Amos and Australian Postal Corporation

[2008] AATA 438

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 438

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600836; 2007/1776

GENERAL ADMINISTRAIVE DIVISION		)
Re		LORRAINE AMOS

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Deputy President P E Hack SC and Dr M L Denovan, Member

Date28 May 2008

PlaceBrisbane

Decision In each application the Tribunal affirms the decision under review.

..............Signed.................

Deputy President

CATCHWORDS

COMPENSATION – psychiatric illness – major depressive disorder – applicant claims illness resulted from workplace bullying and harassment – applicant had other emotional difficulties at the time – no evidence of permanent impairment – no evidence of ten per cent whole person impairment  – both decisions under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 24, 27

REASONS FOR DECISION

28 May 2008   Deputy President P E Hack SC and Dr M L Denovan, Member                  

1.These are applications by Mrs Lorraine Amos to review two decisions by her former employer, Australian Postal Corporation (APC), on claims made by her for compensation.

2.In application 2007/1776 Mrs Amos seeks a review of a decision of APC made on 16 May 2005 and affirmed on reconsideration on 29 March 2007 that APC was liable, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), to pay compensation to Mrs Amos in accordance with the SRC Act for a condition described as “partial aggravation only of pre-existing major depressive disorder”.

3.In application Q 200600836 Mrs Amos seeks a review of APC’s decision, made on 27 April 2006 and affirmed on reconsideration on 20 October 2006, that Mrs Amos was not entitled to compensation for permanent impairment.

4.Mrs Amos commenced working for APC in about 1995. She was, at all material times, employed as a postal delivery officer at the Nerang Post Office. She left that employment in February 2005, just short of 10 years service with APC. Mrs Amos was one of a number of postal delivery officers at that Post Office.

5.The postal delivery officers, including Mrs Amos, were supervised by a manager. From early[1] 2000 to November 2003 that manager was a person who we shall describe as Ms B[2]. The case for Mrs Amos is that Ms B bullied and harassed her to such an extent that it caused Mrs Amos to develop a major depressive disorder. That behaviour commenced, according to the evidence of Mrs Amos before us, in June 2000. We should point out, at this juncture, that APC accepts that there was conduct on the part of Ms B that contributed to the aggravation of a pre-existing depressive disorder, hence the determination of 27 April 2005. Thus we proceed upon the basis that the bullying and harassment described by Mrs Amos took place as she described.

[1]Mrs Amos fixes the starting date for the manager as April 2000 whereas according to the instructions provided to counsel for APC she started in February 2000. The parties are agreed that the precise time does not matter and that a description of “early 2000” will suffice.

[2]        We have chosen not to identify this person as we consider it to be unfair to do so to a person      who has not been heard in relation to the claims made against her.

6.Whilst Mrs Amos was giving evidence it became apparent that she was having some difficulty in recalling the timing of certain events about which she was being cross-examined. Without objection from Mr Clark, counsel for APC, we stood the matter down for a short period to enable Mrs Amos to prepare a short chronology[3] setting out the dates or approximate dates of the major events. We propose to take the dates from that chronology for the purposes of the history that follows. Whether it is accurate is a separate issue to which we shall return.

[3]        Exhibit 4.

7.Mrs Amos says that from about September or October of 2000 she commenced experiencing symptoms of anxiety and depression, she was crying and was reluctant to go to work, all as a consequence of the behaviour of Ms B towards her. On her account of events before us her first formal response to that treatment occurred in April or May 2001 when she arranged to see Mr Anthony Petcopoulos, a staff counsellor employed by APC. She saw Mr Petcopoulos for individual and group counselling sessions over a period of some months.

8.In August 2001 Mrs Amos’ mother was diagnosed with spinal cancer. She eventually succumbed to this illness in early April 2003. Then in September 2001 Mrs Amos separated from her husband when he moved to Canberra although she says that the marriage had been broken down for at least 8 years prior to final separation.

9.Also in August 2001 Mrs Amos commenced a series of attendances upon her general practitioner complaining of matters concerning her mental state. She attended a general practice known as Robina Parkway Medical Centre. We discuss these attendances further in paragraphs [22] and [23] below.

10.Mrs Amos continued in full-time employment with APC throughout this period up until December 2002 when she commenced to work part-time. Ms B left the employ of APC in November or December 2003 and Mrs Amos herself resigned in February 2004.

