second accident left her with ‘persistent cervical and cervicodorsal myalgia with focal ‘trigger points’. The April 2009 accident left her with ‘acute exacerbation of lower lumbar pain with severe probably L5 sciatica’; and ‘probable major disc protrusion of L4/5 (unproven)’. He had recommended an MRI to test this last hypothesis, but this was not undertaken.
·Dr Anthony Cairns, orthopaedic surgeon, in a report of 20 January 2010, considered that by the end of 2008 she had recovered from the effects of the two motor vehicle accidents. However, following the April 2009 incident he diagnosed Ms Carbone with ‘discogenic lumbosacral pain with demonstrated L3/4 and L4/5 lumbar intervertebral disc protrusion and right sciatic nerve root irritation’. In a second report of 16 June 2011, Dr Cairns, listed as factors affecting her condition: ‘psychosocial factors in the work environment; anxiety and depressive disorder, constitutional problems with her lumbar spine; lumbar intervertebral disc disease; and other health issues’.
·Dr Justin Pik, neurosurgeon, in his report of 1 December 2010, found that Ms Carbone’s ‘severe radiculopathy [due to her back pain] has resolved’ and that she was left with ‘discogenic low back pain from the degenerative disc disease in her lumbar spine’. That is, the effects of events affecting her back in 2008 and April 2009 had ceased and the remaining discomfort in her back was due to an inherent degenerative back disease, not to the accidents.
·Dr John Saboisky, in a report of 27 February 2009, expressed the view that Ms Carbone’s psychiatric conditions were exacerbated by the motor vehicle accidents in 2008, and the perceived criticism and alleged harassment and bullying of her superiors at work. He did not attempt to allocate proportional effect to these two factors. In any event, he said the effects when Ms Carbone moved to a new area of Customs in which she said she felt supported. This discounts any contribution from her work environment.
·Dr Sandeep Sunkaraneni, one of Ms Carbone’s general practitioners, who has treated her since February 2013, acknowledged in his report of 25 October 2013 in relation to her psychiatric condition, that both employment and non-employment factors had contributed to her psychiatric conditions. He made no attribution of the proportional effect of the workplace, nor did he focus on her physical condition and the impact of employment on that condition.
·Dr Virginia Pascall examined Ms Carbone for fitness for duty purposes. In her report of 9 September 2011, she said the events of April 2009 may have aggravated her underlying lumbar spine condition, but noted too that the slip and fall in the Canberra Centre may also have ‘significantly worsened’ the injury to her sacroiliac joint. In her supplementary report of 18 March 2012, after the motor vehicle accident of 17 September 2011, Dr Pascall said her back condition was ‘partially attributable to the motor vehicle accident of September 2011’ but also noted ‘significant personality related issues’ were affecting Ms Carbone. She noted that there was clearly overlap between her motor vehicle accident and her work-related claim as the further injuries claimed ‘relate to the same areas as she is claiming prior workers compensation’. However, in her view, ‘The lack of mention of the accident and the lack of mention of the neck pain, belies any consideration that the injuries from the motor vehicle accident had much significant, if any, by November [2011]’. She concluded:
o0% of Ms Carbone’s restrictions and treatment needs for her lower back relate to the motor vehicle accident at this time, and the same can be said for her anxiety related problems.
oThere may have been a short-lived aggravation of both of these in September and October, but by the end of November, that no longer is justifiable, according to the general practitioner notes.
oHer cervical spine pain and radiation of that pain to her shoulders does relate to the motor vehicle accident but also has a relationship to underlying degenerative changes in the cervical spine and to the consequences of earlier accidents, as well as the work-related issues, including anxiety, causing increased tension within the trapezius muscles.
·Her report also noted that ‘There is reasonable indication on physical examination that the spinal tenderness is caused by the degenerative changes and the muscular tenderness by the psychological, postural and consequent overloading that is inherent in her work related issues’.
·Dr Thew and Dr Broderick certified that Ms Carbone was able to return to work on the RTWP by February 2013 and August 2013 respectively.
This evidence indicates that by the end of 2008 or early 2009, the effects of the motor vehicle injuries had disappeared. Ms Carbone then suffered an exacerbation of her back condition in April 2009. The Tribunal concludes that by 13 August 2011, the medical evidence of Dr Allen, Dr Pik, Dr Cairns, Dr Thew, Dr Broderick, and Dr Pascall have all expressed the view either that Ms Carbone no longer suffered from any effects from her accepted injury, or that the aggravation of her condition was not significantly contributed to by her employment. Only Dr Griffith, who last saw her in June 2009, found to the contrary. Dr Cairns in his later report accepted that her workplace was only one of five different causes of her back problems at that time, indicating he would not have found that her employment contributed to the aggravation of her back condition to a significant extent.
These findings are supported by the contemporaneous notes from the principal general medical practice which Ms Carbone attends. In the eighteen months prior to 14 August 2011 the notes indicated that only about one-third of Ms Carbone’s visits to the practice refer to her back pain. The Tribunal’s findings on Matter 2013/4023 that Ms Carbone’s conditions had recovered sufficiently for her to be in full-time employment by January 2012 also do not support her back conditions continuing to cause her impairment as at that time.
In the months between February and August 2013, her back pain was described variously as being due to moving house, a possible problem with her workstation, and on one occasion, extensive typing. In addition there were other non-work-related factors such as the slip and fall in the Canberra Centre, which had adversely affected her back and her anxiety state and depression. However, predominantly, the clinical notes relating to Ms Carbone indicate that her back pain described as chronic, appeared to be a product of her general unhappiness with her workplace and her interactions with other staff.
