Yeomans v Walker Australia Pty Ltd [2001] SAWCT 40

4 The worker asserted that the depression was a sequelae of the earlier accepted injury to the left arm, neck and shoulder, and that s 30A has no application to the circumstances of her claim. It was also asserted, in the alternative, that the claim meets the criteria of s 30A and that there is a continuing incapacity for work.

5 Much of the relevant documentary material including medical reports, statements and claims documentation, is contained in the Trial Book, tendered as Exhibit R1. In addition, there were various other exhibits including correspondence between some of the medical witnesses, medical notes, information as to the worker's absences from work, video footage depicting the worker from time to time and associated surveillance reports.

6 The worker gave oral evidence. Mr Harms, counsel for the worker, also called Dr Koukourou, the worker's general practitioner, Dr Cullum, her treating occupational physician, Dr Clothier, an occupational physician to whom she was referred by Dr Cullum, and Dr Schembri her treating psychiatrist.

7 Mr Swan, counsel for the respondent, called the respondent's Workers Compensation Administrator, Ms Stevenson, Dr Fewings and Professor Burns, two neurologists who have examined the worker for medico-legal purposes, Dr Blakemore, a psychiatrist who examined her for these proceedings, Dr Randall Sach, a surgeon specialising in hand injuries, and Dr Thoo an occupational physician retained by the respondent to examine its employees in conjunction with rehabilitation and return to work initiatives.

8 It was not disputed that the worker sustained various injuries to her left and right arm between 1996 and 1999. The following details concerning those injuries are uncontentious. The worker, now aged 32, commenced employment with the respondent in 1995 and was employed on the bendline where her duties involved setting and operating a manual bending machine, the purpose of which was to bend sections of steel pipe. She was required to take a piece of pipe from a stillage, place the pipe onto the shoe of the machine, hold it in place and then operate the machine by the application of a foot pedal. The worker then removed the section of bent pipe from the machine. She also operated an up-cut saw to cut the pipe and used a swaging machine to modify the end of the pipe. When those steps were completed she placed the pipe in a stillage. This job involved the use of both hands and a quota applied to its performance.

9 In about 1996, after performing this work for about 12 months, the worker developed pain and discomfort in her left wrist and lower arm. After some limited time off work the worker returned to restricted duties within that department.

10 In early 1997 she was given a clearance to return to normal duties operating the bending machine and at about that time she transferred from afternoon shift to day shift and was engaged in the sub-assembly department operating a spotwelding machine. This involved placing an item for spotwelding in an automatic spotwelding machine. She also operated a TIG welder which involved holding a pipe in a jig and using a hand held spotwelder. When she was performing these duties she felt pain in her left elbow. She made a claim for compensation in relation to this injury by claim form dated 14 July 1997 and the claim was accepted on 18 July 1997.

11 In December 1997 she was still performing modified duties. At about this time she also experienced pain in the right lower arm and was incapacitated for work for several days. She returned to work on a modified basis for three hours per day to be increased over time to an eight hour day. Whilst still working on this modified basis the worker also experienced pain in the left shoulder when operating another machine in the press and extrusions section where she had to hold a pipe in a press and then push a button for the press to be activated to form a particular shape on the pipe. She made a claim in relation to this injury by notice dated 27 February 1998 and that claim was also accepted.

12 Thereafter the worker continued to perform modified duties for restricted hours. Her duties included inspection work and light press operating which was generally not as repetitive or fast as her pre-1996 duties. From time to time she had days off work for pain in the arm in relation to which she presented medical certificates and was paid compensation.

13 In about February 1999 the worker made a further claim in relation to an aggravation of her left arm. This claim was accepted by determination dated 23 February 1999. The worker resumed permanent alternate duties on 15 February 1999. In March 1999 she received a warning for lateness because she was arriving at work later than the appointed start time of 7.00 am.

14 In addition to her compensation claims for arm, elbow and shoulder pain she also made a claim for compensation in relation to depression. This occurred on 13 July 1998. Against the background of these earlier arm injuries she presented to Dr Koukourou in February 1998 complaining of depression. He referred her to a psychologist who treated her for a time. On 25 September 1998 the claim was accepted as a sequelae to her physical injuries but was limited to the payment of certain medical expenses. (TB Vol 1 at 18)

15 It is not disputed that in early June 1999 the worker attended a Rehabilitation meeting. This meeting was also attended by the respondent's occupational nurse, the worker's rehabilitation co-ordinator, her supervisor, her husband, Dr Thoo and Dr Cullum. Various matters were discussed. These included her lateness for work which occurred a couple of days a week (tr 51) and was due to her practice of using heat packs to relieve stiffness in her arm before driving to work. There was discussion about her making up time and providing a certificate from Dr Cullum. The provision of taxi vouchers for her to get to work on such occasions was also discussed without resolution. The worker also sought a home assessment to determine her need for certain appliances to assist her in coping with her injuries. There was also a discussion about her return to work progress. Importantly, it was resolved that she would return to an 8-hour day performing camban scanning, stillage counts, safety observations and Rochester inspections.

