Vicki Brown and Australian Postal Corporation
[2014] AATA 261
[2014] AATA 261
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5568
2013/4405
Re
Vicki Brown
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 2 May 2014 Place Brisbane Application [2012/5568]
The Tribunal affirms the decision under review in so far as it relates to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
The Tribunal sets aside the decision under review in so far as it relates to s 19 of the Act; substitutes its decision that the respondent is liable to pay compensation to the applicant under s 19 of the Act for major depressive disorder; and remits the matter to the respondent.
Application [2013/4405]
The Tribunal sets aside the decision under review in so far as it relates to s 14 of the Act; substitutes its decision that the respondent is liable, under s 14 of the Act, to pay compensation to the applicant in accordance with the Act; and remits the matter to the respondent.
Applications [2012/5568] and [2013/4405]
In accordance with s 67 of the Act, the respondent is to pay the other party’s costs of and incidental to these proceedings, to be taxed by the Registrar in the absence of an agreement.
......................Sgd..............................................
Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS' COMPENSATION - Australia Post employee - Liability initially accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “soft tissue injury right knee” – Reviewable decision that respondent has no present liability under s 16 of the Act for that injury affirmed - Reviewable decision that respondent has no present liability under s 19 of the Act for psychiatric effects of that injury set aside – Matter to be remitted to the respondent - Costs
WORKERS' COMPENSATION - Australia Post employee – Reviewable decision that liability denied under s 14 of the Act for “depression secondary to right knee injury” - Decision under review set aside – Respondent liable under s 14 of the Act to pay compensation in accordance with the Act for major depressive disorder – Matter to be remitted to the respondent - Costs
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B 14, 16, 19, 67
CASES
Chillemi and Telstra Corporation Limited [1998] AATA 106
Clement v Comcare [2012] FCA 166
Comcare v Nicholls [1999] FCA 209
Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224
Havnen and Comcare [2010] AATA 535
Hey and Comcare [2013] AATA 131
Kavas and Comcare [2011] AATA 935
Lang v Comcare [2007] FCA 17
Lutteral and Military Rehabilitation and Compensation Commission (2012) AATA 692
Manns and Comcare [2012] AATA 462
Pratt and Comcare [2004] AATA 1281
Sullivan and Military Rehabilitation and Compensation Commission [2014] AATA 259.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
2 May 2014
BACKGROUND
Vicki Brown (“the applicant”) was employed by the Australian Postal Corporation (“the respondent”) from 1997 until 2012. On 23 June 2011, she completed a claim for rehabilitation and compensation in respect of “R[ight] knee injury”. She alleged that this occurred as a result of lifting a mail item in her employment at the respondent’s Toowong Business Centre on 20 June 2011. On 30 June 2011, the respondent accepted liability under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “soft tissue injury right knee”. On 6 June 2012, the respondent determined that it no longer had a present liability to pay compensation to the applicant under
ss 16 or 19 of the Act. That determination was affirmed in a reviewable decision on
8 November 2012. The applicant seeks review of that determination.[1]
[1] Application no. 2012/5568.
On 26 March 2013, the applicant completed a further claim form in relation to depression which she claimed “came on secondary to my compensable knee disabilities”.
On 9 August 2013, the respondent rejected her claim and that determination was affirmed in a reviewable decision on 26 August 2013. The applicant seeks review of that determination.[2]
[2] Application no. 2013/4405.
EVIDENCE
The applicant
The applicant’s evidence was that she commenced working for the respondent in 1997 at Hervey Bay and then at Coorparoo, Sumner Park, Toowong and Archerfield.
She was involved in customer service as well as sorting and stacking retail items.
On 20 June 2011, she bent down to lift a parcel weighing about 10 kilograms and, in so doing, twisted her right knee and felt immediate pain. She advised her manager of what had happened and then attended the respondent’s nominated medical officer at the Jindalee Medical Centre (“Jindalee”). She reported to her manager and then went home. She again attended Jindalee where an ultra sound procedure on her right knee was undertaken. She was referred to orthopaedic surgeon Dr Mark Richardson who arranged for an MRI to be undertaken on 29 June 2011. Dr Richardson completed a Workers’ Compensation Medical Certificate on 30 June 2011 advising that the applicant was fit for suitable duties until 21 July 2011. The applicant returned to work with restrictions on her hours, on lifting and on standing. However, for the remainder of 2011, she continued to experience aching pain in the inside aspect of her right knee and sharp pain when she moved her leg quickly. She had trouble sleeping because of pain and a growing sense of frustration because of her knee condition.
On 23 September 2011, Dr Richardson performed a right knee arthroscopy and partial medial meniscectomy. The applicant then had one month off work during which she took a pre-arranged holiday with her sister to Thailand. From October 2011, the applicant was admitted to successive rehabilitation programs. She was on restricted hours and seated activities, gradually performing restricted duties on a full-time basis at Toowong,
Sumner Park and Archerfield Business Centres. She continued to experience pain in her right knee and underwent a further MRI in January 2012 as directed by Dr Richardson.
As part of an Employee Assistance Program (“EAP”) in 2012, the applicant attended sessions with a psychologist who recommended that she get a mental health care plan through her general practitioner, Dr Shardam Kardooni. She also had intensive physiotherapy and hydrotherapy sessions for several months and, in May 2012, she was given a Mental Health Care Plan under which she attended counselling sessions with a psychologist at the Greenbank Family Practice. She continued in her work during 2012 on restricted duties but on full-time hours until December 2012 when the respondent advised her that suitable duties were no longer available and she was put off work.
She was advised that she should use up all of her leave and long service entitlements after which she would be required to prove complete fitness for her pre-injury duties before returning to work. She has not returned to work.
