Alexandra Blundell and Military Rehabilitation and Compensation Commission

[2013] AATA 387

[2013] AATA 387  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1146; 2011/5646
Re	Alexandra Blundell
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC Deputy President IR Molloy
Date	7 June 2013
Place	Brisbane

A.       In application 2011/1146 the decision under review,

(a)        is varied so as to substitute "adjustment disorder with depressed and anxious mood" as the accepted condition in lieu of "acute situational anxiety and depression" and to substitute 21 June 1988 for 8 July 1988 as the commencement date of the condition;

(b)       the decision is otherwise affirmed;

(c)       the parties have liberty to make submissions regarding costs.

B.       In application 2011/5645 the decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

WORKERS’ COMPENSATION – service in Australian Regular Army – psychological condition – current condition not continuation of earlier accepted psychological condition – decision under review varied to substitute "adjustment disorder with depressed and anxious mood" as accepted condition in lieu of "acute situational anxiety and depression" and to substitute commencement date of accepted psychological condition – decision under review otherwise affirmed

WORKERS’ COMPENSATION – service in Australian Regular Army – tension headaches – not caused by accepted back injury – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 124(1A)
Compensation (Commonwealth Government Employees) Act 1971

CASES

Australian Postal Corporation v Nadge [1994] FCA 1163

Canale v. Commissioner of Main Roads (1982) 1 WCR (WA) 163

F and T Grassi Pty Ltd v Ellendale Estate Pty Ltd (1985) WAR 294

March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

REASONS FOR DECISION

Deputy President PE Hack SC
Deputy President IR Molloy

7 June 2013

Introduction

1. The applicant, Ms Alexandra Blundell, was an officer in the Australian Regular Army between 1987 and 1989. 

2. On 28 March 2008 Ms Blundell lodged a claim for psychological injury with the respondent, the Military Rehabilitation and Compensation Commission. That claim was rejected on 10 October 2008. In December 2009 Ms Blundell requested reconsideration. On 11 March 2011, on reconsideration, a delegate of the Commission set aside the initial decision and substituted a determination accepting liability for a condition described as “acute situational anxiety and depression” with effect from 8 July 1988 up to 3 October 1989 that being the date at which the delegate determined that Ms Blundell had ceased to suffer the effects of the accepted condition. Ms Blundell applies to review that decision by application lodged in the Tribunal on 30 March 2011 (2011/1146).

3. On 4 January 2010 Ms Blundell lodged a claim dated 20 October 2009 with the Commission for tension headaches secondary to an accepted lumbar spine condition. The headaches claim was refused on 15 April 2011. Ms Blundell requested reconsideration of that decision on 19 May 2011. On 31 August 2011 the Commission affirmed the decision, determining that Ms Blundell’s headaches were unrelated to her lumbar spine condition.  That determination gives rise to the other application for review which was lodged on 26 October 2011 (2011/5646).

   Legislation

4. No detailed analysis of the legislation is required.  Each of the alleged conditions is claimed to have arisen prior to the commencement of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). By operation of s 124(1A) of the 1988 Act Ms Blundell is entitled to compensation under the 1988 Act for an injury suffered before the commencement date of the 1988 Act if compensation was, or would have been, payable to her in respect of that injury under the Act in force at the time of the onset of those conditions, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act).

   Psychological claim

5. Ms Blundell was born in December 1954. She became a full-time member of the Australian Army in about October 1987. She was initially based at Townsville and worked as an education officer teaching literacy and service writing.   

6. On 21 June 1988 Ms Blundell was interviewed by two other officers and a senior non-commissioned officer in connection with her security clearance.  She was accompanied by her commanding officer, Major Chris Burgin, who was present for most of the interview. There is no doubt that the interviewers questioned Ms Blundell aggressively, even brutally, and equally, there is no doubt that the interview was unnecessarily aggressive and brutal.

7. After the interview Major Burgin instructed Ms Blundell to return to her quarters for the rest of the day. She was visited by an Army matron, Major Suzanne Camille. During the several weeks following the interview, Ms Blundell consulted an Army psychologist, Captain Anne Goyne, for counselling and relaxation training. Captain Goyne arranged for Ms Blundell to be admitted to the barracks hospital on 1 August 1988 “suffering all the symptoms of nervous collapse”.

