Obst and Australian Postal Corporation [2010] AATA 53 (25 January 2010)

Last Updated: 29 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos 2007/3910, 2007/5834

GENERAL ADMINISTRATIVE DIVISION		) & 2008/5504
	Re		REBECCA LOUISE OBST

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Senior Member L Hastwell Professor P L Reilly AO (Member)

Date 25 January 2010

Place Adelaide

Decision

The Tribunal sets aside the decisions under review and in substitution decides that: The decision of the 20 July 2006 in which APC ceased liability pursuant to ss 16 and 19 of the SRC Act with respect to Ms Obst’s ankle injury is set aside.  The Tribunal finds that liability was ongoing. The Tribunal sets aside the decision of 22 November 2007 with respect to Ms Obst’s claim that APC is liable in relation to Complex Region Pain Syndrome and finds that liability for her ankle injury should extend to liability for the subsequent development of CRPS. The Tribunal sets aside the decision of 30 September 2008 that Ms Obst did not have a permanent impairment of her left ankle and substitutes the decision that Ms Obst does have a permanent impairment of her left ankle arising as a result of the original ankle injury and its sequelae and that her impairment is 11 percent under the relevant Comcare tables. The Tribunal sets aside the decision of 20 July 2007 that the APC was not liable with respect to Ms Obst’s claim for psychological injury for the period 28 November 2006 and 12 March 2007 and finds that the APC is liable with respect to the psychological injury of adjustment disorder with depressed mood that she suffered during that period. The Tribunal finds that it has no jurisdiction to deal with any psychological condition that Ms Obst suffered after she was certified fit to return to work by her medical practitioner as of 12 March 2007.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS

COMPENSATION – ankle injury – liability accepted then ceased – decision to cease liability set aside – permanent impairment considered – duration of impairment and likelihood of improvement – attempts at rehabilitation and treatment – ongoing limitation in movement and disability – permanent impairment established – decision set aside

COMPENSATION – Complex Regional Pain Syndrome – sequellae to accepted condition of ankle injury – criteria for diagnosis of Complex Regional Pain Syndrome considered – Comcare Guide criteria to be used for assessment of permanent impairment – pain specialists agree initial diagnosis of Complex Regional Pain Syndrome not appropriately diagnosed by use of Comcare Guide – liability established – decision set aside

COMPENSATION – psychological disorder – adjustment disorder with depressed mood – factors giving rise to psychological condition – ankle injury – pain and failure to recover within expected timeline – workplace issues upon return to work with modified duties – pre-existing vulnerability – existence of other stressors considered – work related issues materially contributed to onset of psychological disorder

JURISDICTION – psychological disorder – adjustment disorder – depression – second episode following shortly after resolution of prior period of adjustment disorder – whether there is a reviewable decision for the Tribunal to consider – consideration of reviewable decision – claim lodged prior to onset of second episode – did not review second episode – no jurisdiction – subject to fresh claim

Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 7, 9, 10, 14, 16, 19, 24, 27, 28
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84
Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795
Comcare v Sahu-Khan [2007] FCA 15

REASONS FOR DECISION

25 January 2010

Senior Member L Hastwell Professor P L Reilly AO (Member)

1. Rebecca Obst is an employee of the Australian Postal Corporation (APC). The Tribunal has been asked to review a number of decisions of the APC that have either ceased or rejected liability for claims by Ms Obst.

HISTORY OF CLAIMS

2. Ms Obst’s first claim for compensation was made on 13 January 2006 (T8) and arose out of an ankle injury sustained by her in the course of her employment as a postal delivery officer with APC in 2005. That claim was accepted in January 2006 and then amended on 28 February 2006 to include “sinus tarsi syndrome, left ankle”.
3. On 5 March 2007, a decision was made to cease present liability for that injury under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) (T47).
4. Ms Obst’s second claim was for a psychological injury, namely an adjustment disorder with depressed mood as a sequelae to her original ankle injury. That claim was received by Ms Obst’s employer on 15 January 2007 (T36) and rejected by the APC claims manager on 5 March 2007 (T47).
5. A reconsideration of the decision to cease present liability with respect to the ankle injury and to reject the application for compensation for a psychological injury was made by a senior claims manager of the APC on 20 July 2007. The reconsideration affirmed the original determination. It was forwarded to Ms Obst’s solicitor on the same date (T53). Ms Obst seeks review of both decisions by this Tribunal.
6. By letter dated 15 August 2007 Ms Obst, through her solicitors, sought an extension of liability in relation to her accepted claim for her ankle injury to include complex regional pain syndrome (CRPS) as a sequelae to the original ankle injury. APC denied liability for CRPS (T61) and, upon reconsideration, by a senior claims officer, that decision was affirmed on 22 November 2007 (T67). Ms Obst seeks a review of that decision to this Tribunal.
7. Ms Obst lodged a further claim on 6 June 2008 in which she sought compensation for permanent impairment pursuant to ss 24 and 27 of the SRC Act, such impairment allegedly arising from her accepted claim of left ankle injury (T71).
8. Liability for this claim was rejected by APC on 23 June 2008 (T72) on the basis that the medical evidence did not indicate that Ms Obst’s medical condition had significantly deteriorated to meet the criteria required for a whole person impairment of 10 percent under the SRC Act.
9. Upon reconsideration by a senior claims officer, that decision was affirmed on 30 September 2008. Ms Obst seeks a review of that decision by this Tribunal.
10. On 6 May 2009, Ms Obst withdrew the claim for review with respect to permanent impairment. The Tribunal then dismissed that application for review. Subsequently, and as a result of evidence given by Dr Bastian, the applicant sought to reinstate that application for review as the application had been dismissed in error. The respondent raised no opposition to this course. The Tribunal therefore, pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975, formally orders that the application for review in Tribunal matter number 2008/5504 be reinstated.

THE LEGISLATIVE SCHEME

11. Ms Obst’s entitlements stand to be assessed under the provisions of the SRC Act.
12. Section 14(1) of the SRC Act provides as follows:

“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.”

13. If the Commonwealth is found to be liable for an injury under s 14 of the SRC Act then there is a liability to compensate the employee under other provisions of the SRC Act.
14. Section 16 of the SRC Act provides for the Commonwealth to pay for the cost of medical treatment in relation to an injury. Section 16(1) provides as follows:

“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.”

15. Section 19 of the SRC Act provides for compensation for injuries resulting in incapacity. It provides a formula for weekly compensation during periods where, as a result of incapacity, an employee either cannot work at all or cannot work at the same level that they previously worked because of the compensable condition.
16. Section 24 provides for payment of compensation for injuries which result in permanent impairment. It provides as follows:

“24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
...”

17. The degree of permanent impairment is assessed by reference to the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide). Section 28(4) of the SRC Act provides that when reviewing an assessment of permanent impairment, the Tribunal is bound by the Comcare Guide. The relevant Comcare Guide to consider in this case is the second edition of the Comcare Guide.
18. In this case there has been no finding as to any degree of permanent impairment as the review officer found that there could be no permanent impairment in relation to an injury for which liability had been refused. Alternatively, the review officer considered that the medical evidence showed that the impairment did not reach the threshold level of 10 percent.
19. Compensation under s 24 of the SRC Act is only payable for impairments which are permanent. Under s 4(1) of the SRC Act, “permanent” is defined as meaning “likely to continue indefinitely”.
20. Section 27 of the SRC Act makes provision for a payment for non-economic loss when an injury has resulted in permanent impairment and compensation is payable under s 24 of the SRC Act.
21. At the time of Ms Obst’s application for compensation for psychological injury and for her ankle injury, the definition of “injury” was as set out in s 4 of the SRC Act in the following terms:

“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

ISSUES

22. The issues to be determined in this case are:
    • Whether Ms Obst should be entitled to continue to receive benefits both by way of payment of medical expenses and/or periodic weekly payments of compensation as a result of the ankle injury sustained in 2005.
    • Whether Ms Obst suffers from the condition of CRPS and if so, whether liability should be accepted for the condition of CRPS.
    • Whether Ms Obst suffers a permanent impairment, as defined by the legislation, arising out of her ankle injury. This will involve a consideration of whether she has a permanent impairment of 10 percent or more arising out of the ankle injury.
    • Whether Ms Obst suffered a compensable psychological injury as a sequelae to her ankle injury, being an adjustment disorder with depressed mood.
    • Whether the Tribunal has the jurisdiction to determine whether the period of depressive illness from which she suffered from mid to late March 2007 until the middle of 2007 is a compensable event and is capable of being dealt with in the context of her claim for psychological injury of January 2007.

BACKGROUND

23. There are a number of non contested facts in this matter which are of relevance and the Tribunal sets them out as follows.
24. At the hearing of the matter, the T documents for each of the applications for review before the Tribunal were received into evidence as Exhibits R1 and R2. The Tribunal will refer to relevant sections of the T documents when setting out some of the non contentious background to this matter.
25. Ms Obst was born on 21 March 1984. She completed her schooling in Darwin and then moved to Adelaide in 2002.
26. Ms Obst commenced work with APC in the transport section in March 2003. In this role she drove a number of vehicles including vans and trucks. She was classified as a permanent part-time employee.
27. In 2005, Ms Obst was prescribed anti-depressant medication after an incident involving her mother who, by all accounts, was psychiatrically unstable at the time.
28. On 19 December 2005, Ms Obst sustained an injury to her left ankle in the course of her employment as a postal delivery officer with APC. She stepped out of a van, half stepped on a gutter and rolled her ankle. The incident report is at T5. She initially took two weeks off work as a result of this injury.
29. Ms Obst reported an aggravation of the injury by way of an increase in the pain in her ankle while walking down stairs on 10 January 2006.
30. X-rays confirmed an inversion injury to her left ankle with no fracture (T7).
31. A claim for compensation was lodged by Ms Obst with respect to her ankle injury on 13 January 2006 (T8) and her employer, after reviewing available medical evidence accepted liability for a “talo-fibular ligament strain, left ankle”. Liability was accepted on 20 January 2006 (T12) for the injury sustained on 19 December 2005.
32. Ms Obst reported a further aggravation of the ankle on 6 February 2006 when she rolled her left ankle once more in the course of her employment (T13). She was seen by a medical practitioner for APC, Dr Jeffrey Graham, the following day who confirmed obvious swelling on the lateral aspect of her left ankle.
33. Ms Obst’s injury was initially treated conservatively. She underwent physiotherapy treatment and she was put on modified duties in the course of her employment.
34. In February 2006 APC, relying on a report from Dr Graham of 24 February 2006 (T15), extended liability for the left ankle injury to include “sinus tarsi syndrome, left ankle” as an accepted condition from 6 February 2006.
35. Ms Flordeliza Tiomico (now known as Flordeliza Honorica), a rehabilitation co-ordinator employed by APC, became involved with Ms Obst’s rehabilitation in February 2006.
36. Dr Graham referred Ms Obst for a steroid injection to the left ankle.
37. A steroid injection was administered to Ms Obst’s left ankle in March 2006. It was incorrectly administered in that anaesthetic was not used and it was a painful procedure. Ms Obst reported that the ankle did not improve.
38. Ms Obst’s ankle condition continued to trouble her. An MRI scan performed on 6 March 2006 showed extensive bone bruising in the anterior talus and talus neck and some bone marrow oedema (T18). Continued physiotherapy was recommended and Ms Obst was referred for orthopaedic assessment.
39. Dr George Dracopoulos, an orthopaedic surgeon, saw Ms Obst in March and April 2006. He diagnosed her as suffering from post-traumatic synovitis and ligament damage to the left ankle and he observed extensive bone bruising in the talus. He related this injury directly to the incident of December 2005 and he did not consider that there were any non-work related injuries or factors involved (T23). He recommended that an arthroscopy be carried out on her ankle. He considered the prognosis, with surgery, was good and he recommended that she cease work until after her surgery.
40. In March 2006 she first consulted with a new general practitioner, Dr Susan Stark. On 11 March 2006 Dr Stark prescribed Zoloft tablets for the treatment of depression. This was the first contact between Ms Obst and Dr Stark who continued as her general practitioner at all relevant times thereafter.
41. Ms Obst underwent surgery on her left ankle on 4 May 2006. Dr Dracopoulos carried out an arthroscopy and debridement of her left ankle. The cartilage was found to be intact with some mild synovitis that had to be cleaned out. At that point Dr Dracopoulos considered the prognosis was good. He recommended intense rehabilitation (T25).
42. On 28 June 2006, Dr Dracopoulos reviewed Ms Obst eight weeks post surgery and he confirmed that she was fit to return to sedentary work duties (T27). He expressed the view that if not required to walk or stand she could work a full day. He considered that on average it takes his patients about two months to recover from this sort of surgery but “Rebecca seems like she is going to be one of those that takes longer”.
43. In late July 2006, APC referred Ms Obst to see Associate Professor Bauze, an orthopaedic surgeon, for another opinion.
44. Ms Obst returned to work for five hours per day on three days a week in early July 2006. She reported further aggravation of her ankle when walking to the train and took one day off in July because of this exacerbation. When APC wrote the letter of referral to Associate Professor Bauze on 25 July 2006 she was working at the dead letter office at the Post Office in Victoria Square in the Adelaide CBD and she was working five hours per day on four days per week doing only seated clerical duties.
45. Initially, when she returned to work at the dead letter office in July 2006, Ms Obst was given some taxi vouchers to get to and from work. Once they ran out, she requested further vouchers through her rehabilitation counsellor, Ms Honorica. This request was made on 14 July 2006. A Mr Dunbar, who was Ms Obst’s case manager at the time, declined to provide more vouchers [transcript page 343].
46. The transport section was able to authorise some further vouchers when she moved there.
47. Associate Professor Bauze saw Ms Obst for the first time on 25 July 2006. This was for the purposes of a medico-legal assessment. She was accompanied at that interview by a woman known as Cristabel Vinall, who described herself to Associate Professor Bauze as “a support person”.
48. In a report to Ms Obst’s employer dated 26 July 2006, Associate Professor Bauze states that Ms Obst had reported to him that at the time that he saw her she was swimming two to three times per week and that her ankle ached and felt insecure. She reported that she still could not drive a manual vehicle or ride a bike. She complained of symptoms of her foot going purple and tingling and sometimes exhibiting burning symptoms inside the ankle and sometimes it felt cold. She continued to experience pain and aching in the ankle. He noted swelling in the ankle and that she walked with a limp.
49. In his report he expressed concerns about Ms Vinall’s attitude at that first meeting, stating that he found her to be “a rather sullen, rather aggressive and angry person who wants to interfere in the interview process”. Nevertheless, he found Ms Obst to present genuinely and he stated that he was “not aware” of any non-work related contributory factors (T29/53-54).
50. His opinion at that time was that Ms Obst continued to suffer from a painful left ankle. He commented as follows: “... the basic cause is a severe sprain of the ankle, possibly the inferior tibiofibula syndesmosis, and the bone bruise of the talus” (T29/53).
51. He also noted that her complaint also had “some of the features of chronic regional pain syndrome”. He expressed the opinion that she was capable of working five hours a day for five days a week in sedentary duties. He considered that she should not drive a manual vehicle or ride a bike and that she should not be walking more than 50 to 100 metres at that point in time.
52. On 29 June 2006, Dr Stark’s notes report that she reviewed whether Ms Obst should still be taking Zoloft which had originally been started in December 2005 by Ms Obst’s former general practitioner after an episode when her mother locked her in her house. Dr Stark’s notes report a stabilisation in Ms Obst’s mood and that Ms Obst had indicated to her that she would like to cease taking that medication “soon”. She and Ms Obst discussed the timing of the cessation of anti-depressant medication. The notes report “best to wait til return to work post workcover injury, as could be stressful”. She prescribed a repeat of the medication (T87).
53. In late July 2006, Ms Obst took an accidental overdose of a medication. She was admitted to the Royal Adelaide Hospital and discharged the next day.
54. A further MRI scan of Ms Obst’s left ankle was carried out in late August 2006 (T30/59). This reported an improvement in the clinical signs in her ankle. Some of the clinical symptoms appeared to have improved or resolved.
55. On 10 August 2006, Dr Stark carried out a further review and considered that Ms Obst could return to her pre-injury hours. Ms Obst returned to work in the workshop area of the transport department around early August 2006. She carried out administrative work within the workshop area.
56. Dr Dracopoulos reviewed Ms Obst on 1 September 2006 and provided a report to her employer on 22 September 2006 (T32/62). In that report he found that Ms Obst had been suffering from “complex regional pain syndrome affecting her left lower limb on top of some post-traumatic synovitis of the ankle”. He recommended that a pain specialist or pain clinic become involved. He commented that the MRI of late August 2006 “showed improved condition of left ankle”.
57. On 11 September 2006, Ms Obst’s workstation was moved from the workshop area into the conference room in the transport department. Her duties remained administrative in nature.
58. Dr Stark’s notes report that on 11 September 2006, Ms Obst reported that she felt bullied by some staff at work and had been moved from the workshop to an “isolated room”. Dr Stark spent 10 minutes on the phone discussing Ms Obst’s feelings of being bullied at work with Ms Obst’s rehabilitation officer, Ms Honorica. There was an indication that Ms Honorica said that she would speak to Ms Obst on the following day. Panadeine Forte was still being prescribed by Dr Stark for Ms Obst’s pain at that time.
59. On 14 September 2006, Dr Stark referred Ms Obst to Dr Quadros, a pain management consultant (T87/344).
60. Ms Obst continued to work on a rehabilitation program. She attended on Beachside Physiotherapy for rehabilitation between June 2006 and September 2006.
61. A report of Ms Marie Thornton, her physiotherapist (T33/63-65) of 22 November 2006, states that by November 2006 Ms Obst had begun gym work and had played the drums “including pedal work”. Physio treatment had ceased on 18 September 2006.
62. Ms Thornton conducted a review in November 2006. She reported that Ms Obst reported a “dull ache anterolaterally in left ankle”, describing her pain as ranging between 4 and 7 on the pain scale. Ms Thornton commented as follows:

“Rebecca is still swimming on alternate days, attends Body Balance classes and is able to exercise on the cross-trainer for approximately 5 minutes at a time. She can walk for around 5 minutes before symptoms worsen. Rebecca has attempted to drive her manual car around the block, and reports increased pain after this.” (T33/64)

