Vicki Merlo and Comcare
[2012] AATA 66
•7 February 2012
[2012] AATA 66
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0425
2010/4951
2010/53632010/4954
Re
Vicki Merlo
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Dr G J Maynard, Brigadier (Rtd), MemberDate 7 February 2012 Place Brisbane The Tribunal affirms the decisions under review
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Senior Member
CATCHWORDS
COMPENSATION – incapacity benefits – related psychiatric condition – history of depression and poor health – failure to disclose – decision affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dr G J Maynard, Brigadier (Rtd), Member
Ms Vicki Merlo says she suffers from an upper limb condition and a related psychiatric condition that arise out of her work as an administrative officer on an army base. Comcare determined in October 2009 that Ms Merlo suffered from lateral right epicondylitis for the purposes of the Safety Rehabilitation and Compensation Act 1988 but it now says there is no present entitlement to pay incapacity benefits in respect of the applicant’s arm, and it does not accept liability for the psychiatric condition. Ms Merlo has asked the Tribunal to reconsider those reviewable decisions.
We are satisfied the applicant does not have any present entitlement to benefits under the Act in respect of her upper limb condition. We also do not accept that the applicant’s psychiatric condition is related to her work. We have therefore decided affirm the four decisions under review. We explain our reasons below.
THE APPLICANT’S HISTORY
Ms Merlo worked as a registry clerk at an army base. Her job involved printing out signals and distributing them to staff members within the building. She began work there in 1999. The applicant’s job did not appear to involve heavy lifting or repetition apart from some keyboard work.
It appears the applicant has experienced a number of health problems over time, including headaches, fainting spells, backache, stomach pain, upper limb problems, pelvic pain, depression and restless leg syndrome. She took time off work on her doctor’s advice between May and July 2009. She made a claim for compensation in July 2009 in respect of tendonitis and depression that she says is work-related.
The applicant was asked questions during cross-examination about her home life. It seems clear that she has experienced a number of stressors in the home, including financial pressures and a distressing incident involving her son. Those matters were also discussed in the evidence of Dr Chung, a consultant psychiatrist.
Ms Merlo’s principal medical witness was Dr Blum, her general practitioner. Dr Blum provided the diagnoses upon which Ms Merlo relies. He says the upper limb condition was caused by work, and the depression condition was brought on by the pain associated with the upper limb condition (although Dr Blum acknowledged factors at home may also have contributed to the onset of the psychiatric condition). Ms Merlo also saw several specialist medical practitioners for the purposes of these proceedings, including Dr Chung, whom we have already mentioned, and Drs Cutbush and Dodd, who are both orthopaedic surgeons. We were also provided with reports from Dr Macauley, a rheumatologist.
The respondent also obtained records under summons from the applicant’s treating psychologist, her general practitioner and the Gold Coast hospital. Those records confirm the applicant has a long history of depression and poor health. It seems the records were not made available to Dr Dodd, who saw the applicant at the request of her former solicitor. It was also apparent from comments the applicant made during cross-examination that she did not disclose details of her prior health problems – especially her psychiatric history and the problems at home – to the doctors who saw her at the request of the respondent.
THE MEDICAL EVIDENCE
We accept the medical evidence establishes the applicant did suffer from a work –related condition, namely lateral epicondylitis in her right arm. We note Dr Dodd opined that the applicant’s symptoms were persisting when he completed his report in May 2011. We prefer the evidence of Dr Cutbush (which is consistent with the evidence of Dr Macauley) to the effect that the symptoms are likely to be minor if they persist at all. There is no evidence that the ongoing symptoms, such as they are, actually impair the applicant. We note Dr Cutbush was provided with a detailed account of the applicant’s medical history. We think he was in a superior position to make a judgement given the applicant’s selective reporting of her history and symptoms. In those circumstances, we are satisfied there is no basis for claiming payments in respect of incapacity in any of the periods under review.
We do not think any of the specialist medical evidence establishes there is a link between the applicant’s psychiatric condition, however it is described, and her upper limb condition or her workplace. We rely in particular on the opinion of Dr Chung, who gave evidence at the hearing. Dr Chung had originally diagnosed the applicant as suffering from an adjustment disorder but he changed his mind after reviewing the material from the Gold Coast hospital in particular. As we have explained, that material recorded a lengthy history of psychiatric problems and referred to the stressors at home in particular. Dr Chung said those records made it clear the applicant’s psychiatric problems manifested themselves long before she had any upper limb problems. He said there was no evidence that events in her workplace made any contribution to the onset or course of her psychiatric symptoms, which he characterised as major depression.
CONCLUSION
The preponderance of the medical evidence simply does not support the applicant’s claims. The reviewable decisions must therefore be affirmed.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member. ............................[Sgd]............................................
Associate
Dated 7 February 2012
Date(s) of hearing 8 – 9 December 2011 Applicant Self-represented Counsel for the Respondent Mr Harding
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