8. Ms Blundell’s treating doctor, whilst in hospital, was Dr Saltzer. Ms Blundell says she was told she needed “rest and reassurance”. She was discharged from hospital on 6 August 1988. Meantime, a decision was made to deny Ms Blundell security clearance, notification of which she received after her discharge from hospital.

9. At the end of 1988 and in early 1989 Ms Blundell took periods of leave. During 1989 she took eight months unpaid leave to attend the University of Queensland where she was undertaking a PhD.

10. On 29 August 1989 Ms Blundell lodged a formal resignation from the Army, citing continued unnecessary and unjust treatment by the Directorate of Military Intelligence as the reason for her resignation and indicating she would continue her full-time university studies. On 19 November 1989 Ms Blundell resigned from the Army.

11. From about May 1990 Ms Blundell was employed as a secondary school teacher with Education Queensland.  In July 1990 Ms Blundell consulted a general practitioner, Dr Pauline Johnson, for “work related stress” arising, in particular, from an incident in which a student threatened her with a knife.  Ms Blundell was referred by Dr Johnson to Dr Bruce Lawford, a consulting psychiatrist. Dr Lawford has continued to treat her intermittently since that time.

12. Dr Lawford has provided several medical reports. On 31 December 1992 he diagnosed Ms Blundell as suffering from a depressive disorder arising from her employment as a teacher. On 8 October 1993 Dr Lawford diagnosed Ms Blundell as having a history of recurrent mood disorder and generalised anxiety as a result of her experiences at work during 1990, including death threats from students.

13. In about 2000 Ms Blundell obtained a copy of her Army medical file which Dr Lawford reviewed. After reviewing the Army file Dr Lawford altered his initial diagnosis. On 19 September 2000, he diagnosed Ms Blundell as suffering from a recurrent depressive disorder as a result of the interview in 1988. On 22 October 2009 Dr Lawford diagnosed Ms Blundell as having suffered from major depressive disorder since August 1988. On 17 June 2011 he diagnosed Ms Blundell as having developed major depressive disorder following the security clearance interview.

14. The Commission does not dispute that Ms Blundell suffered a psychological injury as a result of the security clearance interview in 1988. However the Commission says that Ms Blundell ceased to suffer the accepted psychological condition by 3 October 1989, and that her current condition is not a continuation of the 1988 condition. Based on the matters referred to below we have concluded that this is essentially correct.

15. From her discharge from hospital in August 1988 until her resignation from the Army in November 1989, there is no record of Ms Blundell reporting or seeking treatment in respect of any psychological or emotional complaint.  In her reasons for resigning from the Army, Ms Blundell does not refer to or indicate any psychological condition or injury. She cites as her reasons continued unnecessary and unjust treatment and denial of a request for an independent authority “to examine the said investigation”. Ms Blundell’s medical history on discharge records “no” to having suffered “nervous illness” or “mental illness”.

16. Ms Blundell says that she kept quiet about her psychological symptoms from August 1988 until the end of 1989 because she was told if she “didn’t shape up” she would be dishonourably discharged or sent to a mental institution. Ms Blundell went as far as to say she was ordered not to report any difficulty coping emotionally, and that she feared punishment if she did so. We are unable to accept this evidence of Ms Blundell. We consider it more likely that she has reconstructed events and circumstances, perhaps understandably so. 

17. On 31 December 1992 Dr Lawford reported Ms Blundell had no pre-morbid history of depressive disorder. He said she developed a depressive illness in 1990 due to trauma suffered in the classroom. Until 2000, when Ms Blundell obtained access to her Army medical records, Dr Lawford was unaware of any psychiatric history in Ms Blundell's Army career.

18. On the other hand Ms Blundell says: “During my initial consultations with Dr Lawford, perhaps the second consultation, it came up that I had a bad experience during my military service.” Dr Lawford said, and we accept, that if Ms Blundell had told him about such an episode he would have found it significant and recorded it.

19. In August 1990 Ms Blundell made a claim for compensation under the Workers’ Compensation Act 1916 (Qld) for a condition she described as “occupation-related stress” arising out of the school place incident.  The claim form asked “Have you previously suffered any similar injury or condition”.  Ms Blundell ticked the “No” box.