63. At that review, Ms Thornton noted objective signs of limitation of movement in the left ankle particularly upon inversion and plantar flexion. Ms Obst’s inversion range was half that of the right ankle and she lacked 30 percent plantar flexion on the damaged ankle. Ms Thornton observed that her gait appeared to have deteriorated since the previous review and she had developed a painful callus on each foot. Ms Thornton recommended referral to a podiatrist and more intense physiotherapy. An ankle brace was recommended. She also suggested referral to a pain clinic.
64. In November 2006, APC decided to reintroduce Ms Obst to driving duties. A Return to Work Plan Stage 10 was prepared by APC (R8/FT9) and established on 27 November 2006. The new plan included that she could perform a “gold mail run” driving an automatic van. She was not required to load or unload the vehicle. Lifting above 1 kg in weight was prohibited. Her substantive hours were to revert back to her pre-injury hours being from 3.30 pm to 8.30 pm five days per week.
65. Ms Obst carried out the gold mail run for the first time on 27 November 2006. On completion of that run she complained of pain and swelling of the left ankle. Her general practitioner, Dr Stark, certified her as being totally unfit for work from 28 November 2006 and thereafter continuing until 12 March 2007.
66. Ms Obst attended upon Dr Stark on 28 November 2006. Dr Stark’s notes report that Ms Obst was not happy with the shift or the hours and that there was a lot of sitting around to do. She reports that Ms Obst reported feeling frustrated and bored and that she was not coping as well emotionally. She felt that she was being watched and scrutinised. She was teary. Dr Stark observed swelling around the lateral malleolus and general soreness across the whole ankle joint. She noted that there was no redness, but that she had a limp. She left a message for the rehabilitation officer, Ms Honorica, to contact her.
67. Thereafter, Ms Honorica stopped making regular contact with Dr Stark and did not return all of her calls.
68. On 21 November 2006, Dr Stark sent a referral to Professor Cherry at the Flinders Medical Centre Pain Unit, having established that Dr Quadros was not taking new referrals (T87/343). There was a considerable delay in the Flinders Medical Centre making an initial appointment for Ms Obst to attend upon that clinic. This was not due to any fault of Ms Obst, but was caused by delays in the public health system.
69. On 4 December 2006, Ms Obst attended upon Dr Stark once more. On that occasion, Dr Stark recorded that Ms Obst was teary and upset easily, that she was not going to the gym as often and she recorded other symptoms that she diagnosed as depression. In her notes she recorded that Ms Obst was having difficulty walking around shops, doing Christmas shopping, riding her bike and playing the drums because her foot could not find a comfortable position. She recorded that Ms Obst was in pain on a daily basis and could not get a comfortable position to sleep and that she felt that she needed time away from work to get herself together again.
70. She noted that Ms Obst’s father was coming over from Canberra for Christmas and that she would like to return with him for a visit. She had Ms Obst fill out the DASS questionnaire and she recorded an extremely severe level of stress on the DASS scale (T87/342).
71. Ms Obst did not return to work with APC after 28 November 2006. Dr Stark certified her unfit to return to work between 28 November and 30 December 2006 on the basis of “left ankle injury, flare up of swelling and pain” (T76/194). On 4 December 2006, Dr Stark assessed Ms Obst as being unfit from 4 to 21 December 2006 on the basis of “psychological stress from chronic pain and restrictions caused by left ankle injury”. She diagnosed her as suffering from an adjustment disorder with depressed mood (T76/195). She continued to certify her as being unfit to return to work on that basis until 12 March 2007.
72. In mid to late 2006, Ms Obst joined a band known as “A Take on Franklin” as their drummer. In approximately September 2006, Ms Obst commenced driving an automatic vehicle again. She swapped her manual Mitsubishi Lancer with the vehicle owned by her friend Cristabel’s father. She commenced driving his yellow Toyota Corona which was automatic.
73. APC commenced covert video surveillance of Ms Obst in late October 2006 and that surveillance continued intermittently over a period of almost two years.
74. At 6.23 pm on 18 December 2006, Ms Obst was observed by video surveillance to be unloading drum cases from the boot of the Toyota vehicle and carrying them into a practice studio. The drum cases were empty at the time. Ms Obst was attending upon a rehearsal of her band.
75. On 23 December 2006, Ms Obst caught the tram to Glenelg in company with Ms Vinall and her father and attended at a hotel. Her father was visiting Adelaide at the time as by then he was residing in Canberra.
76. Ms Obst attended upon Associate Professor Bauze for the purposes of a medical review of her orthopaedic condition on 22 January 2007. Associate Professor Bauze provided APC with a report relating to that consultation (Exhibit R21). Ms Obst was accompanied to the review appointment by Mrs Frances Vinall, the mother of her friend Cristabel. She was unaware that she was under surveillance as she entered and left Associate Professor Bauze’s rooms.
77. In mid January 2007, Ms Cristabel Vinall purchased a blue Toyota Hiace manual van from a mechanic by the name of David Burlison. Mr Burlison had made some improvements to that vehicle during the period that he owned it such that it was easy to change gears without using the clutch. The clutch only had to be used when shifting from neutral into first gear and then when reversing (Exhibit A8).
78. Ms Obst was given a lesson in how to drive that van by Mr Burlison at the time that Ms Vinall purchased the vehicle. This was to show her how to drive the van without using the clutch.
79. In mid January 2007, Dr Stark made contact with Ms Obst’s rehabilitation officer and spent some time on the phone trying to obtain approval for funding for Ms Obst to have some psychological treatment. No approval was forthcoming.
80. In the course of her interview with Associate Professor Bauze on 22 January 2007, Ms Obst did not mention to him that she was about to leave on an interstate holiday. She left on that holiday immediately after leaving his consulting rooms on 22 January 2007. On that date, Ms Obst was wearing an ankle brace.
81. There is further video surveillance of Ms Obst on 22 and 23 January 2007. She left Adelaide and travelled to the Elizabeth Shopping Centre and from there she drove to Mildura as the passenger in the vehicle. She travelled at all times in the vehicle that Ms Cristabel Vinall had purchased from Mr Burlison.
82. On Tuesday, 23 January 2007, she was observed to attend various locations in Mildura, including a service station and shopping centres. She was observed not to wear an ankle brace at the time. She departed Mildura and again was the passenger as the vehicle drove from Mildura to Hay, where she swapped into the driver’s seat. Ms Obst then drove the vehicle from Hay to Wagga, being a distance of approximately 268 kilometres, for a drive time of approximately two hours. In Wagga she replaced the ankle brace on her left ankle. While in Wagga she contacted the local police to say that she believed that her vehicle was being followed.
83. Ms Vinall and Ms Obst then drove from Wagga to Canberra, stopping in Gundagai, where they again observed that their vehicle was being followed by the surveillance vehicle. Ms Obst telephoned the police again to report that they were being followed.
84. Ms Obst stayed with her family in Canberra for two to three days, while Ms Vinall attended a course in Sydney. Ms Vinall then collected her upon the return trip and they travelled back to Adelaide.
85. While in Canberra, Ms Obst telephoned Dr Stark in a distressed state reporting that she had been followed to Canberra. Dr Stark recommended she see a general practitioner in Canberra “for support”.
86. At some time after his consultation with Ms Obst in January 2007, Associate Professor Bauze was shown surveillance reports and surveillance footage by APC and he also had a verbal discussion with a solicitor acting on behalf of APC. He then provided a further report of 1 March 2007 to APC (T46) in which he opined that Ms Obst’s self report of her level of pain and disability and incapacity was inaccurate. He expressed the opinion in this report that that her claimed level of inactivity and incapacity for home duties and at work were unrealistic and he expressed the opinion that she was fit for full-time alternative duties provided to her by APC as described in his earlier report.
87. Ms Obst sought the assistance of a psychologist, Fiona Huppatz, in January 2007. She was then subsequently referred by Dr Stark to a second psychologist, Christopher Wigg. She commenced consultations with him in early February 2007. She was not provided with any funding from APC with respect to her psychological treatment.
88. On 1 March 2007, Dr Stark provided a certificate that Ms Obst could start a graduated return to work on 12 March 2007.
89. On 5 March 2007, Ms Obst’s claim for a psychological injury was rejected and APC notified her that they were ceasing present liability with respect to her ankle injury, pursuant to ss 16 and 19 of the SRC Act. The notification was sent by post. Ms Obst did not take that letter from her letter box and open it until 8 March 2007.
90. On 8 March 2007 Ms Obst was given notice of a proposed Disciplinary Inquiry into “serious breaches on your part of the Australia Post Code of Ethics”. She was suspended from duties pending the outcome of that inquiry. The Notice of Inquiry was served upon her personally when Mr Gigney and Mr Edwards attended at her home premises at Glenelg to give her the Notice of Inquiry. They did not give her prior notice of their intended visit to her home.
91. Ms Denise Isola was appointed by APC to conduct the proposed Disciplinary Inquiry.
92. A Disciplinary Inquiry was convened on 16 March 2007. Ms Obst attended the inquiry with a union representative, Nick Townsend. Ms Obst was not provided with the surveillance footage for her own consideration prior to her attendance at the hearing or at the hearing. She wrote to Ms Isola on the 14 March 2007 requesting some further information about the inquiry (R15/DI2) and in particular wanting a referral to the rule or act or code that limited or determined who she could have accompany her to the enquiry. Ms Isola did not respond in writing but spoke to the union representative, Mr Townsend.
93. Ms Obst requested that she be provided with the surveillance material prior to the Disciplinary Inquiry, but her request was refused.
94. The Disciplinary Inquiry was conducted by Ms Isola. Ms Obst became distressed in the course of the inquiry and walked out. The Disciplinary Inquiry did not continue.
95. Ms Obst then declined to resume the inquiry other than by letter or with a solicitor present. She remains on suspension at the date of the hearing before the AAT and had not, at the time of the hearing, returned to her employment as the terms of resumption of the inquiry cannot be agreed between the parties.
96. On 21 March 2007, Ms Obst was taken to the Flinders Medical Centre and was detained overnight as a result of an alleged attempted suicide. She was discharged from detention and released from the hospital on the morning of 22 March 2007.
97. She was referred by Dr Stark to a psychiatrist, Dr David Coyte, on 22 March 2007 and he saw her for the first time on 3 April 2007. She continues to be his patient.
98. Dr Coyte commenced Ms Obst on anti-depressant medication in mid 2007 and she continues to take that medication. She still sees Dr Coyte.
99. In July 2007, Ms Obst made application to the SA Housing Trust seeking an urgent consideration of accommodation. A report prepared by Dr David Coyte and sent to the SA Housing Trust dated 3 July 2007 reported that she was experiencing severe anxiety, panic attacks, depressed mood and insomnia because of the loud, abusive and assaultative behaviour of her neighbours. His letter did not mention any work related issues (T92/656).
100. Ms Obst attended her first appointment with the Flinders Medical Centre Pain Clinic in October 2007. She was under the care of Professor Cherry who, after having various tests conducted including a psychological assessment of Ms Obst, diagnosed her as suffering from CRPS of the left lower limb with an orthopaedic complaint with respect to her left ankle.
101. Ms Obst was seen by Dr John Bastian for medico-legal purposes in November 2007. He supported the diagnosis of CRPS (Exhibit A10).
102. Associate Professor Bauze does not consider that Ms Obst suffers from CRPS.
103. On 28 November 2007, Ms Obst was seen by Dr Alan Cotton, a psychiatrist who conducted a medico-legal assessment at the request of solicitors acting for APC. Covert surveillance was carried out as she arrived at and then left Dr Cotton’s rooms on that occasion and then at other times during that day. She was seen to use the walking stick as she left Dr Cotton’s rooms but then not on two other occasions when she was observed that day.
104. Covert surveillance showed Ms Obst arriving at the Flinders Medical Centre on 29 November 2007 and she was observed to use a walking stick as she walked to and from the Hydrotherapy Centre. Later in the day she was seen to attend a local bank and a shopping centre and she did not use the walking stick.
105. In August and September 2008, Ms Obst was observed on a number of occasions assisting her friend Cristabel Vinall with a magazine delivery round. She was observed on at least one occasion attending at premises at Mile End on her own to collect the boxes of magazines.

THE HEARING

106. The hearing was conducted over a number of days. Ms Obst gave evidence and called a number of witnesses including medical witnesses, Cristabel Vinall and her mother, Frances Vinall. APC called a number of lay and medical witnesses. The Tribunal was also shown surveillance footage of Ms Obst which was received into evidence (Exhibits R3, R5, R6 and R7). A number of other exhibits were tendered that included a large volume of medical notes relating to Ms Obst (Exhibit R10). Ms Obst had prepared two statements that were received into evidence as Exhibits A2 and A3.
107. Her statements described the pain and disability that she claims to have experienced since her ankle injury and elaborated on issues including the events surrounding her return to driving duties in November 2006, her involvement with the band and the trip to Canberra in early 2007.
108. Ms Obst was 25 years of age at the time of the hearing.
109. Ms Obst, in giving her evidence, corrected an aspect of her statement. She said that she had been first prescribed anti-depressant medication in 2005 by a general practitioner that she saw prior to seeing Dr Stark. She saw this practitioner on only one occasion. She commenced taking this medication because of “issues with my mum”. She thought that she took the medication for three months but subsequently in her evidence she indicated that she may have taken it through to the middle of 2006 and it became apparent from Dr Stark’s evidence that was correct. She resumed taking anti-depressant medication after it was prescribed for her by Dr Coyte in mid 2007 and she continues to take that medication.
110. She explained to the Tribunal the circumstances surrounding the overdose of medication in July 2006. She said that she was in extreme pain because of her ankle and at the time she did not have any pain medication. She was having trouble sleeping so she took a number of sleeping tablets. Her friend, Cristabel Vinall, took her to the Royal Adelaide Hospital. She was kept in hospital overnight.

MS OBST’S RETURN TO WORK IN THE TRANSPORT BRANCH

111. After her brief period working in the dead letter office in July 2006, Ms Obst returned to work in the transport branch in August 2006. She was initially based in the workshop with the mechanics. She told the Tribunal that she enjoyed working there. She was then approached by the receptionist who said that the manager of transport, Mr Dean Edwards, had said that she must move to the conference room and work alone so that her work could be monitored.
112. She said that this made her feel terrible as she was working as hard as she could in the workshop. The receptionist had also told her that Mr Edwards believed that she was not doing enough work.
113. When cross-examined about the shift to the conference room and the fact that in her claim for psychological injury she used 11 September 2006 as the date when she first became depressed and anxious (T36/69), her response was “that was the day I was isolated in the conference room” [transcript page 157].
114. She told the Tribunal that in September 2006, she was still unable to do many of the activities that she had previously enjoyed doing. She could swim and do some light work at the gym and she was doing some work with the physio, but there were things that she had previously enjoyed doing that she could no longer do. She said:

“... I used to run a lot. I used to ride my bike a lot. Even things like yoga, I couldn’t balance on my ankle ...” [transcript page157]

115. She continued to suffer ankle pain and other symptoms in her ankle throughout this time.
116. While sitting in the workshop in transport she had her own desk which was situated near the chief mechanic’s desk and she carried out clerical work for the chief mechanic.
117. She was then moved to the conference room where her desk was, in her estimation, around 50 metres from where she had been situated previously. Management took the view that her work remained the same. However, Ms Obst made it clear in her evidence that her duties did change in that she was now directed to carry out work by the receptionist and no longer did work for the mechanics. She felt she had been accused of not working. Her evidence was that, from that point in time, she felt she was being watched by her superiors.
118. She said that the receptionist, when telling her that she had been directed to work in the conference room, said to her:

“Dean told me to come and tell you that you’re to be moved into the conference room by yourself so that he can watch the amount of work that you do” [transcript page 168]

119. She was distressed by this move and spoke to Dr Stark that same day to whom she reported that she felt “bullied by some staff. Has been moved from workshop to isolated room” (T87/344).
120. Dr Stark telephoned Ms Honorica on 11 September 2006 with respect to this issue. Ms Obst recalls a meeting with Ms Honorica and Mr Edwards the following day, 12 September 2006. She claims that Mr Edwards in that meeting confirmed that she had been put in that room so that her work could be monitored [transcript page 167].
121. Ms Honorica’s notes and her own subsequent evidence to the Tribunal confirmed that a meeting did take place on 12 September 2006 after Ms Honorica had a telephone discussion with Dr Stark and that Ms Honorica was aware that Ms Obst felt bullied and that she felt as though she had been wrongly accused of “not doing any work” by a co-worker [transcript page 346 and T83/293]. Ms Honorica's notes do not record that Mr Edwards was present.
122. Ms Obst remained working in the conference room for two weeks doing work for or under the direction of the receptionist, Ms Masters. She was then moved to do some work with Mr Stockley. She worked for him until she carried out the gold mail run in November 2006. Her hours were not changed until she was asked to commence the gold mail run.
123. Her evidence was that from 11 September 2006 onwards, she felt she was being watched constantly by her superiors and she felt she had been accused of “not working” [transcript page 167]. She said this was because of what the receptionist, Ms Masters, had told her at the time that she had moved to the conference room. She agreed that none of her bosses actually told her she was not working properly, but she described herself as being “already emotionally distressed at that time” [transcript page 167].
124. She believed that while she was using the conference room other staff did not use the room and her understanding was that Mr Edwards directed staff to not use the room as a thoroughfare while she was there although he would go through the room. The receptionist’s office was close to the conference room. Ms Obst’s perception was that the receptionist worked with her door closed.
125. Ms Obst’s perception was also that she could have been located in other offices to do her work and that other computer stations were available. She did not accept the contention put to her in cross-examination that the only reason she was put in the conference room was because that was the only room where a computer was available for her to do her work. She believed she was there so that her work could be monitored. She was never directly told why she had to sit in that particular room [transcript page 32].
126. She was moved to work with Mr Stockley after around 2 weeks when she was given the task of helping him with his overload. She felt much happier working with him and had a good relationship with him. She worked with him until she did the gold mail run on 28 November 2006.
127. She recalls September 2006 as being the time when she began to experience “emotional type feelings or psychological symptoms ... I was upset about the pain in my ankle and the restrictions it caused ... I was also stressed and frustrated because I was not getting better ...”

OTHER EVIDENCE ABOUT THE MOVE TO THE CONFERENCE ROOM

128. Ms Honorica gave evidence to the Tribunal about her involvement with Ms Obst. She was Ms Obst’s rehabilitation counsellor throughout the relevant period. A statement prepared by her was tendered as Exhibit R8. Her case notes and the various Return to Work Plans that she had prepared for Ms Obst were also available to the Tribunal (T82).
129. In her statement that had been prepared for her and signed by her some months prior to the commencement of the hearing she stated: “In September 2006, the Applicant’s workstation was relocated; her work duties remained the same”.
130. Her written statement contained no other reference to what occurred when Ms Obst moved to the conference room in September 2006 or the reasons for her move.
131. Ms Honorica acknowledged in her evidence that she had omitted to include in her statement details of her contact with Ms Obst and with Dr Stark on 11 and 12 September 2006. She was referred to her notes of the phone conversation with both Dr Stark and to her notes of her meeting with Ms Obst on 12 September 2006. She confirmed the accuracy of the notes. She acknowledged that she was made aware that Ms Obst felt bullied and isolated.
132. She explained that her statement had been prepared by a lawyer and it was the legal team who determined what was put in that document.
133. She explained that when she said that Ms Obst’s duties did not change when she was moved to the conference room, she merely meant that they remained in the category of clerical rather than driving duties.
134. Mr Damien Gigney gave evidence for the respondent. He is the manager of operations at the transport branch at APC in Adelaide. He held that position in 2006 when Ms Obst returned to work in the transport branch.
135. His statement, prepared prior to the hearing, was Exhibit R12. He was involved in the relocation of Ms Obst to the conference room in September 2006. His written statement dealt briefly with that issue in the following terms:

“...

23. Around September 2006 , Ms Merrilyn Masters ... advised the Applicant of the relocation back to the administration area. The Applicant was assisting Ms Masters with PT35 data entry (vehicle maintenance record).
24. The location of the Applicant’s workstation was varied in response to computer and office availability.
25. The Applicant’s work location could involve sitting in an office with another occupant or in the conference room at Transport when no other office was available.
26. The conference room is used by staff from time to time; it is not an isolated room.