11.In January 2004 Mrs Amos was referred for treatment by Dr Maxwell Katz, a consultant psychiatrist. She consulted him on three or four occasions thereafter. She continues to attend a psychologist for counselling.

12.Mrs Amos made a claim for compensation for “stress” in May 2004. APC obtained reports from Dr Dennis McMahon, the general practitioner from Robina Parkway Medical Centre who had been treating her from January 2004, from Mr Peter Stebbins, a clinical psychologist, and from Dr Philip Morris, a consultant psychiatrist. On the basis of that material APC made the determination of 16 May 2005 that it was liable for a partial aggravation only of a pre-existing major depressive disorder. In March 2006 Mrs Amos made a claim for compensation for permanent impairment. On 27 April 2006 APC determined that Mrs Amos was not entitled to payment of compensation under ss 24 and 27 of the SRC Act.

13.We should start by noting that the present is a case where the reliability or otherwise of medical diagnoses is very much affected by the reliability of the histories provided to the psychiatrists whose opinions are before us. Dr Morris saw Mrs Amos in October 2004. Dr Judith Chittenden, called on behalf of Mrs Amos, saw her in August 2005 and again in March 2007. Dr Jill Reddan, engaged by APC, saw Mrs Amos in July 2007. The opinions they have expressed relate to a condition determined to exist as long ago as 2001. As it seems to us it is important to ensure, as far as possible, the accuracy of the history provided.

14.That said, we have to say that we do not regard Mrs Amos as a reliable historian. That is, to some extent, understandable as it is understandable that she now views past events through the prism of re-construction. Some examples of Mrs Amos’ unreliability demonstrate our concern.

15.In her original claim for compensation completed in April 2004, Mrs Amos said that she first noticed the illness for which compensation was claimed in approximately mid 2001 and that she first had medical treatment for it in September 2001. In her evidence before us she referred to September/October 2000 as the time when she first observed symptoms of anxiety and depression and that she had first told her general practitioner of her difficulties in December 2001. There is, thus, a variation between the evidence of Mrs Amos and a document completed by her at an earlier point in time. The claim for compensation is, necessarily, a serious document and Mrs Amos did not suggest that she did other than take care to be accurate in completing it.

16.In the history recorded by Dr Chittenden, she recounts being told that Ms B commenced as Mrs Amos’ manager in June 2001 and that the bullying conduct of which Mrs Amos complained commenced from that time. Yet it is agreed now by Mrs Amos that Ms B commenced as her manager no later than April the previous year. That does rather suggest that her account to Dr Chittenden has been re-constructed with a view to showing that the bullying was the cause of emotional difficulties rather than other events in her life.

17.Next, it was put to Mr Petcopoulos by Mr Barlow, counsel for Mrs Amos, that he had been in the habit of recording notes during consultations with Mrs Amos in a pocket-sized notebook that he kept in his top shirt pocket. He denied ever having done so. Similarly, when she saw Dr Reddan she was dismissive of Mr Petcopoulos’ reported denials of having made notes of the discussions between them. It was suggested to Mr Petcopoulos, again on instructions, that Mrs Amos’ consultations with Mr Petcopoulos commenced in April or May 2001. He was unsure and had no notes of his consultations. Yet Mr Petcopoulos’ evidence was that the subject matter of his consultations with Mrs Amos was both the workplace difficulties and the terminal illness of Mrs Amos’ mother.  If that be so, and we make it plain that we accept the evidence of Mr Petcopoulos on this and other areas of dispute, the discussions could not have commenced until after the diagnosis of the mother’s illness in August 2001.

18.Mrs Amos told us (and Drs Chittenden and Reddan) that the diagnosis of her mother and the decline in her mother’s health thereafter did not cause her any emotional difficulties. It is understandable, in the context of the matters in issue in these proceedings, that she would do so. But when she saw Dr Morris in October 2004, which was before APC’s determination of May 2005, he noted,

“She was caring for her mother during 2001, 2002 and 2003 and this was a very stressful period for her.”

19.There is a significant change in the account given by Mrs Amos after the determination by APC in May 2005 of partial aggravation of a pre-existing condition. In our view, after that determination Mrs Amos has attempted to emphasise the role of Ms B, and to downplay the role of other significant life events, in the onset of her illness. We need not decide whether she has done so consciously or unconsciously; it is sufficient that we conclude that she cannot be regarded as a reliable historian in accounts given after that determination. We include in that the evidence that she gave before us.