20. With the assistance of solicitors Ms Blundell prepared and signed a detailed statement in support of the workers’ compensation claim.  That statement included the following,

    I enjoyed good health and I have not encountered any prior problems of a similar nature in my life… There is an absence of any other emotional factors in my life which could have caused or substantially contributed to my incapacity since the 2nd July 1991.

21. Ms Blundell was seen at the time for medico-legal purposes by two experienced psychiatrists, Dr Raymond James and Dr Tom Bell.  Neither report makes reference to stressful events during Ms Blundell's career in the Army; indeed Dr Bell's report notes that Ms Blundell,

    … has suffered no psychiatric illness prior to 1990.  She has always been physically fit and healthy.

22. We do not accept Ms Blundell’s evidence in which she says she did not mention the 1988 episode to Dr Bell because Dr Lawford had told her it was irrelevant or that she only answered the questions Dr Bell asked.  

23. Ms Blundell’s statement to the Medical Tribunal in relation to her workers’ compensation claim does not mention any previous mental health issues. Ms Blundell saw Ms Diane Watson, therapist, on thirteen occasions over five months in 1990, and apparently did not mention previous mental health issues to her.

24. We find it impossible to reconcile Ms Blundell’s failure to mention the June 1988 interview and its aftermath at all, even to her treating specialist Dr Lawford, in connection with the 1990 school place incident and her workers’ compensation claim, if they affected her as she describes. Dr Lawford surmised that Ms Blundell may have felt shame or embarrassment about mentioning the security clearance interview because it delved into personal issues. In our view it is more logical to attribute the absence of reference to those events to them not having been as stressful as Ms Blundell now claims that they were.  

25. In Dr Lawford’s opinion Ms Blundell has suffered from major depressive disorder, in varying intensity, since 1988, a condition that Dr Lawford attributes to her experience in the interview of June 1988. We are unable to accept that opinion.  First, as it seems to us, as the treating practitioner Dr Lawford, is more likely to accept uncritically the account of events given to him by Ms Blundell, a history which we consider to be significantly overstated.  It is understandable that he should do so and we make no criticism of him for doing it, however we are bound to give effect to our view of the severity of events and our view of the history. 

26. Moreover it seems to us, with respect, that Dr Lawford is in error in diagnosing the reason for the hospital admission in August 1988 as major depressive disorder.  Whilst DSM-IV was not then in existence it is apparent, that Ms Blundell was well short of satisfying the diagnostic criteria for that condition. Dr Lawford concluded that Dr Saltzer, the treating doctor at the time, had made a diagnosis of depression. That was not the diagnosis on discharge. The diagnosis on discharge was “acute situational crisis”, a condition that would now be called adjustment disorder.

27. Dr Vladan Ljubisavljevic, a consultant psychiatrist, examined Ms Blundell at the request of the solicitors for the Commission in August 2011.  He diagnosed Ms Blundell as suffering from major depressive disorder with recurrent episodes but that that condition was in partial remission at that time. 

28. By reference to the contemporaneous medical records Dr Ljubisavljevic concluded that the appropriate diagnosis for Ms Blundell in late 1988 was adjustment disorder with depressed and anxious mood but that that condition had settled down in the second part of 1988.  He concluded that she had suffered further episodes of adjustment disorder in the context of multiple issues in 1990 and that following that the mood disorder took more of a chronic course. 

29. Dr Ljubisavljevic expressed the opinion that it was probable that Ms Blundell’s service with the Army was a significant contributing factor to the development of the first episode of adjustment disorder, and that that condition ceased in the second part of 1988. He considered her condition in 1990 to have been caused by the particular event that related to employment with Education Queensland.

30. In our view Dr Ljubisavljevic’s opinion ought be accepted.  It is logical and explains, for example, the absence of reference during the 1990 compensation claim to the events of 1988. 

31. Dr Ljubisavljevic did consider that the 1988 episode of adjustment disorder “would predispose Ms Blundell to having a pathological reaction to any such stressful event.” He said that suffering from previous episodes of depressed and anxious mood would make a person more vulnerable towards the development of future episodes of depression. Dr Ljubisavljevic also said that, absent any such predisposition, the school place incident could have precipitated the same condition. 