The Tribunal notes also that although there is an interrelationship between her anxiety condition and her back problems, her psychiatric conditions have been found on the medical evidence not to be contributed to, to a significant degree, by Ms Carbone’s employment. So that factor can be discounted as having a significant work-related causal impact on Ms Carbone’s back condition.
In summary, the Tribunal is not satisfied that Ms Carbone suffered incapacity for work or impairment from her accepted injury as at 14 August, significantly contributed to by her employment, so that Comcare should continue incapacity payments under section 19 of the Act or medical treatment under section 16 of the Act. Accordingly, the Tribunal affirms the cease-effects decision and concludes that Ms Carbone’s claims for incapacity payments and for medical treatment are not compensable from 15 August 2013.
Matter 2014/0795
The issues are:
·Whether Ms Carbone sustained a psychological injury in 2012 and 2013 (Act ss 4, 5, 5A, 5B, 6 and 7); and
·If so, is Ms Carbone entitled to compensation for the injury (Act s 14).
Ms Carbone claimed an exacerbation of her anxiety and depression which she said arose from bullying she experienced at work on 6 May 2012 and in February 2013. These occasions occurred while she was working in Immigration. The first such occasion was only five days after she commenced in that agency.
Ms Carbone started in her new job on 1 May 2012. There is no complaint to her general practice about work issues until July 2012. In particular there is no mention of problems on 6 May 2012, and on 21 May 2012, the record was ‘She is going reasonably well in her new job’. Thereafter until March 2013, less than one-third of her consultations refer to work issues. The tenor of the entries which do indicate problems are to do with her interaction with others in the workplace.
The evidence on this issue from psychiatrists and Ms Carbone’s general practitioner is as follows:
·9 August 2013: Dr Hong made a provisional diagnosis of generalised anxiety disorder, with secondary depressive symptoms aggravated during her employment in both Customs and Immigration, the most recent episodes being in February to March 2013. He commented that Ms Carbone claimed to have been harassed and bullied ‘but this may not be the objective reality’. Nonetheless, he recommended she be relocated in Immigration.
·2 April 2014: Dr Hong in this fourth report identified the triggers for her psychological symptoms as:
Work, her family, unresolved feeling arising from her developmental home environment, ongoing life stage issues relating to loneliness, marital status (which is at odds with her parent’s wish and is a trigger for anxiety as she wants to meet the right person), and lack of life direction. He concluded that her own sensitivities meant ‘she was prone to misinterpret other people’s actions’ and he expressed the opinion that ‘her work was not a significant causal factor’. As his report concluded: ‘it is likely that [she] would have developed significant psychiatric problems across her entire life irrespective of her employment on the basis of her early upbringing, ongoing issues with her family of origin, as well as a number of life stage anxieties (relating to her career status, marital status and financial status at the particular point in her life).
·21 October 2013: Dr Zsadanyi said that her depressive symptoms were ‘secondary to the workplace allegations’. He continued ‘In her case her symptoms seem to relapse in the context of psychosocial stressors and the workplace allegations would probably have contributed to an exacerbation of her symptoms of anxiety’. In his opinion her condition which first occurred on 6 May 2012 was ‘outside the boundaries of normal mental functioning and behaviour’, but declined to attribute a level of contribution for each of the individual factors that Ms Carbone highlighted in her statements as causal.
·4 April 2012: In a supplementary statement, Dr Zsadanyi confirmed that Ms Carbone had experienced an aggravation of her generalised anxiety disorder, but he said that Ms Carbone’s ‘personality style with her inherent psychological fragility and vulnerability are the most significant factors for why Ms Carbone repeatedly feels she is the “victim” of bullying’. He concluded that ‘it now seems more probable that Ms Carbone could have developed her condition as a natural progression of her pre-existing condition … irrespective of the alleged employment factors’ and that the workplace was the setting for her aggravation to have manifested itself and ‘more likely was the factor that contributed to the reported interpersonal difficulties in the workplace’.
·25 October 2013: Dr Sunkareni’s report notes that the factors contributing to her condition are likely both employment and non-employment related, but declined to indicate the proportion of the impact. He went on: ‘a significant portion of her concerns have revolved around interaction with colleagues at her workplace and the perception that she has been talked about and has used the words “bullying” and “harassment”. Other possible contributory factors are likely to be physical factors eg back and neck pain which are likely to have contributed to a negative feedback loop in her cycle of anxiety/depression’.
Ms Carbone has obviously experienced considerable distress in her workplace. However, the extent to which this distress can be attributed, to a significant degree, to her employment, is not apparent on the evidence. The clinical notes do not even refer to workplace issues for 6 May 2012, and there is more focus in those subsequent entries on communication style with others at work, than on particular events causing that distress.
The medical evidence from those doctors or specialists who have seen Ms Carbone during the 2012-2013 period also do not attribute her diagnosed psychiatric conditions to her workplace to a significant degree. Instead they identify a range of matters, most being outside of her employment, which have contributed to her recurring distress.
The pattern to Ms Carbone’s recurring conditions, and the medical evidence, indicate that it is Ms Carbone’s inherent personality sensitivities which impact on her interactions with others, factors that cannot be attributed to her employment to the requisite degree. Accordingly the Tribunal is unable to be satisfied that it was Ms Carbone’s employment at Immigration which was causal of her recurrence of her conditions to a significant degree. That means the decision under review is affirmed.
Conclusion
In conclusion the Tribunal has found that the decisions in all five matters before the Tribunal are upheld.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. ...........................[sgd].........................
Associate
16 June 2014
Date(s) of hearing 10, 11, 14 & 15 April 2014 Applicant In person Counsel for the Respondent Ben Dube Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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