20.These matters, and our general impressions of Mrs Amos, lead us to conclude that we ought be cautious in accepting the evidence of Mrs Amos before us and in accepting opinions based, as are those of Dr Chittenden, upon an uncritical acceptance of the account given by Mrs Amos. We conclude that recourse to records more proximate in time will provide a more accurate guide.

21.Those records give an entirely different account to that recorded by Dr Chittenden.

22.First there are the clinical notes of Mrs Amos’ attendances at the Robina Parkway Medical Centre. In the period from the first entry in July 2000 to May 2001 the entries are unremarkable. On 14 August 2001 there is a reference to, “Insomnia. Lengthy discussion re sick mom who has bone cance [sic]”. Then on 23 August 2001 the notes refer to “Still very anxious about terminally ill. Has had 2 weeks off. Feels a bit better. Will try to go back to work Monday.” Reference to Mrs Amos’ leave records show that she took leave in August and September 2001 described as “special leave, family”.

23.There are further references in the clinical notes to depression and anxiety and similar in September 2001, October 2001 and February 2002. Where a cause is noted that cause is the terminal illness of Mrs Amos’ mother, not difficulties at work. The first reference to work difficulties in the clinical notes is in May 2002 where the reference is, “discussed work place generated distress”.

24.We accept that a general practitioner cannot record every detail of presenting complaints but it seems to us to be inconceivable that Mrs Amos could, as she said, have been complaining of workplace difficulties during this period and, as she also said, that her mother’s terminal illness and ultimate passing did not cause her any distress. It seems to us that the inescapable conclusion is that Mrs Amos has reconstructed the events of that time. Whilst she may now genuinely believe that it was workplace difficulties and not her mother’s illness of which she complained, it was the former, and not the latter, that was the subject of complaint to her treating general practitioner at the time, at least until May 2002.

25.That conclusion is reinforced by the evidence of Mr Petcopoulos that it was both workplace difficulties with Ms B and her mother’s illness that were troubling Mrs Amos when he saw her. It really does not matter for these purposes which subject matter was first raised by Mrs Amos or whether the fact of the mother’s illness was elicited by questioning by Mr Petcopoulos; it is sufficient that both were noted by Mr Petcopoulos as concerning to Mrs Amos.

26.The conclusion that Mrs Amos is an unreliable historian affects the view that we reach about the reliability of the diagnosis provided by Dr Chittenden. Dr Chittenden first saw Mrs Amos in August 2005. At that time the only document available to her was a letter to Mrs Amos from APC which accepted that Mrs Amos’ treatment in the workplace had only aggravated a pre-existing depressive illness. Dr Chittenden did not have access to the clinical notes, a report of Dr Dennis McMahon, the general practitioner who commenced treating Mrs Amos in January 2004, a report compiled by Mr Peter Stebbins, a clinical psychologist or the report of Dr Philip Morris, a consultant psychiatrist.

27.In the absence of this material, and with only the history provided by Mrs Amos, an unreliable historian, it seems to us, with respect, that we ought not accept the conclusions reached by Dr Chittenden about the causes of Mrs Amos’ depressive disorder. We do not doubt the clinical judgement of Dr Chittenden but, in circumstances where she has had no access to reliable sources of information and has relied entirely upon the history provided by Mrs Amos, we are unable to accept her opinion. 

28.Dr Chittenden was aware of the other events in the life of Mrs Amos that might have been stressful. Of them, she proffered the following comment:

“Since June 2001, there appears to have been a gradual deterioration in Ms Amos’ psychological state, although there appeared to be other possible situations in her life. As a result of close questioning, I feel that the death of Ms Amos’ mother and the breakup of her second marriage had no influence on what was happening to her at that time, in that it seemed that her work situation was by far the major stressful situation at that time from which she gradually decompensated into a chronic depressive disorder”.

29.As we have sought to explain, it is apparent that the “close questioning” has produced a result at odds with the contemporaneous complaints. Moreover, Dr Chittenden fixes the commencement of the “gradual deterioration in Ms Amos’ mental health” to June 2001 on the basis, as she was told by Mrs Amos, that that was when Ms B commenced as the manager of Mrs Amos. But that also is wrong.