16 Following that meeting the worker continued to build up her hours to 8 per day but continued to have single days off work. The last such day was Friday 18 June 1999. On 21 June 1999 she attended the office of Ms Stevenson to present the certificate for the preceding Friday, when Dr Koukourou had certified her unfit for work due to an inability to sleep because of arm pain. A discussion ensued between the worker and Ms Stevenson the details of which I will outline later in these reasons.

17 Later that day the worker consulted Dr Koukourou who certified her unfit for work as a result of depression, the cause of which was stated by the worker to be "work situation". The worker has not returned to work since that time and has continued to be certified unfit for work for depression. On 25 June 1999 she lodged the subject claim for compensation for depression which was rejected by determination dated 17 September 1999.

18 Against that background the respondent does not dispute that prior to June 1999 the worker did suffer a depressive condition for a time. However Mr Swan submitted that the evidence supports a finding that the worker had recovered from any depression which was a sequelae of the physical condition and that, in any event, the physical condition itself had also recovered by June 1999. Such recovery was said to be supported by the worker's evidence of ongoing improvement in her symptoms whilst undertaking restricted duties, and what was said to be the preponderance of the medical evidence that there was no significant organic pathology, and that it was expected that the arm condition would improve with rest or reduced activities. The evidence of Dr Blakemore, of an almost resolved depressive illness at his examination of the worker in May 1999, was said to support the recovery from depression associated with the physical injury. As indicated earlier, Mr Swan submitted that the probable cause of the onset of the depression in July 1999 was the administrative dealings with Ms Stevenson which were reasonable and conducted in a reasonable manner.

19 The significance of the events of 21 June 1999 will emerge once findings of fact have been made concerning the worker's physical and psychological condition during 1998 and up to June 1999 and concerning the events of that particular day.

20 The primary evidence of those matters came from the worker. She struck me as a tense individual uncomfortable about giving evidence. However I consider that she was doing her best to assist the Tribunal. She did exaggerate her symptoms to some extent; in particular she had a tendency to hold her left arm stiffly across her body as if in an invisible sling. She was asked about this in the context that this stance was also observable on a variable basis on the video footage. Her response was that she sometimes held her arm in that position if it was aching but that the posture had become a habit (tr 307).

21 Notwithstanding this unusual posture, I did not find any significant inconsistency between her presentation in the witness box, the evidence she gave about the extent of her pain and the limitations upon her activities, and the video footage of her going about the business of shopping, walking and eating. Furthermore, in the context of her presentation and the general quality of her evidence, her slowness in agreeing that she had driven to Karoonda twice, a drive of some two and a half hours, was more consistent with a memory difficulty than with a deliberate attempt to evade the topic. I was satisfied with her explanation that she could drive for that period of time but experienced discomfort afterwards. Overall I accept her evidence as accurate. Any exaggeration in her presentation I would attribute to her desire to emphasise the effect of the work injury on her physical functioning; a not uncommon feature amongst injured litigants.

22 As to the worker's physical complaints leading up to June 1999 I accept her evidence as to the nature of the pain, discomfort, stiffness and weakness in the left arm which she experienced from 1996 to June 1999. I accept her evidence that these symptoms were initially caused by the repetitive movements which she was required to perform as part of her duties operating the bend press and subsequently in the sub-assembly department. I accept that she continued to experience pain and limitation of movement since 1996 notwithstanding the clearance to return to normal duties in early 1997.