27. The duties in the workshop and administrative areas were virtually identical.
...”

136. In giving evidence to the Tribunal he acknowledged that Ms Obst was moved to the conference room because of a “work performance issue” and that she was moved to the conference room so that she could be “managed closer” [transcript page 399]. He said that the issue of her work performance was raised by Ms Masters who felt that Ms Obst’s work was not being done to her satisfaction.
137. Mr Gigney was then referred to an email that he had sent to the claims manager who was investigating the claim for psychological injury made by Ms Obst in January 2007.
138. That email was in response to a very specific query from the claims manager as to the reason for Ms Obst being moved to the conference room in September 2006.
139. In his responding email headed ‘”Rebecca Obst Stress Claim”, Mr Gigney stated that “the move in location was for operational reasons”. His email gave no other indications as to the reason for the move. He did not mention the need to monitor her performance or of her alleged unsatisfactory performance.
140. It was put to Mr Gigney in cross-examination that he must have understood that it was important that he was accurate in his email response to the claims manager as an investigation was taking place with respect to her claim for a psychological injury in which 11 September 2006 had been pinpointed as the date of the onset of the injury. He acknowledged that and responded by saying that in his mind he considered an operational issue to include a performance issue.
141. Mr Gigney said that he did not instruct staff to avoid going through the conference room while Ms Obst was working there and furthermore he personally thought the conference room was a preferable environment. He commented in his evidence as follows:

“I sensed she was happier to be in the workshop, out in the – well, the admin area in the workshop, but I didn’t think she was totally upset by being in the conference room because it was, as I said, it’s nearly always occupied by someone. And it’s got the amenities close by; it’s got a female toilet close by, it’s got the photocopier, it’s got the fax machine, closer than it has out in the workshop so all the administrative options are greater as well as your amenities. You’ve got tea and coffee and a fridge right next door, basically, so ...” [transcript page 428]

142. Mr Ronald Edwards, who was the manager of the transport branch, provided a statement to the Tribunal (Exhibit R23) and also gave evidence. He could not recall the reason for Ms Obst being relocated to the conference room in September 2006. He could recall having seen Ms Obst sitting in the conference room and he could recall making comments to her when he walked through the conference room. He could remember telling her to “elevate” her foot.

THE GOLD MAIL RUN – THE EVIDENCE

143. The next key event upon which the examination of Ms Obst’s concentrated was her last day at work, being the day that she drove the gold mail run in late November 2006.
144. Paragraphs 1 to 10 of her statement (Exhibit A3) elaborate on her experience of the first gold mail run.
145. A case conference was held between Ms Obst, Dr Stark and Ms Honorica on 13 November 2006. Notes of that meeting are contained in Ms Honorica’s case notes (T83).
146. Ms Honorica’s notes record that Ms Obst was cleared to do the “gold pick up and delivery without lifting”. The notes of that meeting also record that Ms Honorica was to go with Ms Obst on the first day. The notes were contained in her Return to Work Plan Stage 9.
147. The run was to start on 27 November 2006. There is no evidence that Ms Honorica attended with Ms Obst on the first day of the run.
148. As part of the plan to get Ms Obst back into driving duties, a risk assessment was carried out by Mr T Drew, an exercise physiologist, on 24 November 2006 with him giving Ms Obst some training on how to get in and out of a vehicle. His assessment is at Exhibit R8/FT8. It involved strategies for avoiding pressure on her left foot when getting in and out of the van and how to position her foot while driving the van.
149. A further Return to Work Plan Stage 10 was completed by Ms Honorica on 27 November in which it was recorded that between 28 November 2006 and 9 January 2007 Ms Obst had been cleared to perform restricted duties and a work site assessment had been carried out to provide Ms Obst with assistance in driving vans (Exhibit R8/FT9).
150. In Ms Honorica’s statement (Exhibit R8) she records that Ms Obst was displeased about her change in work hours. Prior to this she had been working 11.30 am until 4.30 pm. The hours were to change to 3.30 pm until 8.30 pm under the new return to work plan that commenced on 27 November 2006.
151. In her statement (Exhibit A2) Ms Obst (at paragraph 52) comments as follows:

“In about late November 2006 I was doing a particular driving run where I had to drive from Mile End to Salisbury, then from Salisbury to town and then back to Mile End. I was not involved in the loading or unloading of the vehicle, which I would have done if it weren’t for my injury. I found the job very frustrating because I could not participate in the loading or unloading. I only did the job for a day or so even though I was supposed to continue doing it until Christmas. I felt continually under observation.”

152. In her evidence to the Tribunal Ms Obst described the gold mail run in the following terms:

“... it was helping the other drivers get the express mail into the mail exchange in time, as it was Christmas time – around Christmas time, we have a lot of mail and a lot of overloads, so I – my duty was to drive a van to Salisbury and collect the gold mail from my peers – drivers, and truck drivers, and take it into town so it would get into the mail exchange in time to be sent to its destination.” [transcript page 31]

153. She explained to the Tribunal that the reason she ceased doing the gold mail run after only one day of doing that run was because of her frustration at not being able to participate in the loading or unloading, but also because her ankle was painful and swollen. Having her foot in the foot well of the vehicle aggravated her ankle condition.
154. She explained her reactions to the gold mail run in the in the following terms:

“... It was extremely depressing, I guess I could say, because I was watching my peers do my job, the job that I loved to do. I couldn’t help, I felt useless, pretty much. I couldn’t help my peers.
Was your job, at that time, to assist with the loading and unloading of parcels or simply to drive the truck?---Simply to drive the automatic van.
I see. And when you’ve given evidence just then that you were unable to help, you’re referring to the unloading and loading of the van, are you?---Yes.
I see. Is that a job you normally would have done if you weren’t injured?---Yes, it is.
Is that the job you had done in the past?---Yes, it is.
I see. You say in your statement that you woke up the next morning and found that your ankle was sore and swollen, and you also say that it had been a very hot day the day before. Did you go and see your general practitioner, Dr Starke, the next day?---I think so, yes.
Do you remember why you went to see her?---I needed her to document my pain in my ankle, the swelling, and I needed to discuss with someone how I was feeling.
Emotional?---Yes.
Do you remember what you told her?---I don’t know, I’m sorry.
Do you think it was something similar to what you’ve just told us as to how you were feeling, watching others do your work for you?---Yes.” [transcript page 33)

155. In her supplementary statement, Ms Obst elaborated on why she had been so distressed by doing the single gold mail run (Exhibit A3). When she arrived back at the depot it was 6.15 pm. There was then nothing further for her to do until her shift finished at 8.30 pm and so she sat idle in the workshop for some hours until her shift finished.
156. After one day she felt that she could not “emotionally and physically” do the job [transcript page 164]. When questioned about her emotions at the time her response was as follows: “I was in pain. I was frustrated. I was watching everyone – everybody else do the duties that I loved doing. My hands were tied, I could not do it.”
157. Ms Obst also repeatedly spoke of a feeling that she was being watched and scrutinised by her superiors from September 2006 onwards. In her mind they had accused her of not working [transcript page 170].
158. She recalls ringing Damien Gigney, her supervisor, on 28 November 2006 and then going straight to see Dr Stark. She said her left ankle was swollen after the day of doing the gold mail run. She admitted telling Dr Stark on that same day that she would prefer to start the run earlier so that she could go home after the gold mail run. She explained to the Tribunal this was because she felt she could be more productive working in the office.
159. In her statement (Exhibit A2) at paragraph 52 she comments:

“I was not involved in the loading or unloading of the vehicle, which I would have done if it weren’t for my injury. I found the job very frustrating because I could not participate in the loading or unloading. I only did the job for a day or so even though I was supposed to continue doing it until Christmas. I felt continually under observation.”

160. She said that she was also in constant pain when doing the gold mail run and in a fairly emotionally unstable state.
161. When asked why she felt she was being watched she claimed that Mr Edwards would make “smartaleck comments” every time he walked past her. When the Tribunal asked about what these comments were she said they were comments such as “So how are you doing today? Are you going to work today?”. She interpreted these comments negatively.
162. Ms Obst was questioned at length with respect to her reasons for ceasing work the day after she did the gold mail run for the first time. She consistently stated that it was a combination of her psychological condition and her ankle problem that culminated in her ceasing work at that time. At the time, the pain in her ankle fluctuated from bad to worse to severe and she found it distressing to watch other people doing her work when she could not do it.
163. When asked why she could not return to work two to three days after her first attempt at this run, she said that she was still in constant pain with her ankle and in an emotionally unstable state.
164. Ms Obst commented that she was still in pain on and off when giving evidence. The pain varies depending on what she does. She denied that there was any other reason why she ceased doing the gold mail run at the time. She acknowledged that she was in a band at the time, but said that there was no connection between that and her ceasing to do the gold mail run.
165. Ms Obst attended Dr Stark again on 30 November 2006 and then on 4 December 2006. On 4 December 2006 she spent some time talking to Dr Stark about her emotional state. Her evidence was that she had been feeling teary and easily upset for two and a half months and that everything that she related to Dr Stark on 4 December 2006 was accurate. She was experiencing nightmares and she could not understand why her ankle was not improving.

DECEMBER 2006 UNTIL JANUARY 2007 – ASSOCIATE PROFESSOR BAUZE AND THE TRIP TO CANBERRA

166. Covert surveillance evidence was taken of Ms Obst on 18 December 2006 where she is observed unloading drum cases from a vehicle and carrying them into premises.
167. When confronted with this surveillance evidence of her carrying drums into premises, Ms Obst acknowledged that the person in the DVD was her and that on the occasion she was attending a band rehearsal at the Fish Shop Studios in Port Adelaide. Her evidence, which was not disputed, was that the drum cases that she was carrying were empty because a fellow band member had arranged to have her drums fixed and she was bringing the cases to rehearsal so that the drums could be put in them.
168. On 21 December 2006, Ms Obst reported to Dr Stark that she was still anxious and not sleeping and that she felt someone was watching her “A person sitting in a dark car” (T87/342).

MS OBST’S INVOLVEMENT IN A BAND

169. In her supplementary statement (Exhibit A3, paragraphs 29-43) Ms Obst provided some information about the band which had not been provided in her initial statement.
170. She joined the band called “A Take on Franklin” in mid to late 2006 a few months after her arthroscopy in 2006 at the request of one of the band members. She has played drums since was 15 years of age and she also enjoys playing the guitar. She agreed that the band prepared and recorded a CD in late 2006 into early 2007.
171. When asked how often she would do band practice, she commented:

“The guys in the band would practice without me. I couldn’t make it a lot of the times. It was a lot less than they liked. I just didn’t show up or when I did, I’d leave significantly early. There was a point in time where they wanted to kick me out of the band because they said I was unstable and couldn’t fulfil my obligations as their drummer.” [transcript page 45]

172. When asked how it made her feel playing in the band, she said it made her feel a bit better “... but then I couldn’t control my thoughts and they’d get sidetracked and I just couldn’t be there any more” [transcript page 45].
173. She said that sometimes she missed band rehearsals and only made it to band practice once a month. She said sometimes the whole band missed rehearsals, for example they had a very long gap when a band member was overseas.
174. The band has recently produced a second CD.
175. She was questioned at length as to what she did with her feet when playing the drums. She remained consistent in explaining that she did not have to use her left ankle in any significant way when playing the drums. She rests her left foot on the high hat pedal and on the drum kit.
176. She described herself as an alternate rock drummer and certainly not “heavy metal in style”. She said that the left leg is used to raise the high hat to make the cymbals tap and if she does have to raise the high hat she does it by lifting her whole leg and hip rather than using her ankle. She demonstrated this to the Tribunal. She is then able to maintain her ankle in a more or less static position. She was adamant that her style of drumming is such that she does not use the high hat in a heavy way, nor does she use it very frequently.
177. When playing with the band she rests her left foot on the high hat cymbal stand as it is comfortable and sometimes she takes it off the pedal and puts it on top of the bass drum. She often does this during practice because her ankle swells.
178. In a 45 minute performance, which is the maximum length of any performance, she said that she may need to move her left leg up to 10 times to create a cymbal effect.
179. She has no facility to play drums at home and enjoys playing the guitar at home alone.
180. She acknowledged that the band has performed publicly on a number of occasions. Their first public performance was in early 2008. She was surprised that it was alleged that she had not mentioned the band activities to Associate Professor Bauze. She said that when she saw Associate Professor Bauze on 22 January 2007, she was confident that she had told him about her involvement with the band. Her evidence on that point was as follows:

“And you’re quite sure you told him on that occasion about your involvement in the band?---Yes, I am.
Why are you so sure?---Because I explained to him that I played the drums, and he would ask me questions about how I play them.
Are you sure you’re not mixing that up with another doctor?---No, I’m positive it was him.” [transcript page 68]

181. She agreed that the band has performed publicly at a number of venues. She named a number of venues, the Squatters Arms, the Exeter, the Joiners Arms, the Rex and the Grace Emily Hotel. She estimated the band had played publicly once or twice every two to three months in the last three years, but that there were periods when they had long breaks between practices and performances.
182. Her evidence was that she has received no payment at all for her involvement with the band. The other members of the band receive payments for performances, but she considered that it was “illegal” for her to do so in her current circumstances.
183. Ms Obst acknowledged that on 23 December 2006 she also went to the Grand Hotel with her father and two friends. When asked whether she considered this to be a social occasion, her answer was that it was a “family gathering”.

CONSULTATION WITH ASSOCIATE PROFESSOR BAUZE AND THE TRIP TO CANBERRA

184. Ms Obst had an appointment to see Associate Professor Bauze for a second time on 22 January 2007.
185. It is common ground that she did not mention to Associate Professor Bauze that immediately after seeing him, she and Ms Vinall were leaving on a trip to Canberra and Sydney.
186. She said that she was in the habit of taking a Panadeine and a Panadol to assist with pain prior to band practices and that on that particular occasion that she was seeing Associate Professor Bauze in January 2007 she can recall that she only took Panadol because she expected him to carry out some movement tests on her ankle.
187. She recalled it as being a hot day when she saw Associate Professor Bauze. She claims to have found the meeting with Associate Professor Bauze distressing and she said that his history of what she told him and as set out in his report at T44/82 was not entirely correct. She took Frances Vinall, Cristabel’s mother, with her to this meeting.
188. She claimed that Associate Professor Bauze “made her feel horrible, he didn’t let me speak, he was too busy telling me I was going to end up in a wheelchair and that I was an invalid”. She commented:

“He did interrupt me on a lot of occasions. He did try and put words into my mouth but I would not let him, and he seemed to become agitated with me and that’s when he started to say the things he did.” [transcript page 70]

189. When asked why she did not put this information about Associate Professor’s Bauze’s attitude towards her in any of her statements provided to the Tribunal, she said it was because it was too upsetting to think about.
190. She told the Tribunal that Associate Professor Bauze misrepresented what she had said to him. She gave an example where he had said she had commented that she would not do the washing and she said that she said she would “rarely do the washing”.
191. She claimed she was tearful immediately after leaving Associate Professor Bauze’s rooms, but acknowledged that the DVD shows her looking quite cheerful when she came out to the street from his rooms. She said that Mrs Frances Vinall had cheered her up as she left the rooms and that she had been very supportive to her.
192. Her explanation for not disclosing details of the impending trip to Associate Professor Bauze was “he didn’t really give me a chance to speak ... he had made me feel upset – very upset.”
193. She pointed out that Dr Stark was aware of the intended trip and had encouraged her to go because she had family in Canberra.
194. Ms Obst subsequently made some notes on a copy of Associate Professor Bauze’s report of 23 January 2007 commenting on what she considered to be inaccuracies and mis-reporting (Exhibit A14). She had produced this annotated report at the Disciplinary Inquiry that took place in March of 2007.

MRS FRANCES VINALL’S EVIDENCE ABOUT THE CONSULTATION WITH ASSOCIATE PROFESSOR BAUZE

195. Mrs Frances Vinall gave evidence to the Tribunal. She confirmed that she attended the appointment with Ms Obst on 23 January 2007 and took notes, but she did not produce those notes to the Tribunal. She claimed that Associate Professor Bauze in the course of the statement had made words to the effect of Ms Obst wanting to be an invalid and wanting to be in a wheelchair. She said he made it as a statement. She claimed that he made the following comments:

“The things I remember distinctly, that I would never forget are, “So you’ve been a lazy person” –one or two words might be not exact but they’re almost exact – “so you’ve been a lazy person who has stayed in bed all day and let other people make excuses” – there’s another word and I’ve forgotten it – “for you.” Just let me think, there was else major. It’s gone out of my head. “You’ve stayed in bed all day, been a lazy person, other people – and let other people make excuses for you.” There’s something I’m forgetting there.” [transcript page 498]

196. She accused him of using “loaded language”. She claimed that Ms Obst cried in front of Associate Professor Bauze. She claimed that Ms Obst was “despairing and distressed” after the appointment. She said that she wanted to stop the meeting between Ms Obst and Associate Professor Bauze, but was told by Associate Professor Bauze not to interject.
197. She said that when they left the meeting she tried to make Ms Obst feel better and calm her down.
198. She claimed to have never seen the report of 23 January 2007 that reported on the interview, nor had she ever watched the relevant surveillance DVDs.
199. She could not recall whether she told Associate Professor Bauze that she intended to make notes.
200. There were other aspects of the interview that she could not recall. She could not recall whether there was any discussion between Associate Professor Bauze and Ms Obst, for instance about what Ms Obst did on a day-to-day basis, whether she cleaned the house etc. The words that she particularly recalled was his statement that Ms Obst wanted to be or was an invalid and wanted to be in a wheelchair. She claimed to have never discussed any of her evidence with Ms Obst or her daughter.
201. She claimed to have sent letters to APC and to the Medical Board complaining about Professor Bauze’s behaviour in the course of this consultation, but she was not sure whether she had ever received a reply. She had not kept copies of the supposed complaints.
202. Several attempts were made to recall Mrs Vinall to give evidence in relation to her own prior experience when she attended upon Associate Professor Bauze for a medico-legal assessment arising out a claim that she had made for compensation. She did not return to give evidence for medical reasons.

THE TRIP TO CANBERRA

203. Immediately following the consultation with Associate Professor Bauze on 22 January 2007, Ms Obst and Ms Vinall travelled to Canberra in Cristabel’s van.
204. Ms Obst was questioned at length about many aspects of this particular journey and the surveillance evidence available to the Tribunal with respect to portions of this journey.
205. After going first to a service station and then the Elizabeth Shopping Centre, Ms Obst and Ms Vinall travelled to Mildura where they spent the night. When questioned about why she appeared to be in such good spirits when she was at the Elizabeth Shopping Centre, Ms Obst explained that she was looking forward to seeing her father in Canberra. She acknowledged being seen in the surveillance DVD carrying shopping bags and at one stage carrying what appeared to be a heavy container of water.
206. She admitted driving for a section of the journey from Balranald to Wagga. She told the Tribunal that she did so because Ms Vinall needed a break.
207. She agreed that the surveillance evidence showed that she was wearing her blue tubular ankle support when she saw Associate Professor Bauze and that she was not wearing it on the following day. She attempted to explain this by saying that she specifically recalled that it was a hot day when she saw Associate Professor Bauze as she could recall that she was unable to wear long pants on the day and that the next day was a cooler day.
208. Meteorological evidence provided to the Tribunal subsequently established that this was not the case and that it was cooler in Adelaide on 22 January 2007 than in Wagga the following day.
209. She denied that she put the ankle support back on in Wagga because she had realised that she was under surveillance. She claimed that she put it back on because it was a hot day and her ankle had become swollen as she had been driving for a stretch.
210. In her evidence she acknowledged, when shown some comments in Dr Stark’s notes, that she and Cristabel had first suspected that they had seen someone following them in Mildura but at that point they were not “100 percent sure”.
211. She said that it was distressing to realise that she was under surveillance as she thought that “they were in support of me and my injury” [transcript page 98].
212. She told the Tribunal that she was intimidated and frightened by the fact that they were being followed by an unknown person and once she reached Canberra she essentially stayed indoors for the time that she was there as she was too fearful to go out. She telephoned Dr Stark from Canberra and told her of being followed.
213. Her evidence was that driving from Balranald to Wagga was painful for her ankle, but that she wanted to give Cristabel a break as Cristabel was fatigued and Ms Obst wanted to get to Canberra to see her father.
214. She was questioned about the surveillance evidence that showed her getting in and out of the van on a number of occasions. She explained her method of getting into and out of the van by using arm strength to pull herself in to avoid pressure on her left foot [transcript page 106].