32. In determining issues of causation we bear in mind the decision of the High Court in March v Stramare (E & MH) Pty Ltd[1] that such issues involve an application of common sense. We are also assisted by the decision in Australian Postal Corporation v Nadge[2], a decision of Lee J on an appeal from the Tribunal. The issue in that case was whether the re-emergence of symptoms in an employee’s damaged spine was the result of a new injury or could be said to be a continuation or recurrence of a previous injury. In the course of his judgment Lee J referred to the following test formulated in Canale v Commissioner of Main Roads[3] and recited with approval by Burt CJ in F and T Grassi Pty Ltd v Ellendale Estate Pty Ltd[4]:

    … that an injury or condition recurred when it played up either spontaneously or because of the ordinary stresses and strains of living and working, and that any consequent incapacity would be related to the original accident.  On the contrary, even though the first injury left a weakness even a great weakness and a potential site of trouble, where that trouble is precipitated by a new incident of an accidental nature such as could well originate trouble in its own right, that trouble should be regarded as a new injury for which the latter incident is the direct cause. 

    Justice Lee went on to say,

    It was obviously a question of fact whether another injury had intervened to break the chain of causation between the original injury and the subsequent incapacity…. [citations omitted]

    [1] [1991] HCA 12; (1991) 171 CLR 506, especially per Mason CJ at 515.

    [2] [1994] FCA 1163.

    [3]           (1982) 1 WCR (WA) 163.

    [4] (1985) WAR 294, 297.

33. In the result we are satisfied that Ms Blundell’s condition which developed in 1988 following the security clearance interview had resolved by the end of 1989. We do not accept that her condition in 1990 following the school place incident, or her present condition, can be described as a continuation of the psychological disorder she suffered in 1988.

34. There remains an issue concerning the commencement date of the accepted 1988 psychological condition. The Commission’s delegate said the “injury” was deemed to have been sustained when Ms Blundell first received medical treatment on 8 July 1988.

35. For Ms Blundell it is said that this date was determined by reference to s 7(4) of the 1988 Act, a provision that refers to diseases not injuries, and that in any event the governing legislation is the 1971 Act.  Furthermore, it is submitted that, if the date of first medical treatment is relevant, then Ms Blundell was attended by a matron following the interview on 21 June 1988, which would fall within the meaning of “medical treatment” under both Acts.

36. The Commission’s contention is that Ms Blundell first suffered a psychological condition outside the boundaries of normal mental functioning and behaviour from 1 August 1988, that being the date she was referred to Captain Goyne, psychologist, and was admitted to hospital.

37. In his report, dated 8 April 2013, Dr Ljubisavljevic dealt specifically with the nature and onset of the 1988 condition. We accept his view that the date of onset was probably 21 June 1988. 

38. In the result the delegate’s determination should be varied by substitution of 21 June 1988 as the commencement date of the psychological condition. There is agreement that the condition described in the determination as “acute situational anxiety and depression”, would now be known as “adjustment disorder with depressed and anxious mood” and that we should also make that variation.

    Headaches

39. Ms Blundell makes a claim for headaches secondary to an accepted lumbar spine injury. The issue is whether that accepted condition is the cause of her tension headaches.

40. Ms Blundell dates the onset of the headaches, with precision, to the interview in June 1988. She says that in the course of the interview she experienced heightened pain in respect of her “physical service-related injuries”. This included, as she describes, pain in her lower back which radiated up the spine and into her head. She describes an intense headache which felt like a tight band around her head. She says this was the first time she had ever experienced a tension headache, and she has continued to experience tension headaches ever since.

41. Ms Blundell also says that in the course of the 21 June 1988 interview she was crying from constant pain, caused by physical ailments, and denied access to pain medication.  However no reference is made to such matters in the detailed note Ms Blundell made of the interview on the day following.  Moreover, no mention is made of such matters in either of the statements made by Ms Blundell’s commanding officer of the time.  That officer accompanied her and was present for most of the interview. He provided her, and her solicitors, with detailed statements of his recollections of events of that day.  Whilst Ms Blundell relied upon his statements he was not called to give evidence about his recollection of Ms Blundell’s complaints of pain and such-like. 