The applicant’s husband advised her in April 2012 that he wished to separate from her and they then occupied separate bedrooms in their house. She described this as a “blip” in their relationship. Of concern was the husband’s continuing association through texting with a Thai woman. Her husband left the house for about a week to visit relatives but returned in June 2012 and they resumed their normal marriage arrangements until August 2013 when she left the house at her husband’s insistence. They have been separated and have not spoken since then. The applicant confided in Dr Kardooni about her marriage during April to June 2012 and, on 24 April 2012, he diagnosed her as having an adjustment disorder.
The applicant agreed that she had taken a day off work in March 2012 for which she had been abused by her boss. She also agreed that her union was involved in the respondent moving her from Toowong to the Archerfield facility which was easier for her to cope with her knee problem as there were no internal stairs to negotiate.
The applicant agreed that she had not fully advised Dr Eric De Leacy, a psychiatrist, about her marriage problems and was unable to recall if she referred to these when she saw another psychiatrist, Dr Jon Steinberg. She also agreed that she attended a Medicross practitioner, Dr Heena Desai, from October 2010 until August 2011 and that she advised her, on 2 June 2011, that she was “tearful”, “missing her family down south” and had “stress at work”. She denied that stress associated with work and her rehabilitation program were the reason for her feelings of stress. She said that, despite management issues, return to work problems and relationship concerns, she continued to be troubled by her knee in April 2012.
Medical evidence
The applicant was treated by practitioners at the Greenbank centre of Medicross Medical Pty Ltd (“Medicross”) and Jindalee.[3] The Medicross and Jindalee clinical notes were in evidence. The applicant said that she had been instructed that all her consultation about her knee had to be at Jindalee.
[3] The respondent’s facility nominated doctor: see applicant’s statement: Exhibit 2 at page 8.
The practitioners that the applicant saw at Medicross included: Dr Heena Desai from before the applicant’s knee injury until August 2011 as well as in November 2012;
Dr Kirsty Torson in October 2011; Dr Sajid Siddiqi in November 2011; Dr Shahram Kardooni from March 2012; Dr Mehdi Zahedpur in April 2012; Ms Janita McAnally in January 2013; and Mrs Janita Averay in March 2013. Summaries of their respective notes are:
Dr Desai
·2 June 2011: “recently stress[ed], tearful, missing family down south, stress at work.”
·23 August 2011: stomach problems.
Dr Torson
·25 October 2011: stomach problems after the applicant had returned from Thailand.
Dr Siddiqi
·25 November 2011: the possibility of Meniere’s disease.
Dr Zedahapur
·21 April 2012: tearful; husband decided to separate from her; recovering from a work-related injury; applicant counselled; diagnosis of “[d]epression and anxiety without suicidality”.
Dr Kardooni
·2 March 2012: severe right knee pain and swelling for a few days; work injury in 2011 and a knee operation; abuse at her work by her boss; limping, tender right knee, mildly swollen; gets emotional and starts crying.
·6 March 2012: knee symptoms; “very stressed after her issues with her boss at work”; cried; emotional instability; husband concerned about her getting distressed; diagnosis of “R knee meniscal injury + Psychological complications (injury related)”.
·13 April 2012: getting better with Archerfield a better workplace for her; knee pain temporarily worse after examination.
·24 April 2012: prescribed valium; diagnosis of adjustment disorder; “[s]evere stress and sadness”; husband wants to separate and now living in separate rooms; applicant feeling “stressed”, “freaking out” and “did not see it coming”.
·26 April 2012: in similar terms as 24 April 2012.
·3 May 2012: very upset about the separation; husband “has got a thing for Thai women”; diagnosis of adjustment disorder; long counselling session was provided.
·4 May 2012: diagnosis of depression/anxiety and adjustment disorder; Mental Health Care Plan done; referred to Dr Michelle Andrews, psychologist, for urgent review.
·17 May 2012: much improved; diagnosis of adjustment disorder; very effective treatment by Dr Andrews.
·4 June 2012: husband had left the house and continued to text a Thai woman; break in to applicant’s house while she was at with work, and car and jewellery stolen; “emotional and teary, cries”; diagnosis of “adjustment disorder (Separation issues)”.
·7 June 2012: diagnosis of “marriage stress”; looked better; less anxious and stressed; feeling better that husband called back; review of her marriage issues and depression.
·20 June 2012: diagnosis of adjustment disorder; spent weekend with husband; communicating; feeling better and seeming to be happy.
·25 June 2012: forms needed for assessment of knee injury.
·4 July 2012: able to return to work on suitable duties.
·16 August 2012: diagnosis of hypertension and otitis externa.
·10 September 2012: provisional diagnosis of right knee osteoarthritis; meniscal injury repaired; “nothing can be done after her surgical repair, no reason found”.
·16 and 19 September 2012: bronchial problems.
·3 October 2012: diagnosis of degenerative joint disease and meniscal injury; knee injury as “still actively there”.
·4 October 2012: certificate for her workplace injury.
·29 October 2012: thigh pain.
·22 November 2012: right knee injury; limited range of movement (“ROM”) with swelling and tenderness.
·2 December 2012: referred to have hip and back X-ray; knee was still sore.
·3 December 2012: work stopped her from working until knee gets better; feels emotional and upset; R knee pain; referral to orthopaedic surgeon
Dr Sanjay Joshi.·23 January 2013: Dr Joshi’s report available; MRI revealed a “small posterior tear in the medial meniscus”.
·18 February 2013: very stressed; she and her solicitor wanted something from him about depression; uncertain of what the applicant was seeking; diagnosis of anxiety/depression back to March/May 2012 after the incident with her husband; husband issue may have worsened her depression but before that she had issues with ongoing disabling knee pain; “her solicitor might be right that the knee issue and the resulting disability was the initial trigger for her depression”.
·4 March 2013: knee was still sore.
·7 March 2013: diagnosis of depression and anxiety; ongoing issues with knee.