OTHER EVIDENCE ABOUT THE TRIP TO CANBERRA

215. Cristabel Vinall also gave evidence to the Tribunal. Her statement was received as Exhibit A11.
216. She is a remedial massage therapist by occupation.
217. She went on the trip interstate with Ms Obst and did the bulk of the driving between Adelaide to Canberra. The trip was in the vehicle purchased form Mr Burlison.
218. She said that after leaving Associate Professor Bauze’s rooms on 22 January she observed that Ms Obst appeared to have been crying and was withdrawn, and did not want to talk about her meeting with Associate Professor Bauze. They went shopping briefly at the Elizabeth Shopping Centre and then commenced their journey towards Canberra.
219. Ms Vinall was questioned about an incident in the DVD when Ms Obst is seen to come out of a shopping centre in Mildura carrying what appears to be a heavy water container.
220. Ms Vinall acknowledged that it was a big “heavy container of water” that Ms Obst carried out of a shop in Mildura, but she said that Ms Obst insisted on carrying it because Ms Vinall was changing her shorts as she had discovered she had them on inside out. She said Ms Obst had appeared angry at the time and had insisted on going to get the water, saying to her “I’m not a fucking invalid” even though Ms Vinall had said that she would get the water as soon as she had changed her clothes.
221. She said that initially after leaving Adelaide Ms Obst appeared angry and “sharp”, but that she began to “lighten up” as they got further along the road. She said that she observed her to be shaky after leaving the medical rooms, but that she did not discuss her meeting with Associate Professor Obst with Ms Vinall until after they left Mildura when she claimed that Ms Obst broke down and told her about how distressing the meeting with Associate Professor Bauze had been [transcript page 681].
222. Ms Vinall said that it was at Wagga that they first realised they were being followed when they were told by a third party in an underground shopping centre that she and Ms Obst were being followed.
223. She described feeling a sense of panic when they realised they were being followed. Ms Obst had mentioned to her previously that she thought she may be under scrutiny, but Ms Vinall did not think they would ever be followed interstate nor was she aware that she had been filmed previously. She described it as being a frightening experience to discover that they were being followed and they were concerned for their own safety.
224. They reported the incident to the police in Wagga and again telephoned the police in Gundagai when they again sighted the vehicle. They saw the vehicle and tried to get the number plate, but he “sped off”.
225. She agreed that Ms Obst drove from Balranald to Wagga because it was a hot day and Ms Vinall said that she wanted a rest and she had a headache. She confirmed that her observation was that Ms Obst’s ankle was swollen when they arrived in Wagga and that she needed it elevated. She said that the reason she is observed in the surveillance evidence hanging a curtain across the back window of the van in Wagga was because she wanted Ms Obst to lie down because of the ankle swelling.
226. She claims to have put the curtains up before they saw the gentleman who was following them. Her recall was that 22 January 2007 was similar in temperature to 23 January 2007, but not quite as hot as 23 January 2007.
227. Her evidence was that Ms Obst said that she would have to stop driving before reaching Wagga because of her ankle and she pulled over as soon as she reached Wagga.
228. She confirmed Ms Obst and Mr Burlison’s evidence about how the gears on the Hiace van were used and that Mr Burlison took Ms Obst for a drive when she first purchased the vehicle to teach her how to use the gears.
229. Ms Vinall was emphatic that she did not suspect they were being followed at Mildura.
230. She acknowledged that she had seen Associate Professor Bauze’s first report because he had said things about her in that report and she claimed that there were discrepancies in his report of 26 July 2006 as to what actually occurred at the meeting. She no longer had the notes that she took at the July 2006 meeting. She claimed to have never seen his 2007 reports. She also said that she had only seen the surveillance DVD of 22 and 23 January 2007 and that she did not know of any other surveillance evidence.

EVENTS LEADING UP TO THE DISCIPLINARY INQUIRY AND THE DISCIPLINARY INQUIRY

231. Ms Obst was certified fit to return to her employment as of 12 March 2007.
232. On 8 March 2007, she was visited at home at Glenelg by Mr Edwards and Mr Gigney. She told the Tribunal that she thought they had come to see how she was. Her response when she opened the door when they asked her how she was going was that she was all right and that she would see them on Monday as that was when she was due to return to work.
233. She claims that Mr Edwards responded by saying “Don’t bother to come in because you have been suspended” and he handed her a letter and told her she should also check her letter box occasionally. She claimed that he said with a smirk on his face “How are you going anyway?” She asked them to leave. They had arrived unannounced. The letter that she was given was Notice of the Disciplinary Inquiry (Exhibit A1). She claims that she burst into tears as they left and collapsed and telephoned her friend Cristabel and asked that she come after work to visit her. Cristabel worked nearby.
234. When Cristabel came she checked the letterbox and they found the letter with Associate Professor Bauze’s report in it, being his supplementary report of 1 March 2007, and the letter from Mr Pattison of APC which rejected liability for her psychological injury claim and which ceased present liability with respect to her ankle injury.
235. Prior to the Disciplinary Inquiry she requested that she be provided with a copy of the DVD evidence, but it was refused. She also asked if she could bring Dr Stark with her, but that request was also refused.
236. She attended the Disciplinary Inquiry with Mr Townsend, the union representative. She had previously spoken to Denise Isola who was to conduct the hearing. She understood that she would be shown the DVD surveillance evidence at the actual hearing, but it was not shown to her. Her evidence-in-chief on that point was that:

“And what happened at that hearing?---I couldn’t go through with it.
Why was that?---Because I didn’t understand what they were accusing me of when they said it. I didn’t know. They explained things and confused me and they were nasty. She was nasty to me. And I didn’t understand why.” [transcript page 43]

237. Ms Obst had understood that she would be suspended on full pay and that was also reflected in a letter that she received from APC on 8 March 2007. That was ultimately not the case. At the time of the Disciplinary Inquiry and then since mid 2007 when all her leave entitlements expired, she has been receiving Centrelink benefits which she referred to as making her feel “like a bum”.
238. She understood that the disciplinary process has not been completed because she was not mentally capable of completing it and that is what the doctors were saying.
239. APC stopped paying for her medical care and their payment for physiotherapy stopped before her income payments stopped. Thereafter she has relied on the public health system and she has ceased some forms of physical therapy, like physiotherapy, because she cannot afford it. She can no longer afford to attend the gymnasium, but enjoys swimming in the summer at the beach.

MR TOWNSEND’S EVIDENCE ABOUT THE DISCIPLINARY INQUIRY

240. Mr Townsend, who was the union representative that attended the Disciplinary Inquiry with Ms Obst, also gave evidence to the Tribunal. He is an industrial officer whose day-to-day work is with APC and he has attended many disciplinary inquiries at APC.
241. His statement was received as Exhibit A16.
242. Ms Denise Isola conducted the Disciplinary Inquiry.
243. He can recall Ms Obst being surprised when told at the commencement of the hearing that despite having been told prior to the hearing that she would be able to view the surveillance evidence she would not be shown the surveillance footage. He recalled her becoming upset at this point in the proceedings.
244. He did not consider from his own observation that Ms Obst was argumentative or rambling or confrontational during the hearing (comments made by Ms Isola), but he said she did appear to be confused and he was not sure that she understood what was being suggested that she had done wrong. He described her presentation as timid and scared by the situation and by her surroundings and he thought she was intimidated by Ms Isola and the questions being asked.
245. In his statement he described Ms Isola’s manner as “forthright, aggressive and accusatory”.
246. He said that when in the course of the hearing Ms Obst became aware of the extent of the surveillance on her she became “initially very upset and ultimately hysterical.” He described her as becoming inconsolable and crying uncontrollably. He commented that he had rarely seen anyone react that strongly, nor has he ever seen APC go to the extent that they did to follow and observe someone. He observed Ms Obst then leave the room and collapse on the footpath outside in a very distressed state.
247. Prior to the hearing he was advised as to the existence of surveillance footage and of what would be asked of Ms Obst, but was advised he was unable to inform her and so he did not tell her. He said it was only during the hearing that he became aware of the full extent of the surveillance.
248. He agreed that it was common for APC not to provide surveillance footage prior to a Disciplinary Inquiry.
249. He said that if Ms Obst had been putting on the distress that she showed during the hearing “she should get an Emmy Award for her acting abilities”.
250. He described Ms Isola as a matter of fact sort of person with not a lot of emotion and when she runs inquiries they are what he described as “Thatcher like” in style.

RELEVANT EVENTS OF 2007

251. Ms Obst attempted suicide on 21 March 2007. She was taken to the Flinders Medical Centre where she was detained overnight. She then commenced to see a psychiatrist, Dr David Coyte, shortly thereafter and she continues to see Dr Coyte.
252. She told the Tribunal that she tried to hang herself some days after the Disciplinary Inquiry because she felt her life was over. Her evidence was as follows:

“I didn’t have an income. They made me feel horrible about myself. I didn’t know why. I didn’t understand and at that point in time Post was everything to me. I loved it, and to have them tell me I was a fraud it made me feel like life wasn’t worth it. Life was worth nothing.” [transcript page 44]

253. In August 2007, Ms Obst obtained her first appointment with the Flinders Medical Centre Pain Clinic. She underwent various tests including pain testing, a diagnostic block and psychological testing. She started physiotherapy and in November 2007 she commenced a six week hydrotherapy program which she said she found helpful. She cancelled her gym membership in November 2007 as she could no longer afford to fund it.
254. She was first given a walking stick by the physiotherapist at the Flinders Medical Centre who recommended that she use the walking stick to enable her to improve the movement in her ankle without putting pressure on it and she used it from time to time thereafter. She recalled using it for band practice on occasions because she could remember the owner of the rehearsal studio laughing at her because of her use of a walking stick. She believes that she may have taken the walking stick to a performance on at least once occasion at the Squatters Arms.
255. Ms Obst was shown some DVD surveillance taken on 15, 28 and 29 November 2007. On some occasions she was seen to use a walking stick and on other occasions she did not.
256. She said that at the time it was recommended she use it if she was walking some distance.
257. She went to see the psychiatrist, Dr Cotton, for a medico-legal assessment at the direction of APC on 28 November 2007. She was shown DVD surveillance that showed that she used her walking stick to walk 10 to 20 metres from the vehicle that she arrived in to his rooms on that day. She appeared to have a pronounced limp. Her response was: “My ankle was extremely painful that day as I hadn’t taken any painkillers before I saw him”. She acknowledged it was not a long distance. She said that whether she needed a walking stick depended on the level of her pain [transcript page 172].
258. She explained that she had been driven to the appointment by a friend having driven herself first to her friend’s place at Mansfield Park. She denied the suggestion that she did not wish to be seen to drive to Dr Cotton’s rooms. On the same day she was filmed shortly after leaving Dr Cotton’s rooms, walking short distances without her walking stick.
259. She denied that she took the walking stick with her when she went to see Dr Cotton because she thought that she may be filmed. She also denied that she wanted to exaggerate the nature of her ankle injury.
260. She was then questioned about accuracy of the history given by her to Dr Cotton in that first consultation. It was put to her that again she had failed to mention her involvement in a band and that she had tried to present an incorrect picture of her social situation to Dr Cotton describing herself as leading quite an isolated life with few friends and few social outings. She had also omitted to tell him about the very significant problems that she had with neighbours in 2007 that had resulted in her moving her accommodation.
261. Her evidence was that she was convinced she had told him about her involvement with the band. She otherwise had no adequate response to the other assertions put to her by counsel other than to try to explain her trip to a hotel in 2006 as being a “family gathering” rather than a social occasion.
262. On the second occasion that she saw Dr Cotton in October 2008 she agreed that she had told him that she had definitely not undertaken any part-time work, of a driving nature or any other, since she had last seen him. It was put to her that this was inaccurate as she had been assisting Cristabel with a magazine run in 2008. Her response to this was that she did not consider her assistance to Cristabel to be work and that is why she did not mention it to the doctor.

MS OBST’S ACCOMMODATION SITUATION AND THE NEIGHBOUR DISPUTE

263. From the time of her initial injury until mid 2007, Ms Obst was residing on her own in a two story townhouse at Glenelg. Her friend, Ms Vinall, visited often and stayed on occasions.
264. Ms Obst moved from her townhouse in around August 2007 to board with Ms Vinall and her father in a house owned by Ms Vinall’s father. She continued to reside with them at the date of the hearing.
265. She told the Tribunal that she had the Glenelg townhouse set up so that she could live downstairs if she wished to, although the showering facilities were upstairs. Immediately after the operation in 2006 when her ankle was bandaged she would live downstairs and on occasions when it was too difficult for her to go upstairs she would skip having a shower altogether. She kept a foldout bed downstairs. She said that the stairs in the townhouse were one of the reasons that she moved. She was not financially able to move prior to the date that Mr Vinall offered her accommodation.
266. In response to questions about why she continued to live in the townhouse for at least a year and a half after the first ankle injury she commented as follows: “I was stuck and I had no family ... none of my friends would want me to live with them, so I was stuck”.
267. She was challenged on this point on the basis that she had not told any of the reviewing doctors that she was having difficulties with the townhouse stairs. Dr Stark’s notes do indicate that Ms Obst complained of difficulties dealing with the stairs at the time that she was moving in 2007.
268. She agreed in her evidence that she had significant difficulties with a neighbour at Glenelg in 2007, one of whom was involved with drugs. She took steps to have the neighbour evicted by first drawing up a petition and speaking to the other neighbours regarding this particular neighbour. She then enlisted Dr Coyte’s assistance to see if a letter from him would persuade the housing authorities to relocate her. That was unsuccessful, so she moved out of there in September 2007 and she moved in with Cristabel and Cristabel’s father. Her evidence was that she also could no longer afford to live there.
269. She agreed that at one stage Cristabel was assaulted in the car-park behind her Glenelg unit and that Ms Obst was also assaulted by a neighbour’s sister in 2007.

EVENTS OF 2008

THE “RIP IT UP” MAGAZINE RUN

270. There was further DVD surveillance taken of Ms Obst in 2008. She was shown evidence of her attending at Associate Professor Bauze’s rooms for another consultation on 23 January 2008. She was in company with Mr Vinall and she was seen to be using a stick and limping. She denied that her reason for not driving herself was because she wished to present an appearance of not being able to drive.
271. She was shown further surveillance evidence of her in August and September 2008 which appeared to show her collecting magazines from Mile End. The surveillance evidence also appeared to depict her putting a sack truck into the blue van after collecting the magazines at a depot in Mile End.
272. She said that she could not recall using a sack truck, but acknowledged that perhaps she had “slid it” into the van.
273. She acknowledged that she was seen in surveillance material attending at the Marion Shopping Centre and at the Motor Vehicles Department. She acknowledged she appeared to walk without a stick and without a pronounced limp.
274. She was asked at length about her activities in assisting Ms Vinall in the delivery of magazines or newsletters in 2008. She said that her capacity for work had improved further by 2008. She eventually acknowledged that she had regularly “assisted” Ms Vinall in relation to deliveries of the magazine known as “Rip it Up” in 2008. She also acknowledged that she had collected the magazines on her own and that she had manually loaded the blue van on her own on occasions. They came in bundles of 50 or 100 magazines.
275. When challenged about her presentation to Dr Cotton in November of that year, she said she did not consider that assisting Cristabel with delivering newspapers was something worth mentioning to Dr Cotton. In her mind this was not a job, but was simply “helping out a friend”. It was driving and delivering. She commented that Ms Vinall had done a lot for her. She claimed to have no idea of what Ms Vinall is paid for the work and she claimed to have never received any payment for it.

MS VINALL’S EVIDENCE ABOUT THE MAGAZINE DELIVERY RUN

276. Ms Vinall’s evidence was that she had been involved as a sub-contractor doing the “Rip it Up” magazine run since late 2007. She also does deliveries of some other magazines such as “The Adelaide Review”.
277. She collects the magazines and delivers them to various hotels and businesses. She is paid for this work, but she claims to have never discussed what she is paid with Ms Obst, nor has she ever offered payment to Ms Obst [transcript page 658].
278. She admitted that Ms Obst had collected the magazines for her on a “couple” of occasions when she was unable to do so and that she had assisted with deliveries on perhaps five occasions. She told the Tribunal that she may buy Ms Obst lunch or dinner “in appreciation” for her assistance.
279. She denied that the run was a joint enterprise. She then admitted that she does have a sack truck and that she then recalled that it had been with Ms Obst when she went to do collections on her own.
280. She claimed to have never seen the DVD surveillance material of Ms Obst collecting the magazines.
281. She acknowledged that Ms Obst regularly drove her blue van.

MS OBST’S EVIDENCE AS TO THE CURRENT STATE OF HER LEFT ANKLE

282. Ms Obst remains keen to return to work.
283. She was asked to clarify the current state of her ankle and the pain that she suffered. She commented in her evidence as follows:

“It’s significantly less than what I was suffering – the pain is. I still do get pain on a daily basis, but it’s not as regular. Stabbing pains, my foot will burn, my toes curl under, my leg cramps and my toes curl under.
So you still have a level of pain in that regularly and what about the level of disability? You’re getting around okay now, you could return to work if you were able to?---Yes, I’m trying very hard to rehabilitate myself.” [transcript page 45]

284. She said that her walking distance varies from day to day. The pain tends to occur after she walks and it is like an aching and a throbbing. She said at the moment the pain continues to be persistent and she was still taking various medications, including Panadeine Forte and Panadol on occasions, Nurofen and anti-inflammatories.
285. She is currently holding a prescription from her doctor for Panadeine Forte but she does not like to fill it in because of the negative affect that particular drug has on her and so she takes two to four Panadol on an average day and on a bad day she will take up to eight Panadol. She estimated that her bad days are now probably three out of seven. She sometimes takes a Panadeine that is obtainable from the chemist with a slightly higher level of codeine in it.
286. She has recently purchased herself a rowing machine on a rent-to-buy basis. She tries to do some walking. She relies a lot on rails when ascending stairs and finds it more difficult to go down than to come up. She said she still has difficulty bringing her foot up. She said that her range of movement has improved in her ankle.
287. The intermittent aching or throbbing in her ankle is not as bad as it was when she was at the Pain Clinic. She now drives a manual vehicle, but said that she drives it in a similar fashion to the way she drove the van and tries to avoid using the clutch and “crashes” through the gears.

THE OTHER RELEVANT EVIDENCE OF CRISTABEL VINALL

288. Ms Vinall gave some other evidence of relevance.
289. She had accompanied Ms Obst to the first consultation with Associate Professor Bauze in the middle of 2006. She had been less than impressed with his manner. She described herself as being “appalled at his manner and ... how he began” [transcript page 701]. She said that when she walked into the room behind Ms Obst he said to Ms Obst “Someone is following you”.
290. She said that she can recall disagreeing with aspects of his report as he reported what she considered to be half-truths or he did not accurately report things.
291. Ms Vinall also gave evidence about how Ms Obst used the drums. The following dialogue took place with counsel:

Have you ever had a discussion with Ms Obst about how she uses her left foot in relation to the operation of the hi-hat pedal?---Yes.
When did you have a discussion?---In discussing with her about treatment. When I’m treating her I have to ask her questions to determine what’s going on and how I can best help her. And that was actually a main cause of the problem that she was having.
What was the main cause of the problem she was having?---Well, that was certainly a contributing factor she would say, to problems she was having in her lower back.
What was the contributing factor?---That – her action, if she was drumming a lot, the action of her lifting the whole leg like that.
Sorry - - -?---With her soleus muscle.
Are you saying that by lifting her whole leg, you understood that that was aggravating her ankle problem?---No, it was a contributing factor to her, an associated problem due to the action of how she was playing the drums, in her lower back, with the soleus muscle which attaches to each of the five lumbar vertebrae and the hip bone, in the sort of thing here.
And do you know whether the way she has lifted that left leg and placed it on the hi-hat pedal is the normal way that she would do it, or is that an abnormal way, or don’t you know?---Yes, that’s an abnormal way.
How would it normally be done?---Well, like you do the drum – the base drum, well, ankle action.
In other words her – can I interpret that as being heel continually placed on the ground with the front of the foot lifted up and down?---Not necessarily the heel on the ground, but yes, certainly more lower leg and ankle movement, yes.” [transcript pages 709-710]

292. She said that on occasions in 2007 she would do the shopping for Ms Obst even when they were not living in the same premises because she worked closer to where Ms Obst was living. She has also helped Ms Obst load and unload her drums both when she was living in Glenelg and now that they share the same premises.
293. She was adamant that she was not present on 8 March 2007 when Ms Obst was visited by Mr Edwards and Mr Gigney. She said they had left by the time that she arrived at Ms Obst’s house.
294. She disclosed that she and Ms Obst had been in a relationship for a period and when asked when was that and for how long she commented “I am not sure, but there was two occasions when we tried being more than friends. One was about six weeks, one was about two weeks.” She described that as being not recently but since Ms Obst had injured herself.