1. Ms Blundell says that she was suffering from an injury to her back at the time of discharge from the Army in 1989.  In the course of her evidence she was taken to the medical questionnaire completed in October 1989 in connection with that discharge.  That document recorded the conditions from which she was suffering, or had suffered.  The medical practitioner who completed the document has recorded Ms Blundell as having complained of suffering from a knee injury and an ankle injury but no back injury. 

2. Ms Blundell's evidence was that she had made complaint to the medical officer at the time of a back injury but that he had “refused” to record her complaint.  And, she said, she had signed the form, thereby certifying to its correctness, because the medical officer had threatened to have her arrested for disobeying a lawful order if she continued to refuse to sign the document.  We find this evidence unbelievable.

3. Although Ms Blundell relates her headaches since June 1988 to lumbar back pain, the medical records do not support this.  The initial record of the onset of headaches was as a symptom of an acute situational crisis for which she was admitted to hospital on 1 August 1988.

4. On 30 January 1989 there is a record of a medical attendance for eye strain and headaches. It records “Plans referral to eye specialist for R/V of spectacles.”

5. In August 1989 there is a record of attendance at the University of Queensland Health Service, at which time Ms Blundell complained of a two month history of severe headaches after being struck on the back of the head and neck with a heavy China dinner plate. She made no mention of headaches from back pain. We do not accept her evidence that these were different headaches from a different part of her head which she did not mention because she was not asked.

6. We then approach our task on the basis that Ms Blundell is not a reliable historian, either in her evidence before us or in providing a history to medical practitioners.

7. The principal medical evidence in support of Ms Blundell’s headache claim came from Professor M. J. Eadie, a consultant neurologist. His diagnosis, in a report dated 18 July 2012, was:

   I think this lady is getting episodes of trapezius spasm on both sides which begin at the lower end of the muscle, spread up the whole muscle and where it inserts on the back of her occiput produces tension on the epicranial aponeurosis which produces the headache. I do not think there is any sinister intracranial disease. 

8. Dr Eadie said it was unusual for tension headache to be caused by lower back injury. Moreover his diagnosis was very much dependent upon the history provided to him by Ms Blundell. That history, as recorded in his report, was:

   In 1988 she hurt her back while exercising and ever since has had chronic low back pain which varies in severity. About a month after this pain began she had an episode in which the muscles of her back seemed to spasm and this extended into a headache which covered the whole of her head and felt as though there was a too tight cap on her head. Ever since then these episodes of back muscle spasming together with the headache have occurred. She has no other headache and had no earlier headache and there is no family history of headache. She is otherwise well though she has some bleeding tendency and this has prevented various operations being done to deal with her orthopaedic issues.

9. The history provided to Dr Eadie, as we have found, was incorrect. Consequently we are unable to give any real weight to Dr Eadie’s opinion.

10. Overall we accept the evidence of Dr Vivian Edwards, consultant neurologist, who examined Ms Blundell on 4 April 2013. Dr Edwards said he could not recall, in fifty-two years of practice, any cases where tension headaches were due to lumbar spine injury.  He commented that “There were numerous irregularities and inconsistencies in the headache history”. We accept Dr Edwards’s conclusion that Ms Blundell’s headaches are unrelated to her accepted back condition.

11. In the result we affirm the determination of the Commission’s delegate in respect of the headache claim.

    Costs

12. By virtue of s 67(8) of the 1988 Act a discretion to award costs in favour of an applicant is enlivened where the Tribunal makes a decision varying a reviewable decision in a manner favourable to the claimant.  Our tentative view, unaided by any submissions of the parties, is that the variations we propose to the reviewable decision in application 2011/1146 would not warrant an exercise of that discretion however we said, in the course of the hearing, that we would invite submissions on costs if Ms Blundell was so advised.  Those submissions should be lodged and served within seven days of the date of publication of these reasons.  If no submissions are lodged, no order for costs will be made. If submissions are lodged, the Commission will have a further seven days to lodge and serve submissions in reply. There is no question of costs in application 2011/5646.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC, Deputy President IR Molloy

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Associate

Dated  7 June 2013

Date(s) of hearing	29 & 30 April, 1 May 2013
Counsel for the Applicant	Ms E Gass
Solicitors for the Applicant	Murphy Schmidt Solicitors
Counsel for the Respondent	Ms N Kidson
Solicitors for the Respondent	Australian Government Solicitor