·11 March 2013: diagnosis of major depressive disorder
·24 March 2013: diagnosis of secondary depression/anxiety (work related); worsening of work related knee issue; aggravation due to relationship issues in May/June 2012.
At Jindalee, the applicant saw Dr Jasveer Bali on 10 occasions from the date of her injury on 20 June 2011 until 15 September 2011 and then Dr Bhavik Damodar until
14 February 2013. Initially, pain and swelling as well as limited ROM was noted.
By 21 July 2011, the knee was noted to be improving with the help of physiotherapy and with pain present mainly on squatting and going up stairs. On 28 July 2011, further improvement was described but, on 11 August 2011, Dr Bali noted that the applicant was getting very upset, crying and had swelling and ROM restricted by pain. On
30 August 2011, Dr Bali referred to the applicant’s knee pain and noted that she was “feeling frustrated and emotional” and was “very worried about her [right] knee”. Those Jindalee records also include several reports from Dr Richardson both before and after his surgical procedure on the applicant’s knee in September 2011. On 5 and 13 October 2011, he recommended that she have physiotherapy. On 6 December 2011,
Dr Richardson noted anterior knee pain and difficulty in squatting and using stairs.
He recommended cessation of physiotherapy and a concentration of heel strike on ambulation. On 19 January 2012, an MRI report, directed by Dr Richardson, was completed by Dr Mark Ready. It concluded:
Post partial meniscectomy changes posterior horn medial meniscus. No evidence of re tear. No osteochondral abnormality present. No evidence of any intra-articular loose body.
On 25 January 2012, Dr Richardson's opinion was that further surgery to her knee would make no significant difference and suggested that she undertake light duties and further physiotherapy.
Another report from Dr Richardson, dated 26 March 2012, noted that a repeat MRI scan demonstrated no evidence of re-tearing of the medial meniscus which was consistent with minimal medial joint line discomfort and minimal evidence of degenerative change in the joint. His opinion was that the condition should have settled with conservative treatment and he was not convinced that any further surgery would assist her.
He recommended that the applicant obtain a second opinion in the form of an independent medical examination. She continued with restricted duties until she ceased work on 4 December 2012.
On 30 April 2012, Dr Richardson reported on the history of the applicant’s knee condition and noted that it had failed to settle despite physiotherapy and hydrotherapy. He referred to the January MRI which revealed no evidence of osteochondral abnormality. Again, he concluded that further surgery would not improve her knee function. On 25 May 2012, he could find no evidence of osteochondral abnormality and, again, he concluded that further surgery would not provide any significant relief.
A Mental Health Care Plan was completed by Dr Kardooni. In the plan, dated
4 May 2012, severe adjustment disorder and secondary depression (medical disability) is noted. The features listed relate to relationship difficulties but a precipitating factor is noted to be right knee meniscal injury pain/disability. It lists many issues as “relevant information” but little reference is made to the applicant’s knee as it concentrates on her past relationship problems. Both failed relationship and her knee pain were listed as major stressors.
Dr Bruce Martin, orthopaedic surgeon, completed a report on 16 April 2012. He noted that the applicant complained of pain, especially at night, and swelling in the right knee. She had trouble with stairs and could not straighten her right leg. Dr Martin noted that the applicant walked with a limp to her right leg and described her presentation as “abnormal” in that the MRI findings indicated that the knee should be functioning normally. He concluded that there was no underlying pathology to cause her symptoms, that “her limp was contrived” and that she “voluntarily exaggerated her symptoms”.
Dr Martin wrote that the applicant’s presentation was not consistent with the injury she sustained or with the treatment she had received. He was asked to assume that she did suffer her declared symptoms and asked if there could be some unidentified problem in the knee. Dr Martin denied that and said that any problem would have shown up in the MRI. Dr Martin also rejected the suggestion that an examination under general anaesthetic would be appropriate on the basis that he did not believe that it should be undertaken for a knee joint.
Dr Sanjay Joshi, orthopaedic surgeon, completed reports on 5 and 14 December 2012.
In his first report, he referred to the history of the applicant’s knee injury and associated treatment. He noted that the applicant continued to suffer from ongoing severe pain which affected her sleep and activities of daily living. He was unable to give a reason for the applicant’s limited flexion and considered that it may be voluntary guarding. Dr Joshi postulated that an examination of the knee under general anaesthetic and another arthroscopy might determine whether or not her restriction of movement is voluntary. However, he wrote that he could not be sure that a further arthroscopy would solve her problem.
In his second report, Dr Joshi referred to the MRI report completed in January 2012 and concluded that it did not demonstrate any abnormal findings apart from changes of meniscectomy. He considered that the MRI changes would not account for the applicant’s symptoms and that her limp and flexion deformity were out of proportion.
Dr Joshi did not repeat his previous reference to an examination under general anaesthetic and, indeed, concluded that the MRI findings were not sufficient to justify another arthroscopic examination though he conceded that her symptoms may do so.
He also explained to the applicant that any further surgery was to be done with a guarded prognosis and may not help her. In that report, his recommended pain management treatment was with physiotherapy.
Dr David Morgan, orthopaedic surgeon, completed a report on 14 March 2013, having viewed an MRI performed in December 2012. In his opinion summary, Dr Morgan noted a strong temporal link between the knee condition and the accident on 20 June 2011 but wrote that it was difficult for him to find a rational orthopaedic explanation for it and he gained no assistance from the recent MRI. His opinion was that there were possibly “significant non-orthopaedic factors at play”. He considered that it was possible that the applicant may benefit from an examination of the joint under a general anaesthetic where any mechanical reason for her marked restriction in ROM would be apparent.
He observed that a further arthroscopic examination could be performed. He also wrote that, if no orthopaedic cause was revealed, it may be appropriate for the applicant to be referred to a psychiatrist for a formal assessment and treatment. He noted that the applicant had continued on a graduated program of work and that the respondent terminated her employment in December 2012.