23 On the basis of the worker's history of these symptoms and their onset, and Dr Koukourou's findings on examination, he diagnosed her condition as left lateral epicondylitis and soft tissue injuries of the left forearm and left trapezius muscle. (tr 89; TB Vol 2 at 224). Dr Thoo gave evidence that when he saw the worker in 1997 he thought she had a genuine physical problem caused by her work. (tr 192). When he examined her in December 1998 he noted swelling of the wrist consistent with a soft tissue injury. At this point he also noted abnormal pain behaviour in the sense that the level of disability and level of pain of which she was complaining was inconsistent with the nature of the physical complaints. This he put down to the worker's desire to impress him as to the high level of disability from which she believed she was suffering. (tr 200)

24 When Dr Thoo saw the worker in December 1998 he continued to find evidence of tenderness over the epicondyle consistent with epicondylitis. (tr 184a) and having noted these symptoms and the wrist tenderness he made an assessment of permanent disability of the arm. He continues to hold the view that the worker has a permanent disability of the left arm.

25 I accept the evidence of Drs Koukourou and Thoo and find that, throughout 1997, 1998 and the first half of 1999, the worker continued to suffer from the symptoms of a soft tissue injury of the wrist and forearm together with epicondylitis of the left elbow. I also accept Dr Clothier's evidence of chronic left arm pain as at July 1999 to the extent that such evidence was consistent with that of Drs Koukourou and Thoo, but I reject Dr Clother's diagnosis of neurogenic pain.

26 Dr Sach's evidence as to the initial mechanism of injury was not inconsistent with that of Drs Koukourou and Thoo. He considered that the worker may well have suffered initially from a physical injury in the nature of a strain or tendonitis.

27 As to Dr Cullum, he first saw the worker in early 1999. His diagnosis was that the worker was suffering from a posterior interosseous nerve lesion and in particular a partial conduction block producing a decrease in motor power, the effects of which were intermittent. The posterior interosseous nerve is a motor nerve which controls finger, thumb and sometimes wrist extension. I reject this diagnosis which was based on Dr Cullum's clinical findings and the results of nerve conduction tests conducted in March and September 1999.

28 I prefer the evidence of Professor Burns that a posterior interosseous nerve lesion, if present at the time diagnosed by Dr Cullum, would have produced an identifiable weakness in extension of the specific muscles supplied by that particular nerve, whereas that finding was not present in the worker. I accept his evidence that one cannot have confidence in Dr Cullum's diagnosis because it was based on a clinical finding of diffuse forearm discomfort, pain and weakness and that the reduced recruitment noted on the nerve conduction tests was not a sufficient basis upon which to make the diagnosis. I also accept Dr Fewings' evidence that on examination and testing, the worker did not have any neurological weakness and that she did not have any neurological lesion.

29 I find that the epicondylitis and wrist strain continued to produce symptoms of pain, discomfort and stiffness and resulted in a restriction of movement in the left arm in the first half of 1999. The worker was partially incapacitated for work but she was able to attend work throughout this time. She was given modified duties and restricted hours pursuant to various return to work programs where her performance was being monitored. That work involved reading bar codes, doing stillage counts, some light press work and some safety inspection (tr 219 - 220). Although in mid 1999 she was coping with the duties, the facts do not support a finding that she had recovered to her pre-injury situation. I refer not only to her evidence but to the rehabilitation program dated 17 June 1999 (TB Vol 2 at 189) which set as its goal the upgrading of her hours of duties but imposed the following restriction "To perform approved duties only. Work at own pace. Rotate every hour".

30 As at June 1999 she continued to complain of pain in the elbow, lower arm and the inside of the arm (tr 55), was late for work on occasions because she needed to apply heat to relieve stiffness in the arm and was having occasional single days off work, the last of which was on 18 June 1999.

31 In addition to the physical pain and limitation of movement, I find that from about March 1998, the worker also suffered from depression. This condition may well have developed over time but by March 1998 it was sufficiently severe for Dr Koukourou to prescribe antidepressants and to refer her to a psychologist, Lesley Bretag, for psychotherapy.

32 I accept Dr Koukourou's evidence that the depression was a sequelae to the pain and restrictions associated with her left arm injury. I also accept that from about March 1998 the worker's perception that other workers were critical of her inability to perform at an optimum level and her fear of further injury was also feeding into her mental state.

33 I find that from at least March 1998 the depression influenced her response to the physical injury. Her mental state accentuated her ongoing complaints of diffuse pain and limitation of movement. This is the explanation for her presentation to Dr Thoo in late 1998.

34 Dr Koukourou's diagnosis of depression was also supported by Dr Blakemore's opinion, formed on examination of the worker on 19 May 1999. He concluded that, up to the time of that examination, she had been suffering from a major depressive illness resulting from her work injury, her pain, and incapacity (TB Vol 2 at 403). I accept Dr Blakemore's opinion that, by that stage, she was not incapacitated for work solely as a result of this psychological condition. I also accept that, at the time of the examination on 19 May 1999, the worker's depression was improving. This was also the opinion of Ms Quinton, her treating psychologist (TB Vol 2 at 239), and Dr Schembri did not disagree with Dr Blakemore's analysis of the situation as at May 1999.