30.Dr Chittenden’s observation, in her later report, that she would regard Mrs Amos “as a good historian who took care to give a correct chronological account of her work and her personal life” is also demonstrated to be unfounded.

31.In the result, we are unable to accept the opinions proffered by Dr Chittenden.

32.Dr Morris saw Mrs Amos in October 2004. Dr Jill Reddan, a consultant psychiatrist, saw her in July 2007. Their conclusions on the cause of Mrs Amos’ depressive disorder are similar. Each conclude that the onset of the depressive disorder was in the second half of 2001 and that the actions of Ms B aggravated that condition. We accept those conclusions which are informed by the longitudinal history and entirely consistent with it.

33.It follows then that we would affirm the decision of APC, the subject of application 2007/1776. We would not set aside the decision, as Mr Barlow, counsel for Mrs Amos, urged us to do, and substitute a decision that excluded reference to aggravation. We were urged to adopt that course because, as it was put, the definition of injury in s 5A of the SRC Act includes “a disease suffered by an employee” and “disease” is defined in s 5B of the SRC Act as meaning either an ailment or an aggravation of that ailment that was contributed to by employment. The operative part of the determination made on 16 May 2005 is that APC,

“accepts liability for your claim for compensation made pursuant to Sect 14 of the Safety, Rehabilitation and Compensation Act 1988”.

The words thereafter, to which exception is taken, record factual conclusions that we consider were properly reached.

34.In the other application Mrs Amos seeks a review of the decision to refuse her claim for compensation for permanent impairment. The claim is entirely reliant upon the view that Mrs Amos’ condition is permanent in the sense used in the SRC Act and upon the opinion of Dr Chittenden that it is such as would attract a whole person impairment of 10% by reference to Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment – 2005 (the Guide). We do not regard either conclusion as being open on the evidence.

35.The term “permanent” is defined in s 4 of the SRC Act as meaning “likely to continue indefinitely”. When determining whether impairment is permanent we are required to have regard to the matters set out in s 24(2) of the SRC Act. Those that are presently material are the matters in paragraphs (a) and (b) of the sub-section, the duration of the impairment and the likelihood of improvement in the condition. Dr Morris, in November 2004, expected an improvement with treatment and that the condition of Mrs Amos would be sufficiently improved within six months from then to enable her to return to work. Dr Chittenden anticipated an improvement and even on her view of the condition of Mrs Amos, observed an improvement between August 2005 and March 2007. We are unable to accept her contrary conclusion, expressed in re-examination, because we do not accept the factual premise upon which it was expressed. That is, we do accept the evidence of Mrs Amos given before us of her present complaints and symptoms.

36.We note that Dr Reddan expressed the view that as at July 2007 Mrs Amos was no longer suffering from any psychiatric disorder attributable to APC. There is much to commend that view, given that Mrs Amos left that employment some years earlier and that the source of her complaints had earlier left the workplace, but we need not go that far. It is sufficient to say that we are entirely unpersuaded that Mrs Amos has a permanent impairment.

37.We are equally unpersuaded that Mrs Amos’ condition, even as she described it, answered the descriptors referable to a 10% whole person impairment in the Guide. That refers[4] to the employee being capable of performing activities of daily living despite the presence of more than one of the following,

·reactions to stressors of daily living with minor loss of personal or social efficiency;

·lack of conscience directed behaviour without harm to community of self;

·minor distortions of thinking.

[4]        In Table 5.1: Psychiatric Conditions

38.Dr Chittenden expressed the view that all of these features were present on both occasions that she saw Mrs Amos, to a lesser degree on the March 2007 occasion. These views of Dr Chittenden on this aspect were presented as an ipse dixit without any demonstration of the bases upon which the opinion was formed. That is unsatisfactory. However, that aside, we are unable to accept the conclusions because we regard the information that informed the conclusions, that provided by Mrs Amos, to be unreliable. We are unable to have any confidence in the accuracy of the information presented to Dr Chittenden by Mrs Amos.

39.We would then affirm the decision under review in application Q 200600836.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr M L Denovan, Member

Signed:         ..................Signed................................................
  Jacqueline Woods, Associate

Date/s of Hearing  12 - 13 May 2008
Date of Decision  28 May 2008
Counsel for the Applicant         Mr A Barlow
Solicitors for the Applicant        Parker Simmonds 
Counsel for the Respondent     Mr C Clark
Solicitors for the Respondent    Australian Government Solicitor