Dr Jon Steinberg, a psychiatrist, completed reports on 5 June 2013 and 5 August 2013.
In his first report, he noted the history of the applicant’s work and treatment for her right knee. He noted that she travelled to Thailand in October 2011 but was only able to do so because she used a wheelchair for the trip. Dr Steinberg diagnosed major depressive disorder of mild severity. He considered that this was not severe enough to prevent her from working. He conceded that she may have a physical disability which would do so. His opinion was that the depressive condition was precipitated by the applicant’s chronic knee pain.
Dr Steinberg’s second report was completed after he read the report of Dr Morgan and the clinical notes from Medicross. He noted that there was no mention of knee pain to the applicant’s general practitioner in 2011. He also noted the applicant’s marriage problems which had not been advised to him previously. He noted that Dr Morgan found no orthopaedic abnormality to explain the applicant’s disability. While Dr Steinberg maintained his diagnosis of major depressive disorder, he considered the cause of this was now uncertain. Dr Steinberg wrote that the applicant developed major depressive disorder in the context of relationship stress combined with her alleged ongoing knee pain and disability exacerbated by her loss of employment. Because he had not been advised of the marriage problems, he was unable to assess the proportion that her marriage problems contributed to her psychiatric illness. His opinion was that marital crisis in mid-2012 would have been a major precipitating factor for her major depressive disorder. He noted that there was no reference to psychiatric disorder by a general practitioner prior to the marital crisis.
In his evidence, Dr Steinberg acknowledged that the applicant had reported her knee problems to the Jindalee practitioners in 2011 but, nevertheless, considered it unusual for her not to make some reference to it to Dr Kardooni, her treating doctor. He said that, by not referring to the knee condition, Dr Kardooni had missed an important cause of the applicant’s major depressive disorder. Dr Steinberg’s opinion was that both the marriage problems in April and May 2012 and her knee condition were significant factors in the development of the applicant’s major depressive disorder.
Dr Eric De Leacy, psychiatrist, completed a report on 14 November 2013. He had access to the reports of the orthopaedic surgeons noted above and Dr Steinberg as well as the Jindalee and Medicross clinical notes. He outlined the applicant’s work history and her knee treatments. He described the applicant as still having major problems with her knee pain impacting on driving, walking, negotiating stairs, doing housework, gardening and shopping. He also noted that the applicant and her husband are separated and that the applicant was consuming alcohol heavily for a period of time when her marriage was failing. He diagnosed major depressive disorder which was chronic but of moderate intensity. His opinion was that this probably started as an adjustment disorder.
He considered that the depression is due to “her pain and loss of amenity which is due to the work related knee injury”. In his evidence, Dr De Leacy conceded that, though the applicant had advised him of marital difficulties in 2012, he had not been aware of the full impact of these on her. He stated that he had been advised of those problems and his opinion was that the applicant’s major depressive disorder was related to both her knee condition and her relationship problems in 2012.
Psychology and physiotherapy reports
Davidson Trahaire Corpsych provided psychology services for the applicant in
March and April 2012. On 9 March 2012, a report noted the applicant had involved her union in negotiations about her place of work; was “very distressed”; and was crying in her sleep about not going back to work. On 23 March 2012, it was noted that she had been moved to Archerfield which was preferable for her but was only a temporary arrangement. She is noted to have “manageable pain” in her knee but felt grief and loss at the permanence of her injury. On 13 April 2012, it was noted that she was having hydrotherapy sessions and also that she complained of the “rough” and “rude” orthopaedic surgeon she had seen and who left her with serious pain in her knee.
Dr Michele Andrews from Mind Wise Psychology Services provided clinical notes on sessions with the applicant in May and June 2012[4] and in May and June 2013. Initially, this was a referral by Dr Kardooni on 4 May 2012. On 11 May 2012, the notes relate to the separation from her husband, his texting the Thai woman and the effects upon the applicant of that state of affairs including lack of sleep, alcohol use and suicidal thoughts. It was noted that the applicant had been back at work that week which was “OK, a bit absent minded, boss is really good”. A reference is made to her knee condition by
Dr Andrews in terms: “? injury work related (Rt knee)”. On 25 May 2012, the reporter noted that the applicant’s “focus [was] on concern about her husband rather than herself”. Financial concerns were noted because her husband had not received wages for
12 weeks. It was noted that the applicant was “scared of being alone”, that her husband had left the home and that she was uncertain of his intentions. No reference appears in those notes to her knee condition. It was noted that the applicant “generally looks better - less teary”. On 15 June 2012, the reporter noted that the applicant’s house had been broken into and her new car and jewellery stolen. Her husband’s return to the house was noted as was his willingness to work at the marriage. As to the applicant’s mood, it was noted: “pretty good, feels a lot calmer, feels she is coping better generally, less teary overall, more aware of looking after herself and her needs, ongoing pain related to her knee injury”. On 29 June 2012, the reporter noted: “mood pretty good, less teary [and] less emotionally labile.” It was noted that she had been to Orange to visit her son.
On return, the applicant referred to her husband as making a big effort for the marriage to work and had ceased his contact with the Thai woman. It was noted that the applicant’s anxiety around her husband’s situation had lessened. The applicant referred to her work in terms that she was on light duties and had taken a demotion. The reporter described the applicant as appearing “much stronger and proactive, doing much better – ongoing financial stressors but otherwise doing well”. The reporter also referred to her knee injury, noting: “work injury, had operation 12 months ago but no better”.
[4] These notes are hand-written and some parts are illegible.