35 However I find that following that appointment in May 1999 her condition worsened. The triggers for that worsening were the failure of the cortisone injections (which coincidentally she had undergone earlier on 19 May 1999 and about which she spoke to Dr Blakemore quite optimistically), and her anxiety that the change in her duties from predominantly observation to light process work, brought about as a result of the rehabilitation meeting of early June 1999, would result in an increase in painful symptoms in the left arm. The prospect of such a change in duties having been a significant focus of concern when the worker saw Dr Blakemore in May 1999 (TB Vol 2 at 399 - 402; tr 346). The significance of the failure of the cortisone injections is also referred to in Ms Quinton's report of 14 July 1999 (TB Vol 2 at 238)

36 This worsening of her symptoms in May and June 1999 is evidenced by her complaints at that time and the certificates for depression and painful arm issued by Dr Koukourou on 20 and 21 May, 3 and 15 June 1999, and Dr Davidovs' certificate on 18 June 1999.

37 Thus in the period leading up to 21 June 1999 the worker continued to be partially incapacitated for work and had single days of total incapacity for work as a result of her physical condition and a worsening depression which was a psychological sequelae of that condition.

38 I turn to the events of 21 June 1999; on that day there was a discussion with Ms Stevenson. I find that the discussion took place in the morning when the worker arrived at work and presented a certificate for absence on the preceding working day (18 June 1999). I accept that the record made by Ms Stevenson on the day of the discussion (TB Vol 1 at 30) is an accurate record of the topics discussed and general tenor of the conversation. In particular the worker was asked to give an explanation of Dr Koukourou's certification of depression and painful arm. The worker explained that she becomes upset when having to deal with the pain. The worker's attention was drawn to Dr Blakemore's earlier opinion that she did not need time off work for depression. She was advised of the earlier acceptance of a claim for depression limited to medical expenses only. The worker was advised that, as a general practitioner, Dr Koukourou was "not qualified to assess her as being incapacitated for work in relation to her depression". (TB Vol 1 at 30) She was asked to explain why she commonly required days off after a weekend. She was asked about her recent case conference and Ms Stevenson queried the worker's understanding of that meeting that she was allowed to arrive later than 7.00 am and could make up the time if she had a certificate from Dr Cullum.

39 Following the meeting the worker completed her shift but she became increasingly upset as the day progressed. After work she went to see Dr Koukourou. She complained to him that she was very upset and gave him a history of being given "a hard time at work this morning" (TB Vol 2 at 228). He diagnosed depression and certified her unfit for work.

40 I find that the meeting with Ms Stevenson triggered a worsening of her depressive condition. I reject Dr Blakemore's evidence as to the significance of the meeting. It did not cause a discrete and separate episode of depression. To the contrary, it aggravated the depressive component of the worker's already existing disability and resulted in a total incapacity for work from that time.

41 It is in the context of the findings about the meeting with Ms Stevenson that the application of s 30A is said to arise. However the incapacitating disability here was not solely of a psychiatric nature. In my view it was not therefore subject to the stringent requirements of s 30A. The worker has suffered from a physical condition with a psychological complication in the nature of a depressive condition since 1998. In May and early June 1999 that condition became more marked culminating in a total incapacity for work following the 21 June 1999 meeting. In those circumstances section 30A does not operate to isolate the psychological component of the condition and subject it to a different test of compensability than the consequences of the physical injury. (Arrowcrest Group Pty Ltd v Nguyen Print [2000] SAWCT 121)

42 I would also add the following conclusion as a matter of caution. Even if it could be said that s 30A does apply to require the worker to establish that employment was a substantial cause of the depressive condition which totally incapacitated her from 21 June 1999, I am satisfied that the worker has discharged the onus that the depressive condition did not arise wholly or predominantly from reasonable administrative action taken in a reasonable manner by the respondent in connection with her employment (s 30A(b)(iii)) or reasonable action taken in a reasonable manner under the Act affecting the worker (s 30A(b)(iv)). In parenthesis I would add that in the circumstances of this case, the latter of those two alternative provisions is more apposite to the actions of Ms Stevenson.