THE MEDICAL EVIDENCE

295. The Tribunal heard evidence from Dr Dracopoulos, Associate Professor Bauze, Professor Cherry, Dr Stark and Dr Bastian with respect to Ms Obst’s ankle injury.

Dr George Dracopoulos

296. Dr Dracopoulos carried out the original operation on Ms Obst’s ankle and he was the first doctor to mention the possibility she may be suffering from CRPS.
297. The Tribunal had available to it his medical reports dated 15 April 2006, 13 June 2006, 22 September 2006 and 12 September 2007 (T23, T25, T32 and T62).
298. A summary of his first report (T23) is at paragraph 39 (supra). When he first saw her he recommended that she cease work immediately until after surgery had taken place. He hoped that after surgery she may be fit for pre-injury duties by June 2006.
299. In his second report (T25) he confirmed the findings of surgery and considered it was too early to comment on the results. He thought that Ms Obst would benefit from some intensive rehabilitation and physiotherapy which would need to continue for some two months after surgery.
300. His third report (T32) is summarised at paragraph 56 (supra). It was in this report that he suggested a referral to a pain clinic or pain specialist and expressed the opinion that Ms Obst had suffered from CRPS affecting her left lower limb in addition to some post-traumatic synovitis of the ankle.
301. His final report (T62) was based on a review of his treatment file without having seen Ms Obst again. He confirmed his belief that Ms Obst was suffering from CRPS.
302. In his evidence to the Tribunal, he explained what post-traumatic synovitis was and said that 85 to 90 percent of individuals with the sort of synovitis from which Ms Obst was suffering do well by about two months. Of those remaining that still have symptoms at two months post surgery, a number of those go on to improve with time and then there are the others that do not get better even at a year post surgery. He said that it is inexplicable as to why some people do not appear to recover.
303. When questioned about the opinion expressed in his report that she was suffering from CRPS, he commented that he did not think she had the classic signs when he saw her which are colour change, sweating and various sympathetic nervous symptoms or signs [transcript p 691]. He thought that she was “very sensitive generally, more than one would expect just from, you know, just the surgery or the injury”.
304. He pointed out that he has no expertise as a pain specialist. He considered that he had observed a pain syndrome of some sort in Ms Obst in 2006 and that it was appropriate that she be referred to a pain clinic. He does not treat CRPS, but always refers it to an appropriate specialist. It is, in his opinion, a “grey area” and if he thought someone was developing this condition, he said the best thing is to keep the limb moving and refer on to a pain specialist. He has seen this complication in other patients with similar injuries to Ms Obst.

Associate Professor Bauze

305. Associate Professor Bauze had provided a number of reports in the context of Ms Obst’s claim. His reports are dated 26 July 2006 (T29), 23 January 2007 (T44), 1 March 2007 (T46), 23 January 2007 (Exhibit R21) and 25 January 2008 (T56). His first two reports were supportive of Ms Obst.
306. In his 23 January 2007 (T44) report, he noted that she could not drive a manual car, but could drive an automatic vehicle. He noted extreme tenderness to touch on her left ankle, but no difference in heat, colour or sweating of the left compared to the right. He diagnosed subtalor synovitis and abnormal behaviour.
307. He commented in that report that she appeared to have adopted a sick, dependant role and somewhat unrealistic behaviour in terms of activities, etc. He considered she was not fit to return to work driving a manual truck. He considered her fit at that point for seated duties, automatic car pick ups or training runs and that she could work in a clerical position with walking limited to a maximum of about 50 metres or so.
308. His next report of 1 March 2007 (T46) post-dated him viewing the DVD surveillance reports as outlined in that report. He had also had a discussion with the solicitor acting for APC, although the Tribunal has no record of the content of that discussion.
309. He expressed the opinion that the surveillance video of December 2006 and January 2007 confirmed his opinion expressed in his January 2007 report that Ms Obst’s self report of level of incapacity was inaccurate. He now thought there were non organic elements present at his first examination and that on the second examination in January he now considered her presentation “unrealistic and feigned”. He considered she was fit for the full-time alternative duties provided to her by APC as described in his report of January 2007.
310. In giving his evidence to the Tribunal, he outlined his methodology with respect to his medico-legal interviews, saying that he took contemporaneous notes of the history as given to him, repeats what he has written and then checks as to whether that is correct with the person he is interviewing. He claimed to have accurately reported the history as given to him by Ms Obst.
311. He thought that she was wearing inappropriate footwear in January 2007 for someone who had a painful ankle on the day that he saw her. She was wearing “Crocs”.
312. In his evidence to the Tribunal, he described her as “passive aggressive”. He commented as follows:

“People who behave passively, who resist activity, who resisted management strategies by employers or doctors and who basically ... fail to follow normal recovery, particularly in the compensable situation. Often behave just as, sort of, blockers. They just block everything. And this is without being personally aggressive or shouting at people or who are rude or anything; they present as aggressive by being passive. That’s the best way I can describe it and this is how I felt Ms Obst was ...” [transcript page 820]

313. When Ms Obst attended the appointment with him in January 2007, he said that she made no comment to him about his previous report. He was also confident that there has been no report to the Medical Board of South Australia about the way he behaved towards Ms Obst at the January 2007 consultation. He had personally checked with the Medical Board in the week prior to he hearing to confirm that was the case. He was adamant that he behaved respectfully and appropriately towards her at all times.
314. He agreed that it is not normal for people’s feet to have different temperatures.
315. He expressed the view that to make a diagnosis of CRPS, significant subjective signs were required beyond just the complaints of the person. Pain itself is not an objective criteria. He pointed out that there are differing views about the criteria for diagnosing the condition of CRPS. He explained that CRPS divides into two categories. One is associated with a nerve injury and was previously known as causalgia and the other is not associated with a nerve injury and is referred to as reflex sympathetic dystrophy. This is now known as CRPS Type 1.
316. He commented that CRPS has been promoted very strongly by “pain management specialists and others who have come on board to say that it is not a psychological problem. However, I suspect that a lot of it is.” He referred to it as “a weird condition” that he did not believe even the pain clinic people understood. When he had seen his own patients with signs of this syndrome, he would generally refer them to physicians rather than pain clinics. He commented as follows: “I avoided sending them to a pain clinic because the results I have seen of a pain clinic have not been too good”.
317. He placed great weight on the Comcare Guide for assessing permanent impairment. Ms Obst did not fit the criteria in his mind for assessing permanent impairment and he considered those criteria should also be used for diagnosis . He disagreed with the evidence of Dr Cherry and Dr Bastian in that regard.
318. Further on in his evidence, he was asked to comment on a comment made by Professor Cherry in his report that the condition of CPRS is often associated, because the longevity of the symptoms, with a mood adjustment disorder. His response was as follows:

“I don’t know enough about diagnosis of mood adjustment disorder, but I would say that no person that I have seen with complex regional pain syndrome 1 or with pre-cursors of it have been totally normally psychologically. ... no patients that I have seen with it have been totally normal psychologically. I think that they are anxious people and this is before it all developed. ... Most people who have the pre-cursors as well as the condition ... are not calm, relaxed people” [transcript page 833]

319. He agreed that it was possible that Ms Obst told him that she played the drums in January 2007, but that he had omitted to include it in his January 2007 report. He then decided that she could not possibly have told him the more he thought about it.
320. He was defensive about the allegation that he said that she was an invalid and would end up in a wheelchair. He agreed it would be a provocative thing to say. He acknowledged using the term “invalid” in his dialogue with her.
321. He had noted during his examination of January 2007 that her left calf was smaller in circumference than her right. He accepted that this was potentially an objective sign consistent with either disuse or CRPS, but he considered that it was not a criteria for CPRS in this case as it was a criteria for what he referred to as “her sprained ankle which went along with the decreased range of movement of her ankle due to the sprain” [transcript page 837].
322. He confirmed that his speciality was that of bones and joints and that as an orthopaedic surgeon, he thought that her presentation was unrealistic.
323. After seeing the surveillance video, Associate Professor Bauze had prepared some notes of his observations which were received an Exhibit R17.
324. He acknowledged that he had scribbled comments of the report of the surveillance video which had been given to him by the solicitors acting for the respondent. He considered that on occasions in the surveillance evidence his opinion was that she showed no limp or a minor limp and he noted that on occasions she did not wear an ankle support.
325. He considered that there was minimal abnormality to be seen when she was walking with only an occasional slight limp. The major factor which in his mind justified his view that she was feigning symptoms was the perceived lack of a limp in the DVD evidence or the fact that she was not limping very much and the fact that she did not wear a support “at some stage” [transcript page 843].
326. In his report of 1 March 2007, he had made the comment “She is clearly able to be on her feet or sit in her car for much longer periods than she claimed”.
327. He accepted that he had no evidence on which to base that statement as Ms Obst had not provided him with any history of how long she could sit in the car. He agreed that she had never given him any history of the length of time she could stay on her feet, but he had assumed from other things that she had told him, such as having to sit down to make a salad, that she limped a lot more than he saw her limping in the video.
328. It was put to him that in his first report he noted that the sensation of touch was different over the left foot/ankle compared to the right. He commented that he considered that response to be “non-organic”. When asked why, he commented as follows: “Because there is no reason for her to have a different touch sensation over the whole foot and ankle when she had sprained her ankle”.
329. When asked whether that could be explained by CRPS, he commented: “No, because she didn’t have it”.
330. He acknowledged that although he had not seen her for a year at the time that he was giving evidence, he would not be surprised if she still had some permanent physical impairment in her ankle.
331. Associate Professor Bauze saw her once more for the purposes of preparing a further report on 23 January 2008. In his examination on that occasion, he observed that the left lower leg was dusky from about half way between the knee and the ankle, the same area felt colder compared to the right, there was diminished sensation to touch over the whole left lower leg below the knee and an increased sensitivity to touch over the outer side of the left ankle and foot. He observed no swelling or oedema.
332. He found the range of movement of her left ankle and hind foot were near normal. The only evident loss of range of movement on that occasion was a 10 percent loss in dorsiflexion on the left.
333. In his report of 25 January 2008 (T56), he considered that she could be working full-time in a job where she could be largely sedentary with her left leg slightly raised. He indicated that the history remains suggestive of CRPS Type 1.
334. He expressed the view in that report that as a result of the ankle injury which he referred to as a “severe sprain”, she would always have difficulty with walking up and down stairs and running.
335. He confirmed that she was still partially incapacitated as a result of her ankle injury in January 2008, although he rejected the diagnosis of CRPS as he considered there were not sufficient objective criteria present.

Professor Cherry

336. Professor David Cherry, is the Director of the Pain Management Unit at the Flinders Medical Centre. He had prepared two previous reports dated 9 November 2007 (T65) and 10 March 2009 (T68). He gave evidence to the Tribunal.
337. Professor Cherry saw Ms Obst on a number of occasions after she was referred to the Pain Clinic at the Flinders Medical Centre. He is a specialist anaesthetist and a pain physician.
338. In his report of 9 November 2007, he diagnosed Ms Obst as suffering from a CRPS of the left lower leg with an orthopaedic complaint around her left ankle. In addition, he expressed the view that she was suffering from a mood adjustment disorder with depressed mood.
339. He told the Tribunal that he had observed objective symptoms of CRPS while examining Ms Obst, including decreased temperature of the left foot, altered perception to touch beneath her left knee, intermittent colour changes in the left foot and ongoing pain and changes in temperature of the left foot with weakness and wasting of muscle in the leg. He observed temperature difference between her left and right lower limbs in examination and a diagnostic block was carried out and confirmed the temperature difference.
340. The diagnostic epidural block also confirmed in his opinion that her pain responses were genuine [transcript page 279].
341. His second report of 10 March 2009 confirmed his original diagnosis that he considered that her symptoms of CRPS were decreasing with time.
342. He had viewed the surveillance evidence, but he told the Tribunal this had not altered his previous opinion that she had CRPS. He thought that in time she would have little, if any, residual disability related to the CRPS.
343. He attributed the CRPS to the work injury. He considered that it was inappropriate for her to be driving a manual car or carrying loads over potentially uneven ground.
344. He explained the current medical understanding of CRPS. There remain considerable differences of medical opinion in the area. A review article proposing a diagnostic criteria for CRPS was put to him (Exhibit A6). He largely agreed with it, but with some reservations.
345. He had personally observed Ms Obst’s foot changing colours during one of his examinations of her foot when her foot went from a normal colour to blue. He described this as the sympathetic nervous system over-reacting. Although 95 percent of diagnosis was based on history, he said that in the case of Ms Obst, he also actually saw the colour change, which he referred to as useful.
346. Professor Cherry was pointed to Associate Professor Bauze relying on the second edition of the Comcare Guide in reaching his conclusion that Ms Obst did not suffer from CRPS. He disagreed that it was appropriate to use the guidelines in the Comcare Guide as diagnostic criteria [transcript page 284]. He gave as an example that he would never do a bone scan to make the diagnosis and he considered that the diagnostic criteria had “gone overboard” [transcript page 285]. He commented that the Comcare Guide and the American Association Guide relied on patients having a very severe long-term case of CRPS, whereas in a case like Ms Obst, they were trying to stop it from going down that track of becoming a severe and long-term case.
347. He had with him his notes of his consultation with Ms Obst on 27 February 2009. He had recorded that on the day that he saw her, her leg was a normal colour and temperature and there was no swelling, but that she had reported an altered perception to touch from the knee down and that her leg goes blue and cold every day unprovoked and that her gait was still altered.
348. He considered the amount of medication that Ms Obst reports that she now takes of between two and eight Panadol a day was consistent with his views as to her current condition. He considered that if she had a job in IT, her left leg would become potentially swollen and that if she did obtain a job like that, she may need to wear some sort of stocking or glove and have regular exercise to reduce the swelling.

Dr Susan Stark

349. The Tribunal had available to it Dr Stark’s medical notes (T87/336-472). These provided a very good contemporaneous record of reports made by Ms Obst to her general practitioner and her general practitioner’s observations from the time shortly after the injury until at least September 2007. Dr Stark continues to be Ms Obst’s general practitioner and she gave evidence to the Tribunal.
350. Dr Stark also provided medical reports dated 4 January 2007 (T34/66), 22 March 2007 (T48/94), 4 April 2007 (T49/95-97) and 29 September 2007 (T64/149-152).
351. Dr Stark was entirely supportive of Ms Obst at all times.
352. Her first report was dated 4 January 2007. It was a brief report in which she summarised her review of Ms Obst on 28 November and 30 November 2006 where Ms Obst was experiencing a flare of her left ankle pain and was finding it difficult to mobilise and reported feelings of not coping emotionally.
353. Ms Obst had reported being given short notice of the need to attend upon a Dr Dundas for an independent medical assessment on 30 November 2006 and Dr Stark felt it was inappropriate for her to be given such short notice as it caused her more stress and anxiety and worsened her emotional state.
354. When questioned about that report at the hearing, Dr Stark observed that her notes recorded in December that Ms Obst had received a letter threatening to cease her WorkCover payments because she could not attend upon Dr Dundas at such short notice. Dr Stark felt that this was the trigger for her report of 4 January 2007. Her recall was that Ms Obst was not paid over Christmas 2006/7, which caused her distress and she had asked Dr Stark if she could write a letter of support for her. She had been told by her employer that she had not lodged all the correct paperwork.
355. Dr Stark has seen Ms Obst on many occasions. With respect to her ankle injury, she commented:

“... I recall, from my numerous consultations with Ms Obst over the time since her ankle injury, it would often flare after activity of seemingly fairly routine activity. So some days at the end of a long day she would have increasing pain or swelling.” [transcript page 436]

356. She also thought that from time to time in the warmer weather there was likely to be more swelling and aching in her ankle after activity.
357. Dr Stark confirmed that she had recorded in her medical notes Ms Obst’s feelings during the gold mail run. She commented as follows:

“Around about November Rebecca mentioned on several consultations that she suspected that she was being followed, and she wasn’t sure at that time who was actually following her, but she said she had noticed a particular person sitting in a car that appeared to be watching, and she had – I can’t remember now what type of car it was, but she had seen the same person, the same car, at multiple locations that she had been.” [transcript page 437]

358. She went on to respond to a question of how this made Ms Obst feel in the following terms:

“Oh, she was petrified. She wasn’t sure if she was being stalked by someone who wanted to hurt her. She had no idea that she was actually under surveillance through this WorkCover matter at that stage, so as an early 20-year old woman she was petrified that someone was following her and stalking her.” [transcript page 437]

359. Dr Stark had recommended she call the police if she thought she was in danger and they discussed her staying in public locations where there would be people around. When asked how troubled Ms Obst was by this, she responded:

“She mentioned it at the beginning, and was sort of more curious, or suspecting whether someone was followed, but actually became quite intense as the weeks and months went by, culminating with her actually ringing me from inter-state ...” [transcript page 438]

360. On 28 November 2006 she observed swelling of Ms Obst’s left ankle and she documented it. She said that when she saw Ms Obst again on 4 December 2006 they spent quite a long time discussing her emotional symptoms and that was when Dr Stark felt it appropriate to add that she was suffering from an adjustment disorder with depressed mood. She considered that both conditions were present on 28 November 2006 and that it was both the ankle and her emotional state that prevented her returning to work after 28 November 2006.
361. Dr Stark encouraged her to go to Canberra and “have some time out with her father, and try and sort of relax and hopefully improve in her mental wellbeing”.
362. At that stage Dr Stark was having regular contact with Ms Obst who was often phoning her.
363. She recalled that when Ms Obst called her from Canberra she appeared to be in:

“... a kind of a high level of distress. I remember her talking quite rapidly on the phone. She recounted an incident of being in a bit of a high speed chase with this person, they had tried to get away and the person had followed them, and done a U-bend in a street to try and get away, and it’s, you know, quite a dangerous situation.” [transcript pages 439-440]

364. Ms Obst consulted with Dr Stark on 8 March 2007 in a distressed state after the unannounced arrival of Mr Gigney and Mr Edwards on her doorstep. Dr Stark said this had severely increased her symptoms of depression and anxiety because it was so unexpected.
365. She commented that communications with her from APC ceased some time in November. She received no further reports from APC and the rehabilitation consultant ceased returning her calls. She was trying to organise WorkCover approval to get a psychologist review for Ms Obst as Ms Obst was unable to pay for it privately, but they could not get funding organised.
366. She was asked to explain a notation in her notes of 8 March 2007 where she talked about APC not facilitating the implementation of the rehabilitation plan. She said she was referring to their failure to communicate with her. There had been a detailed report from Ms Thornton in November 2006 outlining the type of therapy that could assist, but there appeared to be no action at all from the rehabilitation consultant and no communication. Nothing was ever followed up on.
367. She explained the delay in the referral to a pain specialist. Eventually Ms Obst was allocated an appointment towards the end of 2007 and saw Dr Cherry. Her view is that Ms Obst’s condition has improved since attending the Pain Clinic.
368. Dr Stark had no doubt about Ms Obst’s veracity. She considered that she had developed a good understanding of Ms Obst over a period of time.
369. She actively encouraged Ms Obst to play the drums which she also referred to as “her main hobby”.
370. She considered it “astonishing” that APC in its letter of 5 March 2007 had made the accusations that it did about Ms Obst. She referred in particular to page 3 of the letter from the Claims Manager dated 5 March 2007 which rejected her claim for adjustment disorder with depressed mood and ceased present liability with respect to her ankle injury.
371. The paragraph that she referred to was where Mr Pattison commented that the evidence compellingly supported a conclusion:

“... that your presentation lacks genuineness; that you have engaged in a deliberate course of deception and misrepresentation in the presentation of your injury effects to obtain compensation benefits in excess of your entitlement; to absent yourself from work; to obstruct an appropriate and structured return to work programme.”