The 2013 clinical notes were entered by Dr Andrews from Mind Wise Psychology Services. On 15 May 2013, it was noted that the applicant and her husband were together, her mood is described as “depressed” with “no self esteem”. The applicant reported frustration at being out of work. Her knee pain was noted to be the same as it had been and may be worse. Some continuing financial concerns were noted and
Dr Andrews’ summary was: “adjustment disorder (dep and anx mood) secondary ongoing pain, loss of job and exacerbated by relationship issues”. On 5 June 2013, the applicant is described as being “flat, depressed, restricted affect” with pain being worse in cold weather. Dr Andrews noted “a lot of financial stress” and a feeling that she had been let down at work. On 17 June 2013, Dr Andrews described the applicant as being “better” but with anxiety about leaving the house. On 28 June 2013, Dr Andrews noted lack of motivation and reliance on her husband to do house work. On 21 August 2013, the applicant is noted to have travelled to Orange to look after her grandson. On return, her husband advised that he wanted to separate. She was noted to be “very distressed over the separation”. Dr Andrews noted the applicant’s belief that the relationship breakdown was due to her depression and ongoing pain issues.
In her rehabilitation program, the applicant underwent physiotherapy treatment and hydrotherapy and had consultations with a psychologist through the EAP.
A Rehabilitation Progress Report (“RPR”), dated 10 November 2011, noted that the applicant became tearful, referring to her difficulty coping at home. Another RPR, dated 20 December 2011, referred to an interview on 18 November 2011 in which the applicant reported frustration and difficulty with managing ongoing symptoms. An RPR, dated
9 February 2012, noted that the applicant had concerns about appointment times for physiotherapy sessions outside of work hours and also noted that the applicant described herself as becoming “depressed” with lack of progress with her knee condition. An RPR, dated 23 March 2012, described the applicant as suffering increased symptoms as a result of the physiotherapy and again noted a self-report by the applicant that she felt depressed due to the slow progress. An RPR, dated 23 April 2012, noted that the applicant had completed six sessions of counselling through EAP and had been advised to discuss a Mental Health Care Plan with her general practitioner. A further RPR, dated
31 May 2012, noted that the applicant’s physiotherapy and hydrotherapy continued.
The report noted that, on 24 April 2012, she displayed slow progress and high pain levels, that she “guarded” the right knee, had a limited ROM and had an altered gait.
It noted that, on 11 May 2012, she had ongoing swelling and pain in the right knee, which she was struggling to cope with and was encouraged to access Adjustment to Injury Counselling with her general practitioner.
CONTENTIONS
For the respondent, Mr Charles Clark submitted that the only provision relevant to the matters before the Tribunal was s 14 of the Act in that the issue is whether the applicant has an ongoing injury. I accept that s 14 of the Act is relevant in respect of the applicant’s claim for depression but not in respect of her knee condition. Under s 14 of the Act, the respondent accepted that it was liable to pay compensation in accordance with the Act for her knee condition. That has not changed as the reviewable decision did not purport to revoke the determination under s 14 of the Act which, on rare occasions, will occur when one of the underpinning criteria for s 14 is not made out and where liability should not have been accepted in the first place.[5] For the knee condition, the respondent remains liable to pay compensation in accordance with the Act but has determined that it not presently liable to do so under ss 16 or 19 of the Act. This is because, on the view taken by the respondent, the requirements of those provisions are not satisfied. For the applicant’s depression, the respondent has determined that there is no liability under
s 14 of the Act.
Knee condition
[5] See, for example, Sullivan and Military Rehabilitation and Compensation Commission [2014] AATA 259.
For the applicant, Mr Matt Black submitted that the applicant continues to suffer from the injury to her right knee and that she is entitled to compensation in respect of medical expenses related to that condition under s 16 of the Act and to compensation for her depression under s 19 of the Act.[6]
[6] Citing Lutteral and Military Rehabilitation and Compensation Commission (2012) AATA 692 at [13].
Mr Black submitted that, under s 16 of the Act, the respondent was liable to pay for the cost of medical treatment obtained “in relation to” the knee injury.[7] He submitted that there was evidence from Dr Morgan and Dr Joshi to the effect that a procedure, which constitutes medical treatment as defined in the Act,[8] could be undertaken while the applicant was under general anaesthetic and which would ascertain the extent to which she continues to suffer incapacity from the knee condition. He submitted that the respondent was liable to meet the costs of that and any consequential procedure.
[7] Citing Kavas and Comcare [2011] AATA 935 at [42]; Clement and Comcare [2012] FCA 166 at [8]; Commonwealth v (K C) Smith (1989) 18 ALD 224; Comcare v Nicholls [1999] FCA 209 at [22]; Lang v Comcare [2007] FCA 17 at [25]
[8] See s 4(1) of the Act.
Mr Clark submitted that the procedure identified by Dr Morgan and Dr Joshi was one which the applicant should have undergone prior to these proceedings in order to establish that she had ongoing incapacity from her knee condition. He also submitted that, in assessing the evidence of the applicant, regard should be had to the various inconsistences in her evidence and the variable accounts she has provided to medical practitioners who have examined her.
Mr Black submitted that the applicant is incapacitated for work as a direct result of her knee injury and as a result of her depressive disorder which was precipitated by her knee injury. Accordingly, he submitted, the respondent is liable to pay compensation to her under s 19 of the Act.
Mr Clark submitted that there is no evidence that the applicant remains incapacitated by her knee injury and that her depressive disorder is related to her personal circumstances surrounding her marriage difficulties rather than to her knee condition.
Depression
For this condition, Mr Black submitted that the applicant suffers from depression which is an ailment under s 5B of the Act which was contributed to, to a significant degree, by the effects of her continuing compensable knee injury. Accordingly, he submitted, it is a disease under s 5B of the Act and, therefore, an injury under s 5A of the Act for which the respondent is liable, under s 14 of the Act, to pay compensation to her in accordance with the Act. He accepted that there was also significant contribution to the applicant’s depression from her relationship problems in 2012. However, he submitted that it was not necessary that her knee condition was to be the sole contributor to her psychological state as long as it was a significant contributor.[9] Mr Black submitted that the psychological effects of the knee injury predated those from the relationship problems and continued through the relationship problems and after they ceased.