43 I reach the above alternative conclusion for two reasons; firstly, although it was reasonable for Ms Stevenson to discuss aspects of the worker's claim with her, the provision of inaccurate information by a person with authority to speak on behalf of the respondent about the worker's claim, can hardly be regarded as reasonable action taken in a reasonable manner under the Act. I refer in particular to the view which Ms Stevenson conveyed to the worker as evidenced in her notes (TB Vol 1 at 30) and which she repeated when she gave her evidence (tr 369) about Dr Koukourou, namely "the doctor is not, I guess under the Act, able to diagnose or write certificates about depression" (tr 369). This was an unreasonable statement not only because it was legally incorrect, there being no provision in the Act which limits the ability of a legally qualified medical practitioner to certify certain types of disabilities, but also because an objective observer would draw the conclusion that the statement was designed to deter the worker from exercising her rights under the Act.

44 Secondly, and alternatively, even if the actions of Ms Stevenson can be said to be reasonable, the disability in question did not arise wholly or predominantly from that action. The commencement of a total incapacity for work at that point in time must be considered in the context of all that had occurred before that date. This meeting was only the trigger for the onset of a total incapacity for work; against the background of the findings of an ongoing physical injury with a depressive component. The depressive condition was already symptomatic. Accordingly, the events of 21 June 1999 cannot be considered in isolation. The worker's response to that meeting was informed and contributed to by all that had preceded it. When considering the cause of the incapacity for work certified on that day, it does not accord with common sense to dissect the disability and to attribute it only to the last contributing event. (See WorkCover Corporation v Sherriff Unreported Supreme Court of SA S5831; FAI Workers Compensation (SA) Pty Ltd (C S Brooks Canada Inc/Sheridan Actil) v Kazimierz Noga Print JD42/1999)

45 The remaining issue is the nature and duration of the consequent incapacity for work after 21 June 1999. The preponderance of medical evidence is that the worker was totally incapacitated for some time after 21 June 1999 predominantly as a result of the operative psychological factors.

46 There was a difference of opinion between Drs Blakemore and Schembri as to the nature of the operative psychological condition. Whereas Dr Blakemore said that the worker suffered only from depression, Dr Schembri's evidence was that, at least from the time he examined the worker in October 1999, she suffered from a combination of depression and somotoform pain disorder which he described as a conversion mechanism where psychological factors aggravate the perception of pain (tr 236 - 237). He based that secondary diagnosis on the fact that when he examined the worker in November 1999 she held her arm stiffly across her body. I think that on balance, there has been a conversion mechanism operating in the worker's presentation. Whether or not it can be formally diagnosed as somatoform pain disorder does not really matter. For a considerable period of time the worker limited the use of her left arm as an unconscious protective measure and she has continued to do so as a habit. This behaviour has resulted in certain physical consequences which were described by Dr Sach following his examination of her in September 1999. The non-use of her arm has exacerbated the original physical strain by bringing about secondary changes such as tightness of the joint capsules, wasting, pain on extension and dysfunction (Tr 122) which together with her diffuse pain and depression have contributed to her incapacity for work.

47 As to the duration of her incapacity for work, the worker gave evidence of a resolving physical and psychological condition. When Dr Blakemore examined the worker on 28 January 2000 he formed the view that she had recovered from her depression. Dr Schembri thought the worker's depression was resolving when he saw her in November 1999 and that by the time he saw her in April 2000, from a psychiatric perspective, she was fit for alternative lighter duties "given the right environment and approach" (TB Vol 2 at 346). He explained this further in his evidence, expressing the view that as a result of her past dealings with the respondent, the worker regards the respondent's premises as a hostile environment and that a return to that place may result in a further episode of depression. This was also the view expressed by Dr Koukourou and was not the subject of disagreement by Dr Blakemore. I accept Dr Schembri's evidence as to the potential for further episodes of depression.

48 I find that, given the nature of her depressive condition, there is a likelihood that a return to employment at the respondent's premises will trigger an exacerbation of the depressive condition. Such risk of recurrence constitutes a partial incapacity for work. In addition she remains unfit for repetitive production work and will require a graduated return to such work.

49 I find that the worker was totally incapacitated from 22 June 1999 until 28 January 2000 and from that date she has been and is now partially incapacitated for work.

50 I overturn the determination of 17 September 1999 and substitute a determination that the worker sustained a compensable disability resulting in incapacity for work for the reasons and on the basis described above. I will hear the parties as to the formal order to be made and in relation to any ancillary matter.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.