372. Dr Stark’s statement with respect to that was as follows:

“Why did you bring that to my attention, Doctor?---Because with what I knew about Rebecca’s case, and her as a person, I felt that that ... did not reflect the situation, and I was quite surprised by their conclusion that she lacks genuineness, that she’s engaged in a deliberate course of deception, and misrepresentation, and going on to say that to obtain compensation benefits in excess of her entitlement. So the deliberate course of deception, and to obtain compensation benefits I was completely astounded by.” [transcript page 444]

373. When asked why she was astounded by this comment, she said:

“Well, by this time I had built up a fairly good understanding of Rebecca as a person, and her case, and had seen her many, many times, and she had never mentioned trying to obtain compensation benefits. We had never discussed money. Her primary goal and focus was actually returning to work, and recovering from her injury, and in my assessment of her character ... and in conversation with her never perceived her to be a deceptive person ...” [transcript page 444]

374. She said she was also astonished at the allegation that she was obstructing a structured return to work as she felt that it was APC who were preventing her returning to work at that stage in March 2007.

DR STARK’S EVIDENCE WITH RESPECT TO THE PSYCHOLOGICAL INJURY

375. Dr Stark expressed the view that Ms Obst still wanted to go back to APC despite what had happened as she genuinely loved the sort of work that she was doing before the injury.
376. She confirmed the accuracy of her notes about the contact she had with Ms Obst in September 2006 after she was moved to the conference room. She was still prescribing Panadeine Forte for Ms Obst in September 2006.
377. In October 2006, she encouraged Ms Obst to try to drive a manual vehicle away from work to see how she managed with it. Ms Obst reported to her in a consultation on 24 October 2006 that she had tried to drive the manual car around the block, but she was suffering pain at different times of the day in her ankle and that the ankle was throbbing after driving.
378. She spoke in detail about her consultations on 28 November and 30 November 2006 when she certified Ms Obst unfit in relation to both the physical and emotional issues. At the consultation on 4 December 2006, they had a detailed discussion about emotional issues. Ms Obst had reported on 28 November 2006 after the gold mail run, that she was not coping as well emotionally and so on 4 December 2006 Dr Stark followed up on that issue in more detail. She had Ms Obst complete a DASS questionnaire (T87/404), which is an inventory that assists depression, anxiety and stress. Ms Obst came out with high scores on the inventory which confirmed Dr Stark’s suspicions at the time that she was suffering from “high stress, anxiety and depression levels and needed quite urgent intervention” [transcript page 450].
379. Dr Stark then spoke about her attempts to get “urgent psychologist intervention or counselling” [transcript page 450]. However, because Ms Obst’s claim had not been accepted and because of her difficult financial situation, there were issues about her being able to afford a psychologist. She was first referred to Fiona Huppatz in January 2007, but did not get on well with her, so she was then referred to Christopher Wigg under a program known as the Southern Wellbeing Program. She commenced seeing him in February 2007.
380. She referred to the entry in her notes that shows that on 16 January 2007 Dr Stark made a long phone call to APC about what is referred to as “secondary claim for psychological injury” as she wanted to try to organise approval for psychological assessment. She was told that the claims officer had not made a decision. She suggested to APC that they request an urgent medical report from her to back up the claim. The notes also show that she had contacted the rehabilitation officer on 11 January 2007, but her call was not returned.
381. No request came for a report from her and on 5 February 2007, she received a request for a copy of her notes. On that same day she referred Ms Obst to Christopher Wigg at the Southern Wellbeing Program for six sessions. She commented about Ms Obst’s mental health at the time in the following terms:

“She was very, very stressed at that time, and it was quite an urgent thing for her to just have some structured counselling with a psychologist.” [transcript page 457]

382. Dr Stark was referred to her report of 4 April 2007 (T49) where she had commented at the failure of WorkCover to see any connection between the chronic pain and her ability to function in her pre-injury capacity and the psychological consequences.
383. She expressed the view that had Ms Obst been examined by a psychiatrist or psychologist instead of an orthopaedic surgeon (ie Associate Professor Bauze) the outcome could have been very different. At the time that she saw Associate Professor Bauze, she was suffering, in Dr Stark’s view, “very severe levels of depression, anxiety and stress”.
384. As part of the referral to the Southern Wellbeing Program, Ms Obst had to complete a second up-to-date DASS questionnaire on 6 February 2007 (T87/392). Again, her stress score came into the extremely severe rating, her anxiety score in the extremely severe rating and her depression score came with the severe category.
385. Dr Stark has observed on occasions, when physically examining Ms Obst, that her left foot was cooler than the right foot. She has also observed discolouration between the two limbs on more than one occasion and referred to a dusky colouration “more of a reddish purple colouration compared to the right on the left lower leg”. She has regularly observed swelling around the outer aspect of her ankle on the left side around the lateral aspect.
386. She agreed with Professor Cherry’s diagnosis of CRPS and said that prior to receiving his report confirming that, she had observed all the features which were documented in her notes, but she had not given it that label.
387. She had seen the surveillance evidence and said that there was nothing that she saw that would make her alter her opinion at all.
388. She recalled seeing Ms Obst using a walking stick on occasions. She believed that she was using it around the time that she was having more active treatment at the Pain Clinic, including hydrotherapy and physiotherapy.
389. Ms Obst reported to her in September 2007 that she was having difficulty walking up and down stairs when she was moving house.
390. Dr Stark was made aware by Ms Obst of the difficulty with the neighbours and believed that that was the final straw that resulted in Ms Obst relocating.
391. She confirmed that Ms Obst was taking Zoloft 50 mg when she first started seeing her in March 2006. This had been prescribed by her prior general practitioner. She said that this is a relatively low dose and usually the starting dose for Zoloft.
392. Dr Stark was of the view that in the year 2006, Ms Obst’s mood was stable and Ms Obst had wanted to come off the Zoloft medication, but Dr Stark advised against it at that time. She notes on 29 June 2006 that there was a definite stabilisation in Ms Obst’s mood. When questioned about this, she commented:

“That would have been a combination of my observation, and concurring with her reports that she felt her mood was under control at that stage.” [transcript page 468]

393. She believed Ms Obst’s mental condition in December 2006 was such that she would put others in danger if she was driving after 4 December 2006. She said that the gold mail run alone was not responsible for the psychological problems at the time. She thought a combination of things built up. The ankle injury and events associated with that were the major cause of her psychological problems that meant that she was unable to work after 4 December 2007. She commented as follows:

"So a lot of it might have been related to the dealing with the WorkCover system?---Yes, or dealing with her injury, having surgery, recovering, you know, needing crutches, not being able to drive, dealing with the WorkCover system. We were talking about a girl in her early twenties who probably hasn’t had to deal with, you know, with seeing specialists, or operations, and the WorkCover system before, so it would have been a fairly difficult time for her over that 12 months and I think that would have played a part in the development of the psychological injury over that time. But, again, it didn’t reach a crisis point until around about the end of November.” [transcript pages 482-483]

394. Dr Stark was firmly of the view that Ms Obst currently wants to return to work and that there was no malingering or feigning illness on her part.
395. She expressed the view that there was a period of time directly after Ms Obst’s suicide attempt on 21 March 2007 where her psychological condition would have rendered her unfit for work.

Dr Bastian

396. Dr Bastian is a qualified consultant in rehabilitation medicine. His training incorporated the study of pain medicine.
397. He prepared medico-legal reports with respect to Ms Obst, dated 15 November 2007 (T66), 23 March 2009 (Exhibit A10) and 3 April 2009 (Exhibit A10). He also gave evidence to the Tribunal.
398. His first report of 15 November 2007 sets out the symptoms that Ms Obst was suffering at the time that he first saw her. At the time she complained of a constant dull ache in her left ankle with increased pain after weight bearing. She was using Panadeine Forte to manage the pain.
399. He told the Tribunal that when he first saw Ms Obst in 2007, he observed colour changes in her left foot in that her foot was reddish compared to the other foot. He also observed a temperature difference between her left and right foot. He considered that a diagnostic test, which showed a one degree difference in temperature between the right and left foot, was significant. His opinion at the time was that Ms Obst suffered from CRPS, secondary to the ankle injury.
400. He saw her on a second occasion in early 2009. He considered that her condition had improved and she still fitted the criteria for CRPS. He suggested some nerve conduction studies.
401. Dr Bastian corrected a typographical error in his report of 23 March 2009 where he had assessed Ms Obst as having a whole person assessment of impairment of 8 percent using the Comcare Guide. He said that using the combined charts, he believed that the impairment is actually 11 percent (Exhibit A10).
402. He said that he considered alternate explanations for the cause of symptoms, but remained of the view that CRPS was the condition from which she was suffering when he first saw her.
403. He had seen the video surveillance evidence, but he said that it did not at all alter his opinion. Her gait pattern had improved by 2008 which correlated with his own clinical findings when he consulted with her on a second occasion. He thought that she fitted the base line criteria of the Association Study of Pain Criteria. He also thought that there may be an issue of compression of the common peroneal nerve which was causing cramping in Ms Obst’s left calf and numbness in her fourth and fifth toes. This could have arisen as a result of her gait alteration over time and could well be caused by nerve irritation.
404. He had read a transcript of Dr Cherry’s evidence to the Tribunal and he substantially agreed with Dr Cherry’s evidence. He had also made his own observations of Ms Obst.
405. He considered that it would be impossible for Ms Obst to have faked some of the results that had been produced as a result of the diagnostic testing. He pointed out that you cannot fake a change in temperature between one foot compared to the other and the epidural diagnostic test was also not possible to be faked. He was of the view that her whole history fitted in with a diagnosis of CRPS.
406. He commented that patients with CRPS have symptoms that vary from day to day or week to week, hence alteration in gait at different times and the need to use a walking stick on some occasions, but not on others.
407. He had seen a report from Dr Cullum who had conducted some lower limb nerve conduction studies on Ms Obst in 2009. In that report Dr Cullum had suggested that some of her symptoms were now more consistent with disuse than CPRS. Dr Bastian remained firmly of the view that this was explicable because there had been some improvement in Ms Obst’s condition since he had last seen her, but that the diagnosis remained that of CRPS.
408. He considered she fitted the diagnostic criteria. He referred to the proposed criteria in the article by Norman Harden (Exhibit A6) and said that she fitted that criteria. He had considered all possible alternative diagnoses and excluded them.

Dr David Coyte

409. Dr David Coyte is Ms Obst’s treating psychiatrist. He has also provided two reports and he gave evidence to the Tribunal. His reports were dated 12 September 2007 (T54) and 15 January 2009 (Exhibit A4). The Tribunal also had his complete set of medical notes with respect to Ms Obst (Exhibit A5).
410. In his first report, it is noted that he had received, as part of the background material, the three medical reports of Associate Professor Bauze. He had also received other medical reports from Dr Stark, Dr Dracopoulos and Ms Thornton.
411. In his first report, he sets out the history as obtained from Ms Obst on 3 April 2007 when he first saw her. At the time of him preparing his first report, he had seen her ten times. In that report he outlined the stressors which he considered triggered her depression that he felt she was suffering from at the first consultation. He considered the stressors to be:
     • the injury to the left ankle with little or no response to treatment and then being referred to a pain clinic, but that not happening in a timely way;
     • treatment being stopped and started by her work place;
     • not being able to work as usual; and
     • having been reviewed by Associate Professor Bauze for WorkCover purposes and being subjected to an interrogatory style and labelled as a fraud.
412. He considered that the depression, despair and hopelessness in particular, came on after Associate Professor Bauze’s January 2007 assessment and the termination of her pay which followed.
413. He considered that by June 2007 her mood had slowly returned to the same levels of depression prior to the suicide attempt and he commenced her on Fluoxetine and gave her “behavioural tasks” to follow (T54/110).
414. His diagnosis was that she suffered from an adjustment disorder with mixed emotions and that by 14 June 2009 these symptoms had worsened to the level of sub-threshold major depression.
415. At that point in time he thought that she might only need to take the anti-depressant medication for a period of six more months and he considered that she needs ongoing psychotherapy of a supportive nature.
416. In his second report dated 15 January 2009, he had the previous reports of Dr Cotton and the further reports of Associate Professor Bauze, Dr Stark, Dr Bastian, Dr Dracopoulos and Professor Cherry to consider. He was continuing to see Ms Obst once every one to three months and she was still using anti-depressant medication. At that time, he reported she did not currently have an active psychological condition, but remained on anti-depressant medication as attempts to cease this had resulted in return of her depressed mood. He considered her major depression to be in remission.
417. In his evidence to the Tribunal, he said that at his first consultation with Ms Obst (T92/629) she gave a history of being stressed and upset for a period of five months or more. She reported symptoms of social withdrawal, irritation, vomiting, anxiety, etc. She told him that she wanted to be able to work, but that her pain and problems with her employer had stopped her from being able to do so and she related at some length that her sense of identity came from working and that she had therefore lost that sense of identity and wanted to get back to work.
418. His opinion was that work was very important to Ms Obst. He commented as follows:

“It was of major significance. I guess it depends on how far you would like me to explore her background, but a lot of her sense of identity was related to being able to be independent and to work to produce that sense of independence, and failing that, has a history of feeling empty and worthless, hence the sense or urgency about having to work, and the importance, and also hence being tainted. That meant for her, being unable to work, being labelled as a fraud.” [transcript page 236]

419. He expressed the opinion that her ongoing depression pre-dated the arrival of Mr Edwards and Mr Gigney on her doorstep on 8 March 2007. He thought that the incidents of March 2007 may have been the trigger for the attempt on her life and in a sense the “final precipitant”, but he considered:

“They were the – I guess, the final precipitants, but there was a background predating that, of her feeling, as she said, depressed, rather hopeless most of the time, prior to that anyway, ...” [transcript page 236]

420. He considered that being told that she was found to be fraudulent or had committed fraud had a devastating effect on her, similar to earlier incidents in her life where she had been abused. He said in this respect he was referring to some early childhood experiences and some of the parenting experiences that she had as a child.
421. In his medical notes (T92/631) he noted some of the history and that she disclosed to him that Associate Professor Bauze used an interrogatory style. She had told Dr Coyte that she considered that there were inaccuracies in Associate Professor Bauze’s report and that he had labelled her a fraud. Dr Coyte said the significance of all of this was that:

“...she felt wrongfully mislabelled, and in fact, abused, and that in spite of her presenting herself in what she felt to be an honest and forthright fashion, felt, as I say, misidentified, abused and mislabelled.” [transcript page 239]

422. He expressed the view that because of her developmental history, it was particularly important to Ms Obst that to feel acceptable and safe, she needed to be physically independent. Hence the need to return to work:

“...to become physically independent, to gain an income, to work, to demonstrate to others that she was sound and worthwhile was a natural pathway for her. In fact, I’m not sure she knew any other pathway of doing it.” [transcript page 240]

423. He described her pre-morbid personality as being shy and independent. He had noted that she liked music, playing guitar and drums, enjoyed water skiing and fishing. He confirmed that this was how she described her life prior to the ankle injury.
424. He commented that again because of developmental issues, she had had experience with authoritative figures earlier in life and that she had found them to misjudge her. She did not really trust authority figures and would be cautious around them and try to appease them superficially, but also try to remain independent away from them.
425. He was asked about a comment in his first report where he talks about her anxiety about being followed and filmed. He considered the effect of this would be to make her feel extremely anxious and to expect some sort of punitive action. He considered that she became increasingly paranoid that someone was forever looking over her shoulder and about to punish her. He said that sense of punishment heightened her paranoia.
426. He said that her experience with aggressive neighbours in 2007 was again an exacerbating feature to her depression. He was referred to a letter that he had written to the SA Housing Trust for her and he said that the exacerbation of symptoms that she was experiencing was caused by the neighbours as that was the dominating experience that she was having at the time. He considered that at the time she still had an underlying depressed mood relating to her ankle injury.
427. She had had a good response to medication.
428. He acknowledged that his notes indicated problems in the relationship between Ms Obst and Cristabel at times. He said it was more difficult for her to get away from the relationship when conflict occurred because she was unable to go to work and assert independence and:

“... therefore would experience the intensity of this conflict much more strongly and feel no way of clearly being able to cope with it, so it was more the other way around, that the underlying problem with not being able to work and feeling depressed and not feeling independent, made her less capable of coping with this sort of low degree of conflict which came and went.” [transcript pages 246-247]

429. It would appear that Ms Obst never talked to him about the Disciplinary Inquiry and it was only from Dr Stark’s letters that he was aware of that.
430. He thought that she was probably no longer suffering from an adjustment disorder by early September 2007 as she had been at that stage on medication for two months. He considered that she was not incapacitated for work as a result of a psychological or psychiatric injury after September 2007.
431. Dr Coyte explained that when he wrote the letter to assist her in obtaining accommodation, he focussed effectively on what the Housing Trust require, which is “what is the problem” with the current accommodation that she was living in.
432. He was aware that she played in a band and actively encouraged it. He was also aware that she assisted her friend in delivering a magazine about music.
433. Dr Coyte said that he would encourage her to do whatever her pain allowed her to do and to do whatever gave her a sense of independence and freedom from scrutiny or authority. With respect to her involvement with magazine delivery, he commented:

“ ... Mentioned that she experienced more pain certainly upon returning from doing that, and from memory, particularly in the night time when she came back from her delivering such, but that she nonetheless managed to do it and I ... thought if she was cleared to do such things, that was a very advisable thing.” [transcript page 264]

434. He understood that she did it with Cristabel, but that on at least one occasion she had done it on her own when her friend was unable to do so. He said his understanding was that even her friend’s father did it a couple of times and it seemed to be what he referred to as “a group effort”.
435. He said he could recall her coming to see him with a walking stick on occasions. He noted that on 23 November 2007 she was walking with a stick and limping. He said that every time he sees her she limps and he said:

“... I noticed every time that I see her she limps and is usually reminded by me that I thought she was supposed to be walking without a limp, whether she liked it or not.” [transcript pages 264-265]

436. He agreed with Dr Cotton’s observations that by late 2008 when Dr Cotton saw her she was generally far more outgoing and not socially withdrawn.
437. When asked as to whether he understood Ms Obst and her friend Cristabel were partners, he commented:

“Yes and no. I don’t think it gets – it hasn’t been explicitly stated to me but it would appear to be the case. I haven’t sought to clarify that.” [transcript page 268]

438. When asked about the period in 2005 when she was prescribed anti-depressant medication, he talked about how significant the episode would have been for her psychologically when her mother locked her in a house. He expressed the view that she had some pre-disposing factors in her personality that meant that she could be subject to sudden bouts of reactive depression and had considered that she had suffered a one-off episode of early depression as a result of the incident with her mother.
439. The Tribunal asked Dr Coyte about aspects of Ms Obst’s presentation when giving evidence. The Tribunal had noted that Ms Obst would appear to go from perfect composure to an inexplicable bout of tears. Dr Coyte commented:

“That is consistent. A particular desire to appease, present well, try to be seen in the right light first up, and go to quite some lengths to do that in terms of trying to present as a good person,... A good child. And independent good person, so that – ... I think because of presenting to any kind of authority figure automatically is linked with feelings of going to be attacked, going to be reminded of being inferior and a reject. And from the history she gave, those experiences went back as far as she could remember in life, to very early childhood, and so those kinds of very early experiences are usually rekindled,... When that cracks you get this horrible stuff underneath, which is that sense of despair and dying, really.” [transcript page 270]

440. He commented that the relationship between Ms Obst and Ms Vinall was troubled, but functional and he thought improving with time. He thought Ms Obst coped with it well.