[9] Citing Havnen and Comcare [2010] AATA 535 at [67].
Mr Clark submitted that, under s 14 of the Act, the respondent was not liable to pay compensation under the Act for the applicant’s depressive disorder because it was not contributed to, to a significant degree, by her work or her knee injury but, rather, developed as a consequence of her serious relationship difficulties in 2012.
LEGISLATION
The provisions of the Act pertaining to this matter, in so far as relevant, are:
Section 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
“disease” has the meaning given by section 5B.
…
“injury” has the meaning given by section 5A.
…
“medical treatment” means:
….
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis;
…
“therapeutic treatment” includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
Section 5A Definition of injury
(1) In this Act:
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B Definition of disease
(1) In this Act:
“disease” means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
Section 14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
CONSIDERATION
Knee condition: s 16 of the Act
As early as 25 January 2012, Dr Richardson's opinion was that further surgery to the applicant’s knee would make no significant difference to her. On 26 March 2012, he noted that a repeat MRI scan demonstrated no evidence of re-tearing of the meniscus and considered that this was consistent with minimal medial joint line discomfort and minimal degenerative change in the knee joint. His opinion was that the condition should have settled with conservative treatment. On 25 May 2012, he could find no evidence of osteochondral abnormality and repeated his opinion that further surgery would not provide any significant relief. Those opinions and those of Dr Martin pre-date the reviewable decision. Dr Martin described the applicant’s presentation as “abnormal” in that it was not consistent with the injury she sustained, with the treatment she had received or with the MRI findings which indicated that the knee should be functioning normally. He found no underlying pathology to cause her symptoms, that “her limp was contrived” and that she “voluntarily exaggerated her symptoms”. In his evidence,
Dr Martin confirmed his opinion and also rejected the suggestion that the examination under general anaesthetic would be appropriate on the basis that he did not believe that it should be undertaken for a knee joint.
Dr Joshi completed two reports in December 2012. In his first report, he noted that the applicant continued to suffer from ongoing severe pain. He was unable to give a reason for the applicant’s limited flexion and considered that it may be voluntary guarding.
Dr Joshi postulated that an examination of the knee under general anaesthetic and another arthroscopy might determine whether or not her restriction of movement is voluntary. However, he also wrote that he could not be sure that a further arthroscopy would solve her problem. In his second report, Dr Joshi considered that MRI changes would not account for the applicant’s symptoms and that her limp and flexion deformity were out of proportion. He did not repeat his reference to an examination under general anaesthetic and, indeed, concluded that the MRI findings were not sufficient to justify another arthroscopic examination. Dr Joshi recommended that future pain management treatment should continue through physiotherapy.
Dr Morgan’s report was completed on 14 March 2013. He could find no rational orthopaedic explanation for the applicant’s symptoms and considered that there were “significant non-orthopaedic factors at play”. He referred to a possibility that she may benefit from an examination under a general anaesthetic and a further arthroscopic examination.
The reviewable decision was made on 6 June 2012. The orthopaedic surgeons have considered the applicant’s condition from January to December 2012. They are consistent in their conclusions that there is no orthopaedic basis for the symptoms displayed by the applicant. As at 6 June 2012, I am satisfied that, overwhelmingly, the evidence is that there is no objective orthopaedic basis for the continuation of the applicant’s knee symptoms. In that situation, the issue raised by the applicant is whether the respondent should be responsible for payment of the costs associated with an examination under a general anaesthetic and a further arthroscopic examination.
The definition in s 4(1) of the Act of “medical treatment” includes “an examination… carried out on… an employee at the request or direction of a legally qualified medical practitioner” as well as “therapeutic treatment obtained at the direction of a legally qualified medical practitioner”. In turn, “therapeutic treatment” includes an examination for the purpose of diagnosing an injury.[10] I am satisfied that the examination of the applicant’s knee under general anaesthetic has the potential to fall within those definitions. I also accept Mr Black’s contention that a broad interpretation should be given to the phrase “obtained in relation to” as it appears in s 16 of the Act.[11]
The purpose of the procedure would be to assess whether some internal component of the applicant’s knee continues to restrict her knee movement and I am satisfied that this would be in “in relation to” the injury accepted by the respondent. However, a requirement of s 16 of the Act is that it is reasonable for the applicant to obtain that treatment in the circumstances.
[10] See above para 36.
[11] See Pratt and Comcare [2004] AATA 1281 at [25], Manns and Comcare [2012] AATA 462 at [22]; and Lutteral and Military Rehabilitation and Compensation Commission (2012) AATA 692 at [13].
Any measure of the reasonableness of requiring the respondent to meet the costs of the procedure must include an assessment of the strength of the evidence in favour of the procedure. Dr Richardson makes no reference to it but his consistent opinion has been that further surgery would not assist the applicant. Dr Martin opposed the prospect of the procedure. Dr Morgan described any benefit to the applicant from the procedure in terms only of a “possibility”. Dr Joshi referred to the procedure in his first report. However, he did not refer to this in his second report where he concluded that MRI findings were not sufficient to justify another arthroscopic examination and advised that he had explained to the applicant that any further knee surgery had a guarded prognosis and may not help her. Taken together, I am satisfied that the very limited support for the procedure by specialist evidence does not support the reasonableness of the applicant undertaking the procedure under s 16 of the Act.
Under s 16 of the Act, the respondent is to pay for the procedure if it is reasonable for her to undergo it “in the circumstances”. The most significant circumstance in the applicant’s case is the unchallenged opinion evidence of four orthopaedic surgeons that there is no continuing orthopaedic problem in the applicant’s knee. Another is that three of them were of the opinion that there was a voluntary component to the display by the applicant of her symptoms. In that regard, Dr Martin wrote that her limp was contrived and that she voluntarily exaggerated her symptoms; Dr Joshi wrote that there were symptoms of voluntarily guarding with non-proportional limping and flexion deformity; and
Dr Morgan considered that that there were significant non-orthopaedic factors at play.
In the circumstances of the applicant’s case, I am satisfied that the respondent correctly determined that, as at 6 June 2012, it was not presently responsible for the applicant’s further medical treatment for her right knee condition. In that situation, I would affirm the decision in relation to application (application no. 2012/5568).
Knee condition: s 19 of the Act
Mr Black has contended that the applicant’s major depressive disorder should be treated as a condition which has arisen “as a result of” her knee injury under s 19 of the Act. Based on the reasoning set out below, I accept his submission. It is relevant that the applicant had symptoms of the condition prior to 6 June 2012. I am satisfied that the applicant’s major depressive disorder has been significantly contributed to, in a manner that was more than material, by the effects upon her of her previously accepted knee condition and that she is entitled to be paid compensation for the condition under s 19 of the Act.
Depression: s 14 of the Act
Dr Steinberg, for his first report, was not made aware of the relationship difficulties experienced by the applicant in 2012. Dr De Leacy, for his report, was aware of marital difficulties in 2012 but not the full effect of them. In their reports, each of them diagnosed major depressive disorder and ascribed the condition to the applicant’s right knee injury.
When supplied with the Medicross clinical notes, Dr Steinberg noted an absence of reference to knee pain in 2011. That, and the opinion of Dr Morgan, raised doubts in his mind about the cause of the applicant’s major depressive disorder. He noted the applicant’s marriage problems and Dr Morgan’s opinion that there was no orthopaedic abnormality to explain the applicant’s disability. His opinion in his second report was that the applicant’s marital crisis in mid-2012 would have been a major precipitating factor for her psychiatric condition. In his evidence, Dr Steinberg acknowledged that the applicant had reported her knee problems to the Jindalee practitioners in 2011.
Dr Steinberg’s opinion was that both the marriage problems in April to June 2012 and applicant’s knee condition were significant factors in the development of the applicant’s major depressive disorder.
In his report, Dr De Leacy, in November 2012, noted that the applicant continued to have problems with her knee, that the applicant and her husband were separated and that the applicant was consuming alcohol heavily for a period of time when her marriage was failing. He diagnosed major depressive disorder which started as an adjustment disorder and was related to the knee injury. In his evidence, Dr De Leacy conceded that, though the applicant had advised him of marital difficulties in 2012, he had not been aware of the full impact of these on her. He stated that he had since been advised of those problems and his opinion was that the applicant’s major depressive disorder was related to both her knee condition and her relationship problems in 2012.
The Medicross clinical notes do not refer to the applicant’s knee condition in 2011.
The applicant’s explanation that she was to have her consultations for the condition with Jindalee is confirmed by the Jindalee clinical notes.
The first diagnosis of a psychiatric condition was made by Dr Kardooni on 21 April 2012 when his clinical note describes “depression and anxiety without suicidality”. Prior to that, Dr Richardson’s reports confirm that the applicant had a knee injury. In his respective reports in July, October and December 2011 as well as in January 2012, his comments relate to orthopaedic aspects of her injury without reference to psychological matters. There are some references in the Jindalee clinical notes to symptoms which point to the presence of a psychiatric condition before Dr Kardooni’s diagnosis.
They describe the applicant’s knee concerns in 2011 including, on 11 August 2011, that she was “getting very upset, crying”. On 30 August 2011, she was “feeling frustrated and emotional” and was “very worried about her [right] knee”.
The RPR reports in 2011 and early 2012 also refer to symptoms displayed by the applicant. On 7 November 2011, she is noted, referring to her difficulty coping at home, to become tearful; on 18 November 2011, the applicant is reported to show frustration and difficulty with managing ongoing symptoms; and on 25 January 2012 and
23 March 2012, she is noted to describe herself as becoming “depressed” with lack of progress of her knee condition. The Davidson Trehaire Corpsych reports refer to the applicant’s circumstances prior to Dr Kardooni’s diagnosis. On 9 March 2012, a report noted the applicant was “very distressed” and was “crying in [her] sleep about not going back to work”. On 23 March 2012, she is noted to have “manageable pain” in her knee but felt grief and loss at the permanence of her injury. A level of psychiatric concern in relation to the knee condition was expressed by Dr Kardooni on 6 March 2012 in his clinical note which reads: “R[ight] knee meniscal injury + psychological complications (injury related)”. Even his note on 21 April 2012 refers to the applicant’s work-related injury as well as the applicant’s relationship problems.
On that evidence, there was no formal diagnosis of a psychiatric condition, as opposed to a reference to some symptoms, in the applicant prior to 21 April 2012. Until
20 June 2012, Dr Kardooni’s clinical notes are written in the context of the applicant’s relationship problems. They read:
·21 April 2012: depression and anxiety without suicidality; [12]
·24 April 2012: adjustment disorder;
·26 April 2012: separation (marriage issues);
·3 May 2012: adjustment disorder;
·4 May 2012: depression/anxiety + severe adjustment disorder;
·17 May 2012: adjustment disorder;
·4 June 2012: adjustment disorder due to separation issues;
·7 June 2012: marriage stress; and
·20 June 2012: adjustment disorder.
[12] Dr Kardooni saw the applicant on 13 April 2012 but did not give a psychiatric diagnosis.