Dr Cotton

441. The psychiatrist, Dr Cotton, had seen Ms Obst for a medico-legal consultation at the direction of APC.
442. He had prepared two reports in this matter, dated 30 November 2007 and 28 October 2008 (Exhibit R9).
443. When Ms Obst first saw Dr Cotton in 2007, she did not mention to him that she was a member of a band, even though he asked her questions about her general level of function. She had provided responses to his questions that led him to believe that she was quite socially withdrawn, only going out very occasionally. His notes indicated that she had said she had not been to any hotels, clubs, films, out for tea or any other such occasions over the last two years.
444. In his first report he expressed the view that when she ceased work in 2006 she was suffering from transitional symptoms of an adjustment disorder such that there was no impediment to her return to work in March. He said that she then had a further episode of an adjustment disorder reactive to being suspended from work and being called a fraud with again the symptoms settling over a number of months. In his view, it was the rehabilitation decision to change her rostered hours and the nature of her duties that precipitated the upsurge in her emotionality.
445. His second report noted that she was less socially withdrawn on that occasion. In that report, she told him that she “has definitely not undertaken any part-time work, be it of a driving nature or any other” (Exhibit R9). His report noted that she was not in a personal, emotional, or sexual relationship. Her involvement with the band and public performances is mentioned in the report. He thought on that occasion she was not suffering from any significant psychiatric illness or prevented from working as a result. He commented that he thought her adjustment disorder/psychological condition was sequelae of her ankle injury.
446. He described Ms Obst as possibly having a personality that was primed to become upset and distressed over minor matters and this was likely to be as a result of childhood issues. He considered that the initial ankle injury did not cause any psychological issues but that she did become upset and distressed after the gold mail run. He commented:

“... so she got upset with an adjustment disorder. Now, by definition that’s a brief reaction at a point in time with undue and excessive emotional behaviour and distress” [transcript page 383]

447. He thought that she had fully recovered from that episode by the date that Dr Stark certified her fit to return to work and that by then she was “completely mentally normal”. It was only after being accused of fraud that she got upset again. He considered that second episode would have settled within two months.
448. He commented that as soon as the stressor is removed she recovered fairly quickly.

OTHER RELEVANT EVIDENCE

449. There was some focus on the lead up to the Disciplinary Inquiry and the period between 8 March 2007 and the actual hearing. Mr Edwards and Mr Gigney arrived unannounced at Ms Obst’s home to deliver the letter advising of the Inquiry. There was disagreement as to whether Ms Vinall was present at the time. Mr Edwards and Mr Gigney both gave evidence that she was present at the time. Ms Obst and Ms Vinall gave evidence that she was not present at the time and she subsequently attended at the premises to provide support to Ms Obst.
450. Mr Gigney gave evidence of the conversation with Ms Obst in early February 2007 when she mentioned problems with her ankle, but said that she did not mention that she was having any emotional problems at the time. It would appear Mr Gigney had no involvement with the disciplinary process.

EVIDENCE OF MS DENISE ISOLA

451. The person who convened the Disciplinary Inquiry, Ms Isola gave evidence and provided a statement to the Tribunal (Exhibit R15). In her statement, she commented that she had several telephone contacts with Ms Obst prior to the date of the hearing and she considered that she was uncooperative and aggressive in her attitude and that when she told Ms Obst it would be unusual for her to bring her doctor to the hearing, she “became aggressive”. She also referred to a letter from Ms Obst of 13 March 2007 which she considered to be a criticism of her.
452. In her evidence to the Tribunal she confirmed her statement. She elaborated on a comment made by her in her statement that Ms Obst was dramatic and excessive in her demeanour. She said that Ms Obst was quite aggressive in her statements about the surveillance. She did not have a scribe at the hearing so there was no formal record.
453. Ms Isola was referred to the Employee Counselling and Discipline Policy and Procedures which was an attachment to her statement. In that policy, it states that when applying that policy, regard must be had to the relevant Enterprise Bargaining Agreement which provided for a three tier disciplinary process of:
     • face-to-face feedback;
     • counselling; and
     • the disciplinary inquiry itself.
454. She agreed the Disciplinary Inquiry is used for very serious breaches of the Standards of the Code of Ethics or repeated breaches. There is discretion as to which of the three methods is used.
455. She described the process of the hearing as not particularly formal and as “just an interview” with the person, a fact finding mission.
456. She agreed that in deciding whether to put someone through that process, their psychological make-up should be considered and you would want to ensure that they were psychologically well enough to go through the process.
457. Ms Isola had only conducted one or two inquiries prior to Ms Obst’s hearing.
458. She confirmed that Ms Obst asked to be given a copy of the surveillance evidence prior to the inquiry and agreed that the letter advising Ms Obst of the Disciplinary Inquiry did not provide particulars of her alleged misrepresentation and embellishment in relation to Associate Professor Bauze, despite the relevant policy requiring that in the interests of natural justice the person who is the subject of the inquiry must be provided with accurate particulars and not broad accusations so that they are aware of the case against them.
459. She said that she may have told Ms Obst that she would go through the DVD with her at the hearing because that was the impression that she had at that stage, but agreed that the DVD was not made available at the hearing. She agreed that Ms Obst sounded agitated prior to the hearing and told her that she was feeling extremely pressured by the disciplinary process. Ms Isola was aware that one of her compensation claims related to suffering an adjustment disorder with depressed mood. She was aware of that prior to the hearing.
460. She did recall that during the hearing Ms Obst told her that Associate Professor Bauze told her that she may end up in a wheelchair if she continued like this and that Ms Obst had produced Associate Professor Bauze’s report with hand annotations on it.
461. It was evident from her evidence that Ms Isola had taken a very firm view as to the way in which the inquiry should continue. She wanted it to continue on a face-to-face basis because of credit issues and her need to experience the demeanour of the witness.

OBSERVATION EVIDENCE

462. Ms Hardham gave evidence about observing Ms Obst on 22 June 2008 when she performed at the Grace Emily Hotel in Adelaide in 2008. She observed that Ms Obst was not using a walking stick. She set up her own drum equipment, taking possibly two trips to get the equipment on to the stage which was up one step. She observed the band playing for 43 minutes and that Ms Obst was using her left foot on the high hat, although her vision was obscured and she could not actually see how Ms Obst used her foot.

THE SURVEILLANCE EVIDENCE

463. The Tribunal received the surveillance evidence and after the hearing spent some time viewing that evidence.
464. The surveillance evidence of the trip to Mildura did appear to show some genuine inconvenience and weakness in her left limb in walking, although the limp did appear to be exaggerated when attending at Associate Professor Bauze’s rooms.
465. The footage showing her attending at Dr Cotton’s rooms did suggest that she was embellishing her limp at the time, although careful observation did indicate a slight altered gait at all times.
466. The fact that Ms Obst used a stick on and off was consistent with her evidence and consistent with the evidence that it was at the time she had commenced receiving treatment at the Pain Clinic. The Pain Clinic had provided her with a stick and told her to use it from time to time when walking distances.
467. The surveillance evidence with respect to her driving the van to collect the magazines in 2008 did show her move at what appeared to be a slow jogging pace for a very short distance. She did appear to put a sack truck in the blue van and she was clearly on her own. This is not necessarily inconsistent with her assertion that her ankle problems had considerably improved by mid to late 2008.

THE PARTIES’ CONTENTIONS

468. The applicant contends the following:
     • that Ms Obst sustained an ankle injury in the course of her employment; and
     • that there was no basis for the respondent to cease present liability with respect to that injury as she remained partially incapacitated for pre-injury duties and continues to have that partial incapacity and she has had ongoing medical expenses related to her injury.
469. The applicant argues that the period of adjustment disordered suffered by Ms Obst between 4 December 2006 and 1 March 2007 was caused by her employment. The applicant submits that it was caused not only by the experience of the gold mail run, but by events relating to her ankle injury which had built up in the latter half of 2006. They rely on the evidence of Dr Coyte and Dr Stark and, to some degree, Dr Cotton in that regard.
470. The applicant contends that Ms Obst’s further depression was then precipitated by the events that occurred in March 2006, such that she continued to be totally unfit to return to employment because of her psychological injury until, on Dr Coyte’s account, approximately August or September 2007. The applicant contends that that second episode of an adjustment disorder with depression should be covered by her claim of 16 January 2007 and that it was a sequelae to her ankle injury.
471. The applicant argues that the second bout of depression was not caused by a reasonable Disciplinary Inquiry and is therefore not subject to the exclusion contained in the definition of “injury” in the SRC Act as it was at the time. They contend that the whole inquiry process was not reasonable.
472. The applicant contends that Ms Obst and her lay witnesses are to be believed and that there is significant objective medical evidence that she suffers from the conditions for which she seeks compensation.
473. With respect to her ankle injury and the ongoing impairment and the claim for CRPS she relies on the evidence of Dr Dracopoulos, Professor Cherry, Dr Bastian, and Dr Stark. The applicant rejects the argument that the Comcare Guide should be used to diagnose CRPS and says that it is a guide to assessment of permanent impairment and not for diagnostic purposes.
474. The respondent contends that the applicant is an unsatisfactory witness who has exaggerated her extent of incapacity and is dishonest. They point to the inaccurate history given by her to doctors, for example her failure to tell Dr Cotton about prior treatment for depression prior to the ankle injury. Her depiction of herself to Dr Cotton as having a normal happy childhood when it appears that is not what she has reported to Dr Coyte and her alleged misrepresentation of her social life and friendships and activities to Dr Cotton.
475. They point to her failure to tell Associate Professor Bauze about her impending trip to Canberra as a very major omission and also her alleged failure to tell Associate Professor Bauze about her involvement with the band.
476. The respondent relies on the surveillance material and her omissions to make certain statements to doctors in their contention that she should not be believed and that she was fit to return to employment on a graduated basis from the date of the gold mail run onwards.
477. The respondent contends that her claims for compensation for physical injury, permanent impairment and psychological injury should be rejected.
478. They referred to her claim of permanent impairment signed on 20 May 2008 (T71/172-181) as being what they refer to as “a prime example of her dishonesty”. They point to her portraying herself as an invalid in that document at a time when they assert she was really quite fit and well and able to get on with her life. They point to the fact that at this time she was regularly practising and playing in bands and assisting Ms Vinall in the delivery of magazines. They say that in that application for impairment she has exaggerated both pain and mobility issues and gives a false impression as to her level of day-to-day functioning and socialisation.
479. The respondent refers to her demeanour in the witness box as being histrionic. They say that her explanations for what may appear to be inconsistencies in her presentation on the video surveillance are simply convenient lies. They point to numerous examples of inaccuracies, for instance her telling a psychologist at the Flinders Medical Centre that she did not take drugs, whereas in April 2007 she had told Dr Coyte that she had no marijuana for three months (T92/633). Later in that year it was noted by Dr Coyte that her use of marijuana was low.
480. They point to her not being entirely direct about her relationship with Ms Vinall in that she told Dr Cotton that she did not have a relationship with her girlfriend and that she was not in a personal, emotional or sexual relationship. Their written submissions detail what they say are the numerous mistruths put forward by Ms Obst.
481. The respondent says that Associate Professor Bauze’s evidence which rejects the diagnosis of CRPS should be preferred to that of the other medical witnesses that gave evidence with respect to the ankle injury. They say that the criteria to be used for the diagnosis of the condition should be those set out in the Comcare Guide at page 105 and that Ms Obst simply does not fit those criteria.
482. The respondent also raises the jurisdictional issue as to whether the Tribunal can consider incapacity for work subsequent to the determination of 5 March 2007 given that Ms Obst has not lodged any claim alleging an injury arising from the disciplinary process or from events that post-dated her being certified by her own doctor as being fit to return to her employment in March 2007.

THE JURISDICTIONAL ISSUE WITH RESPECT TO THE PERIOD OF PSYCHOLOGICAL INCAPACITY BETWEEN MARCH AND MID 2007

483. The Tribunal must first determine whether it has jurisdiction to deal with the psychological injury that it seems was precipitated as a result of the events of March 2007.
484. Some time was spent in evidence dealing with the Disciplinary Inquiry and with the issues of whether the process was reasonable and Ms Obst’s mental state from March 2007 onwards. Nevertheless, there is the issue of whether the Tribunal can have regard to that period given that it was not covered by her first claims and that Dr Stark had certified her fit to return to work on 1 March 2007, having recovered from the psychological injury.
485. It raises the issue of whether the depression, which it appeared manifested once more and quite severely by late March 2007, was effectively a new injury and a new claim should have been lodged with respect to that injury.
486. The reconsideration, which is the decision that the Tribunal is reviewing with respect to the claim of January 2007 (T53/101-107), limits consideration to considering the material that the original delegate considered in the reviewable decision of 5 March 2007.
487. This Tribunal can only review reviewable decisions (s 64 of the SRC Act). These are reconsideration decisions made under s 62 of the SRC Act.
488. The leading authority in this area is Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84.
489. In that case the Court held that the power of the AAT, under s 43(1) of the AAT Act, are powers to review “the reviewable decision” and not powers that may be exercised at large.
490. The first consideration of Ms Obst’s claim for rehabilitation and compensation for a psychological injury lodged in January 2007 was made was on 5 March 2007 at a date after her doctor had certified her as having recovered completely from that first bout of adjustment disorder with depressed mood.
491. The evidence points clearly to a new and second episode of adjustment disorder with depression arising at some stage in March 2007, triggered by events that post-dated both the initial determination and her being declared fit to return to work. Particular and specific issues arise in the context of that second episode, including that of whether a reasonable disciplinary process has contributed in some degree to the second episode.
492. The reconsideration confined itself solely to the events of the gold mail run and the conference room shift and the first episode of depression that was certified as having resolved in 2007 prior to a second bout of an adjustment disorder. It is the Tribunal’s view that this second episode of psychological injury should be the subject of a separate claim if Ms Obst claims it is compensable.
493. It is the Tribunal’s view that it does not have jurisdiction to consider the second episode of adjustment disorder with subsequent depression within the ambit of the claim for psychological injury that is currently before the Tribunal. The reconsideration did not extend to that episode at all such that it could enliven the Tribunal’s jurisdiction to review it.

DSICUSSION OF THE EVIDENCE AND ISSUES OF CREDIT

494. The evidence was comprehensive. Ms Obst’s credibility is central in this matter as well as the credibility of Cristabel Vinall, Frances Vinall and to some extent Associate Professor Bauze.
495. With respect to Ms Obst, the Tribunal is satisfied that she did have a tendency to embellish and manipulate aspects of her history that she choose to give to doctors to maximise her claim. She was involved in her compensation claim for some time and it is probable that her fear of losing her claim and of scrutiny and of surveillance influenced the way she chose to represent herself at times.
496. The Tribunal considers that aspects of her evidence, for example, her claim that she never accepts payment for band performances or for the assistance that she gives Ms Vinall on the magazine run is probably not accurate and may be driven partly by a fear of consequences for any other entitlements she is receiving. Her presentation to Dr Cotton when she depicted a socially withdrawn lifestyle was also not accurate at that time. Her claim that she was involved in no work at all, not even voluntary work, was also misleading.
497. Nevertheless, she presented plausibly in many other ways and the Tribunal considers that a great deal of her evidence was accurate, albeit with perhaps a slightly dramatic edge to be description of her condition or her experiences at the time. There is considerable medical and objective evidence to support aspects of her claim that she continue to have some problems with her ankle.
498. It is probable that she deliberately chose not to tell Associate Professor Bauze that she was about to leave on an interstate holiday as she feared that it would be interpreted adversely given that she was off work on compensation payments at the time. One can also only speculate as to what may have been said to her by Frances Vinall who had seen Associate Professor Bauze previously. His comments about Cristabel in his earlier report probably also made her cautious.
499. The Tribunal is satisfied that on occasions in the surveillance footage, and in particular when attending upon Associate Professor Bauze’s rooms and attending upon Dr Cotton’s rooms, Ms Obst’s limp seemed to worsen and there was a degree of exaggeration of the limp probably because of the situation that she was in and a concern on both occasions that she was being observed.
500. Based on what Dr Coyte has told the Tribunal, Ms Obst’s natural demeanour is to effectively present to the world as though she is in control and is “a good girl” and this could explain why, for example, she did not disclose details of her childhood to Dr Cotton that she had already disclosed at some length to Dr Coyte. She may have thought that disclosure of previous emotional problems would be detrimental to her case.
501. The Tribunal is satisfied that whether consciously or unconsciously she was not entirely frank with Dr Cotton and Associate Professor Bauze because of her fear that they may turn on her if she gave them an entirely candid account of her activities or of her difficult childhood. It is also possible that the reports do not completely accurately set out the dialogue that occurred between Ms Obst and the relevant practitioner at the consultation.
502. There are inconsistencies in Ms Obst’s evidence. The events that have been discussed occurred some years ago. She did on occasions attempt to reconstruct situations to explain apparent inconsistencies in her presentation. For example, she claimed that she had a distinct recall that on the day that she saw Associate Professor Bauze in January 2007 that it was a very hot day and that the day following was not as hot, hence the removal of the ankle brace. Meteorological evidence established that was not the case (Exhibit R20). This appeared to the Tribunal to be an attempt by her to find some plausible explanation for the Tribunal on the face of the respondent’s attack on her that she was actively dishonest and feigning symptoms.
503. Dr Coyte’s evidence provided the Tribunal with a much better understanding of Ms Obst’s underlying personality. Dr Coyte and Dr Stark are both very experienced practitioners and both have had extensive involvement with her and consider her to be a genuine and credible person.
504. Overall, the Tribunal accepts much of Ms Obst’s evidence but with the reservation that, on occasions, she has dramatised symptoms and has not been entirely frank when dealing with medico-legal consultants.
505. Mrs Frances Vinall recalls very little of the meeting with Associate Professor Bauze other than that which the Tribunal has outlined in its evidence. She then failed to return to the Tribunal for the purpose of being cross-examined as to whether she had any motive to try to discredit Associate Professor Bauze as it transpired that he had previously seen her with respect to a workers’ compensation matter. In the circumstances, the Tribunal has decided to disregard Frances Vinall’s evidence.
506. Ms Cristabel Vinall supported her very close friend in her evidence. She clearly has a motive to support Ms Obst in her evidence. It is difficult to believe that she has never discussed the evidence with her friend and that she has never seen subsequent reports of Associate Professor Bauze. There was an element of construction in some of her evidence, for example, her recall about Ms Obst crying inconsolably after leaving Wagga when Ms Obst did not give this evidence herself. Her evidence about Ms Obst’s involvement in the magazine delivery business was somewhat evasive. She gave good descriptive evidence as to how Ms Obst manages to play her drums and when asked if she had effectively taught Ms Obst about the symptoms of CRPS, her response was that it was not in her own reading material as a remedial therapist and she had not been familiar with it.
507. Associate Professor Bauze is an experienced medico-legal consultant. He is a reputable doctor who obviously has some differences with the pain speciality professional about CRPS. His specialisation is that of orthopaedics. He is a direct and forthright person in his presentation and he may have seemed intimidating to Ms Obst. He admits using the concept of “invalid” when interviewing Ms Obst in January 2007.
508. An issue for the Tribunal to consider is whether the evidence of Associate Professor Bauze that Ms Obst’s condition does not satisfy the criteria as out in the Comcare Guide is to be accepted above that of two specialists who disagree with those guidelines and consider that she has CRPS.
509. Associate Professor Bauze was certainly drawn into by the respondent’s belief that Ms Obst was a fraud. This was as a result of the surveillance evidence, written surveillance reports and at least one, if not more, discussions he had with the respondent’s solicitor. He observed some indicators of CRPS, but having decided that Ms Obst was not to be believed, he appeared to want to exclude any objective symptoms as being possible indicators. He is sceptical about CRPS and about pain clinics. He had made up his mind that she was in some way feigning her symptoms.
510. Dr Stark was a good witness. She is clearly a very good medical practitioner who engages closely with her patients. Her medical notes provide a contemporaneous history of many of the events in Ms Obst’s life between the date that she first commenced seeing her in March 2006 and the date when the notes before the Tribunal finished in September 2007.
511. She was genuinely astonished at the accusations by APC that Ms Obst was not genuine and was feigning her illness. She was adamant Ms Obst did not ever appear to have a compensation motive in her dealings with her and her professional assessment is that Ms Obst has been honest and straightforward at all times in her presentation.
512. Dr Coyte gave clear and precise evidence. His evidence was entirely supportive of Ms Obst and of the existence of a psychological injury that was caused as sequelae to her ankle injury.
513. Dr Cotton and Dr Bastian also gave straightforward evidence and were both supportive of Ms Obst having suffered a psychological injury in the case of Dr Cotton and an ankle injury in the case of Dr Bastian.

FINDINGS OF FACT

514. The Tribunal made the following findings of fact on the balance of probabilities.
515. The Tribunal refers to the non contentious matters set out at the beginning of this decision and makes findings of fact in accordance with paragraphs 25 to 106 of this decision.
516. Ms Obst sustained an ankle injury in the course of her employment in December 2005. Prior to this injury she was an active person who enjoyed physical activity and also her employment as a driver with APC.
517. Ms Obst suffered from a minor depressive episode that was unrelated to her employment in 2005. It appears that had fully resolved by June 2006.
518. In mid September 2006 Ms Obst joined a band as their drummer. Thereafter she attended band practices on a reasonably regular basis. She was involved in public performances with the band from 2008 onwards. She practised on occasions with the band from 2006 onwards. There is no evidence that her ankle injury has in recent times affected in any significant way her ability to participate in this activity.
519. Ms Obst has developed a way of playing drums that avoids her using her ankle to any significant degree. The Tribunal accepts as being accurate her description as to how she uses her left foot when playing the drums. She still suffers swelling and pain in her ankle on occasions as a result of her drumming activities.
520. In September 2006, when Ms Obst was moved to the conference room in the transport section of APC, her perception was that she was being isolated and was to be observed as her work was not up to performance. This caused her some genuine distress and anxiety at the time.
521. Between September and November 2006, when Ms Obst ceased work, she continued to suffer persistent pain and intermittent swelling in her left lower limb as a sequelae to the original ankle injury. She also suffered limitation of ankle movement and was unable to drive a manual vehicle at all. Her ankle showed little improvement despite physiotherapy and exercise. She was required to take medication to manage her sometimes significant level of pain.
522. The pain in her ankle fluctuated and was sometimes constant and sometimes created difficulty with her sleeping.
523. In October 2006, at the suggestion of Dr Stark, she attempted to drive her manual car to see how she managed. She tried to do so on one occasion, but with limited success because of the throbbing in her ankle after the use of her foot on the clutch.
524. In late November 2006, the pain in her foot was worsening. She developed a rash in late November which was subsequently diagnosed as a stress rash by her Dr Stark. She had the perception that there was some pressure on her at work to resume driving duties.
525. By late November 2006, a number of stressors had begun to affect Ms Obst’s psychological state. They were the failure of her ankle injury to apparently improve for reasons that she did not understand, her feeling that she was being scrutinised at work, the feeling that people considered that her work was inadequate and ultimately her feelings of poor self worth when she carried out the gold mail run on 27 November, but could not carry out any active loading and unloading tasks associated with the run.
526. Ms Obst was also unhappy that after the gold mail run she had to sit idle in the office until 8.30 pm when she felt that if she could start her shift earlier she could be more productive in her working hours.
527. Ms Obst suffered an adjustment disorder with depression from late November 2006 until early March 2007.
528. In December 2006, Ms Obst became aware that she may be under surveillance and that someone may be following her on occasions. This caused her further distress.
529. Ms Obst was encouraged by her general practitioner to go to Canberra to spend time with her father in January 2007. The opportunity arose for her to accompany Ms Vinall on a driving trip to Canberra as Ms Vinall was then going on to Sydney. Her father had left Adelaide in early 2006 to go and live in Canberra. He represented her close family. Dr Stark thought it would be good for her mental state to take this opportunity.
530. When Ms Obst filled out the DASS questionnaire and discussed her case with Dr Stark on 4 December 2006, she genuinely reported the symptoms that she felt she was experiencing at the time to the doctor.
531. When Ms Obst attended on Associate Professor Bauze in January 2007, her failure to tell him that she was about to travel to Canberra was likely to be because of her concern that he may view her claim adversely if he knew that she was about to go on “a holiday”.
532. The DVD surveillance evidence of Ms Obst on 22 and 23 January 2007 is not at all inconsistent with her continuing to have problems with her lower left limb and ankle at the time.
533. Ms Obst became aware that a vehicle was following her and Ms Vinall in either Mildura or Wagga. This was a very frightening experience for her and she genuinely terrified by the realisation that she and Ms Vinall were being followed by an unknown person. This caused her fear, sleeplessness and paranoia.
534. Ms Obst’s psychological situation had fully resolved by 1 March 2007 such that her doctor certified her fit to return to work on modified duties, although she was still anxious about returning to work.
535. Mr Edwards and Mr Gigney coming to her home on 8 March 2007, to deliver a notice of suspension and to advise her of a pending inquiry, caused her distress because of the way in which they arrived without prior warning and because of the allegation that was being made that she was “a fake”.
536. Ms Obst was extremely anxious about the Disciplinary Inquiry thereafter. She asked to take her general practitioner, Dr Stark, with her to the Disciplinary Inquiry, but that was refused. She requested to see the surveillance evidence that APC were relying on prior to the Disciplinary Inquiry, but that was refused.
537. The letter of 8 March 2007, which outlined the reasons for the Disciplinary Inquiry, did not provide sufficient details for her to anticipate what was going to be asked of her at that hearing.
538. Ms Obst attempted suicide in late March 2007. At the time she was not taking any anti-depressant medication. Dr Coyte did not commence her on any anti- depressant medication until June 2007.
539. Ms Obst first exhibited symptoms of CRPS in July 2006 at a time when she had not recovered as well as was anticipated from her surgery. She reported symptoms to Dr Dracopoulos consistent with the possibility of that condition.
540. Ms Obst consistently suffered symptoms that were a sequelae to her original accepted ankle injury throughout 2007, 2008 and continuing. Those symptoms have improved, but she still has a level of disability in her lower left limb and ankle.
541. Ms Obst has suffered other stressors in her life from the first half of 2007 onward, including significant problems with neighbours in mid 2007 that resulted in her ultimately deciding to move from her townhouse in September 2007, some volatility in her relationship with Ms Vinall and personal financial difficulties.
542. Ms Obst has been in a sound psychological state and recovered from the second bout of depression from, at the latest, September 2007 and she has, on her own account, been fit from a physical perspective to return to her driving duties, with appropriate modifications for her ankle problems, since March 2007. She has not returned because of her suspension pending a Disciplinary Inquiry being completed.
543. Ms Obst’s symptoms fluctuate. She continues to take pain killing medication on a regular basis because of aching that returns in her left ankle. She takes considerably less medication then she took in the first 12-18 months after the injury.
544. Ms Obst has pursued rehabilitation in an attempt to improve her left leg/ankle condition. She has had physiotherapy when she has been able to afford it or when it has been covered by APC. She has used swimming, light gym work and massage in an attempt to ease the symptoms from which she suffers.
545. Because of financial constraints, she has not been able to continue with gym membership and with swimming in private pools as she has been reliant on Centrelink income since the middle of 2007.
546. Ms Obst found the Disciplinary Inquiry of March 2007 distressing as she did not have a good understanding of what was going to be asked of her and became confused, angry and distressed during the hearing, such that she left the hearing.
547. There is sufficient medical evidence based on pain clinic testing, medical observation and on the history of the matter, to find on the balance of probabilities that Ms Obst did continue to suffer a condition diagnosed by the pain experts that gave evidence as being CRPS as a result of, and as a sequelae to, the original ankle injury.
548. Ms Obst continues to suffer from intermittent aching and pain in her left lower limb. She still has some minor difficulties with stairs and with going up and down hills.

CONSIDERATION AND APPLICATION OF THE LAW

549. There is no dispute with respect to liability in relation to the original ankle injury.

THE DETERMINATION TO CEASE LIABILITY

550. The determination of 5 March 2007 ceased liability in relation to the ankle injury, being liability with respect to payment of medical expenses and in relation to periods of incapacity arising out of that injury. The reason that was given was that her ongoing presentation as being incapacitated by the original injury was feigned and the injury had run its course and resolved. This is implicit in the original decision and in the reconsideration which supports the original decision.
551. The objective medical evidence establishes that as of 5 March 2007 Ms Obst continued to suffer the effects of the original ankle injury sustained in December 2005 and the aggravation in February 2006. She continues to have some ongoing disability arising from the injury.
552. The Tribunal is satisfied that the decision to cease present liability under ss 16 and 19 of the SRC Act with respect to ankle injury is incorrect and should be set aside. The Tribunal is satisfied that Ms Obst continued to suffer ongoing pain discomfort and disability directly related to the original ankle injury post 5 March 2007. This required ongoing medical treatment by way of medication, referral to the Pain Clinic, physiotherapy, rehabilitation programs etc.
553. Despite her failure to tell Associate Professor Bauze that she was about to travel interstate and despite her apparent good cheer on occasions, she had ongoing difficulties with her ankle that required ongoing medical treatment and rehabilitation. The Tribunal therefore sets aside that aspect of the reconsideration that ceased present liability with respect to her ankle injury under ss 16 and 19 of the SRC Act on 5 March 2007. The Tribunal notes that there are no periods of incapacity relating to the ankle injury alleged beyond that date.
554. Ms Obst has stated most specifically that she had the capacity to go back to alternate duties as of 1 March 2007 and that any incapacity to work thereafter related to her psychological condition.

CLAIM FOR COMPLEX REGIONAL PAIN SYNDROME

555. There was some argument as to whether Professor Cherry’s diagnosis was correct, given that Ms Obst did not fit within the diagnostic criteria set out in the Comcare Guide at page 105. The Comcare Guide requires that eight of the findings set out in figure 9E on page 106 be present for “a diagnosis of CRPS”.
556. The Comcare Guide is referred to in s 24 of the SRC Act which relates to applications for permanent impairment. Section 24(5) sets out that “the degree of permanent impairment of the employee” shall be determined “under the provisions of the approved Guide”.
557. Professor Cherry was quite scathing about the Comcare Guide and the criteria set out. He said they should not be used for diagnosis. He said they referred to cases of long-standing and severe CRPS and that a person could develop CRPS well before reaching the level of dysfunction applied by the Comcare Guide.
558. The Tribunal has considered the arguments put forward by both parties and is satisfied that the Comcare Guide does relate only to assessments for permanent impairment when a fairly advanced level of disability and significant objective signs are considered to be necessary to establish that a syndrome such as CRPS is sufficiently chronic that it becomes compensable under s 24 of the SRC Act. It is an easy condition to feign where subjective history is important in diagnosis. The Comcare Guide, in using the criteria that is does, is looking at a lot of objective indications before a permanent impairment assessment can be made.
559. There is disagreement in the profession about the criteria for diagnosis, but the Tribunal notes that the proposed criteria in the article of Norman Harden were considered appropriate by Dr Bastian and Professor Cherry for a diagnosis and that Ms Obst fits those criteria.
560. The Tribunal therefore finds that it is not bound to use the Comcare Guide for the purposes of diagnosis. However, if Ms Obst were to endeavour to make a claim for permanent impairment under s 24 of the SRC Act with respect to the condition of CRPS, she would find herself subject to the diagnostic criteria in the Comcare Guide.
561. The Tribunal is satisfied for the reasons already set out that as a direct result of the ankle injury Ms Obst went on to develop the condition of CRPS as currently understood by the pain specialist profession. That condition has resolved to a large degree, but she continues to exhibit some symptoms of ongoing ankle pain.
562. The Tribunal sets aside the reconsideration by the senior claims officer of 22 November 2007 with respect to CRPS and finds that liability in relation to her accepted claim for her ankle injury should include liability for CRPS.

CLAIM FOR PERMANENT IMPAIRMENT WITH RESPECT TO HER ANKLE INJURY

563. Ms Obst’s claim for permanent impairment arising out of her ankle injury is to be considered under s 24 of the SRC Act.
564. The senior claims officer who rejected her claim did not accept that she had a compensable injury, but found that if she did, she did not have a disability such that her impairment reached the requirement of a minimum 10 percent required by the legislation.
565. The Tribunal has already set out the findings with respect to the symptoms from which she continues to suffer. Even Associate Professor Bauze acknowledges that she is likely to continue to have ongoing residual disability arising out of what he considers to have been a severe sprain of her ankle, which occurred in the course of her employment.
566. The Tribunal is satisfied that in accordance with s 24(2) of the SRC Act, the ongoing impairment in Ms Obst’s ankle is permanent. At the date of the hearing it was more than three years since the original injury. There has been considerable improvement in her condition, but the general medical consensus is that there remains ongoing residual disability arising from the original injury. She has undertaken various forms of rehabilitative treatment for the impairment and will probably need to continue to do so. It is unlikely that the problems with her ankle will ever fully resolve.
567. Dr Bastian considered the issue of percentage impairment under the relevant table. The Tribunal refers to his calculations set out in his report of 23 March 2009 (Exhibit A10). The Tribunal is satisfied that he has correctly used the combined charts under the Comcare Guide and agrees that based on all the evidence available, his calculation of her impairment as being 11 percent is correct.
568. It was open to the decision-maker to determine the percentage of her ankle impairment had he accepted that Ms Obst had a genuine compensable injury. The Tribunal is satisfied that it has jurisdiction to make the finding with respect to percentage impairment as that finding was available to the decision-maker at the time. The Tribunal finds that Ms Obst has an 11 percent impairment of her left ankle arising out of the injury sustained in the course of her employment in 2005.
569. The Tribunal sets aside the decision of 30 September 2008 and substitutes the decision that Ms Obst does have a permanent impairment of her left ankle arising as a result of the ankle injury and its sequellae and finds that under the combined impairment table, she has an impairment of 11 percent.

THE PSYCHOLOGICAL INJURY

570. The test for the Tribunal to apply when determining whether her adjustment disorder with depressed mood is compensable is to consider whether it was contributed to in a material degree by her employment with the Commonwealth (s 14 of the SRC Act – the definition of “disease”).
571. The respondent has pointed to both the fact that Ms Obst suffered a depressive episode in late 2005 and the fact that she was already taking medication around the time that she sustained the original injury as indicators that any depressive illness may well have pre-dated the injury or that other factors contributed substantially to any condition that she suffered from. Alternatively, they argue that she is not genuine just as they assert that she feigned injury. They assert that she also feigned the psychological injury that she suffered between December 2006 and March 2007.
572. The Tribunal has already found that Ms Obst suffered an adjustment disorder between late November 2006 and early March 2007. Did her employment at APC materially contribute to this episode?
573. In Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795 in the context of considering whether an event could amount to a material contribution to an injury, von Doussa J commented as follows:

“There is no requirement at law that the interpretation plays on the incident or state of affairs by the employee or the employee’s perception of it, it is one which passes some qualitative test based on an objective measure of reasonableness. If an incident or state of affairs actually occurred and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements to the definition of disease are fulfilled.”

574. The Tribunal is satisfied that the events at work and arising out of her ankle condition between September and November 2006 did contribute to her ankle condition, even if those that she worked with did not appreciate that by moving her to the conference room or by telling her that her work was not satisfactory, they may be putting her under psychological stress. Both the psychiatrists who gave evidence in this matter explained that she had an underlying vulnerability that made her more re-active than some to psychological stressors.
575. The Tribunal must be satisfied that the injury is contributed to or aggravated in a material degree by her employment. In the case of Comcare v Sahu-Khan [2007] FCA 15 the Federal Court considered the meaning of “contributed to in a material degree by the employee’s employment”.
576. In Sahu-Khan the Full Court commented as follows (at [16]):

“16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.”

577. Despite her injury, Ms Obst appeared to manage well until things began to go wrong for her and her ankle did not make the recovery that she anticipated after the surgery. The evidence of Dr Stark is that her mood was stable by mid 2006 and thereafter it would appear that Ms Obst was pursuing attempts at rehabilitation and on the whole trying quite positively to get back to work.
578. The move to the conference room created a perception in her mind that she was being scrutinised by her employer and that she was not fulfilling her duties appropriately.
579. The Tribunal is satisfied, based on all the evidence, that although it may not have been an entirely reasonable interpretation of the move to the conference room, Ms Obst was genuinely distressed at the suggestion that she was not doing her work properly and that she needed to be scrutinised. She was in an increasingly emotionally distressed state at the time because her ankle injury was not resolving and it was continuing to cause her problems such that she could not return to her pre-accident work.
580. Although the respondent had pointed to possible other stressors in Ms Obst’s life, such as difficult neighbours and possible differences in her relationship with Ms Vinall, there is no evidence that anything outside her employment was happening in 2006 that was a contributor to the eventual adjustment disorder with depression that she suffered between December 2006 and March 2007.
581. Dr Coyte identified all the stressors that he considers were operating on her at the time as follows:
     • her ankle was not improving;
     • she was frustrated at it not improving;
     • she was in quite significant pain at times;
     • the move to the conference room made her feel she was being scrutinised; and
     • she developed the perception that she was not trusted by her employer.
582. Because of her underlying personality this made her feel increasingly emotional and vulnerable.
583. She had hoped that she could return to driving duties and had even attempted to drive a manual vehicle herself in October 2006 in the hope that she could get back to normal driving duties, but discovered that she could not comfortably drive a manual vehicle.
584. It would appear that her first day back at work doing the gold mail run was frustrating for her.
585. She had a swollen and painful ankle at the end of the day.
586. Her new hours were such that she was forced to sit in the office doing nothing for some hours after completing the run.
587. She felt disturbed at not being able to carry out the loading and lifting duties and she had to watch other employees do the work that she had been accustomed to doing. She was let down and distressed at her situation.
588. As Dr Cotton also formed the view that she has a somewhat vulnerable personality. Dr Coyte explored at some length why factors in her childhood have contributed to that vulnerability.
589. The Tribunal is satisfied that, in accordance with the requirement of the legislation, she suffered an adjustment disorder with depressed mood between the date of the gold mail run and the date that she was certified fit to return to work in 2007 that was contributed to in a material degree by her employment with APC.
590. For the reasons already set out the Tribunal will not deal with the period of depression that she then suffered subsequent to the Disciplinary Inquiry in 2007.
591. In the circumstances, the Tribunal sets aside that part of the reconsideration of 20 July 2007 that rejected Ms’s Obst’s claim for psychological injury and finds that APC has liability with respect to the psychological injury of adjustment disorder with depressed mood that she suffered between late November 2006 and early march 2007.
     

I certify that the 591 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Professor P L Reilly AO (Member)

Signed: .....................................................................................

Associate

Dates of Hearing 4-8 May 2009 (inclusive), 13-16 July 2009 (inclusive), 18 November 2009 and 11 December 2009

Date of Decision 25 January 2010

Counsel for the Applicant Mr Mark Roberts

Solicitor for the Applicant Tindall Gask Bentley

Counsel for the Respondent Mr Michael Bell

Solicitor for the Respondent Gilchrist Connell