In June 2012, the applicant and her husband reconciled and that is reflected in the content of Dr Kardooni’s clinical notes on 20 June 2012 and thereafter. The focus returned to the applicant’s knee condition. As has been determined above, the respondent, from
6 June 2012, is not presently liable under the provisions of the Act for the effects of the applicant’s knee injury. However, before 6 June 2012, the evidence is that the applicant already suffered from a psychiatric condition, variously described as an adjustment disorder or depression/anxiety. Both Dr De Leacy and Dr Steinberg have diagnosed major depressive disorder and I am satisfied that the applicant suffers from that condition which had its onset prior to 6 June 2012. Both Dr De Leacy and Dr Steinberg have attributed the applicant’s major depressive disorder to effects of her knee condition as well as her relationship problems. I accept their opinions in that regard.
No guidance was provided by Dr De Leacy or Dr Steinberg as to the proportional contribution from those two causes but I am satisfied that this is not necessary in this matter. Under s 5B of the Act, a condition will be a disease if it was contributed to a significant degree, by an employees’ employment. That there may be more than one such contributing factor will not defeat the applicant’s claim as long as one is related, in the manner required by s 5B of the Act, to the applicant’s employment.[13] That attribution to employment will be satisfied if the condition is significantly contributed to by a compensable condition, in this case, her knee injury.[14] However, for the applicant’s major depressive disorder to meet the terms of s 5B of the Act, the contribution must be “significant” which requires that it be more than material. In so determining, the following matters may be taken into account:[15]
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
[13] See Havnen and Comcare [2010] AATA 535 at [67] and Hey and Comcare [2013] AATA 131 at [59].
[14] See Chillemi and Telstra Corporation Limited [1998] AATA 106 and Commonwealth and (K C) Smith (1989) 18 ALD 224.
[15] See s 5B(2) of the Act.
The applicant worked for the respondent from 1997 and, therefore, she was employed in various mail centres for the significant period of some 14 years before she was injured in June 2011. The applicant’s work involved her in various tasks involving the lifting of postal parties and it was in performing such tasks that her knee was injured.
She developed symptoms of a psychiatric condition during 2011 and early 2012 before her relationship problems emerged. Around 21 April 2012, the attention of the applicant’s treating doctors was overtaken by activities of the applicant not related to her employment, namely, her relationship problems and a housebreak in. These were serious and resulted in the recording of her reactions as involving “tearfulness”, “stress” and “freaking out”, the prescription of valium and a referral to psychologist Dr Andrews. During that period of two months from 21 April until 20 June 2012 various recognised psychiatric diagnoses were made with specific links to problems which were not associated with the applicant’s work or her knee injury.
Despite that, during those two months, there continued to be some references to the applicant’s knee problems. For example, in the RPR dated 31 May 2012, several aspects of her continuing knee problems are noted on 24 April 2012 and 11 May 2012. In the Mental Health Care Plan, dated 4 May 2012, ”severe adjustment disorder + secondary depression (medical disability)” is noted. The features listed relate to relationship difficulties but a precipitating factor is noted to be “[r]ight knee meniscal injury pain/disability”. Both her failed relationship and knee pain were listed as major stressors. On 11 May 2012, Dr Andrews referred to her knee condition by noting “? injury work related (Rt knee)”. After the marital crisis had passed, there were again references in
Dr Kardooni’s records to her knee problems as well as other routine matters.
On the issue of contribution, the Tribunal, in Hey and Comcare,[16] analysed the relevant authorities and concluded:
Although these extracts state that the tests for causation are to be ‘more than a mere contributing factor’, the words in section 5B(3) of the Act, namely that the ‘evaluative threshold’ is required to be ‘substantially more than material’ suggest the test requires something more than ‘a mere contributing factor’, a view reinforced by the Second Reading speech to the 2007 Bill‘s statement that employment must have ‘contributed in a significant way’.
[16] [2013] AATA 131 at [63].
When Dr De Leacy and Dr Steinberg became aware of the matters that impacted on the applicant’s mental health from June 2011 until June 2012, they each concluded that the applicant’s major depressive disorder was related to both her relationship difficulties and her knee condition. The evidence is that she had symptoms of a psychiatric nature relating to her knee condition throughout that time. Its persistence, during and beyond the effects of other stressors, leaves me satisfied that the knee condition was very significant, and more than material, in the development and continuation of her major depressive disorder until she was seen by Dr De Leacy and Dr Steinberg.
Based on the evidence of the orthopaedic surgeons, I have determined that the effects of the applicant’s knee conditions ceased by 6 June 2012. However, I am satisfied that the applicant’s major depressive disorder had become manifest by then and has continued as an independent ailment,[17] and a disease under s 5B of the Act and, therefore, an injury under s 5A of the Act. It follows that Comcare is liable, under s 14 of the Act, to pay compensation in accordance with the Act to the applicant in respect of that injury.
[17] See Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224 at 226.
DECISION
Application [2012/5568]
The Tribunal affirms the decision under review in so far as it relates to s 16 of the Act. The Tribunal sets aside the decision under review in so far as it relates to s 19 of the Act; substitutes its decision that the respondent is liable to pay compensation to the applicant under s 19 of the Act for major depressive disorder; and remits the matter to the respondent.
Application [2013/4405]
The Tribunal sets aside the decision under review in so far as it relates to s 14 of the Act; substitutes its decision that the respondent is liable, under s 14 of the Act, to pay compensation to the applicant for her major depressive disorder in accordance with the Act; and remits the matter to the respondent.
Applications [2012/5568] and [2013/4405]
In accordance with s 67 of the Act, the respondent is to pay the other party’s costs of and incidental to these proceedings, to be taxed by the Registrar in the absence of an agreement.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member......................Sgd...............................................
Associate
Dated 2 May 2014
Dates of hearing 9 and 10 April 2014 Counsel for the Applicant Matthew Black Solicitor for the Applicant Phil Nolan, Maurice Blackburn Lawyers Counsel for the Respondent Charles Clark Solicitor for the Respondent James McIntyre, DLA Piper Australia
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