Atkins and Comcare (Compensation)

[2018] AATA 889

Atkins and Comcare (Compensation) [2018] AATA 889 (13 April 2018)

Division:GENERAL DIVISION

File Numbers:         2016/1099, 2016/1100, 2017/7593

Re:Christine Atkins

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:13 April 2018

Place:Melbourne

The Tribunal sets aside the decision in relation to application 2016/1099 and substitutes its decision that the generalised anxiety disorder being a mental injury arising out of employment, continues to contribute to the applicant’s incapacitation attracting liability under ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Tribunal affirms the decision in relation to application 2016/1100 that the contested conditions of asthma attack, cardio-pulmonary arrest and Lance Adams syndrome was not contributed to, to a significant degree, by the applicant’s employment by the Commonwealth.

The Tribunal sets aside the decision in relation to application 2017/7593 and remits the decision to the respondent Comcare for reconsideration in accordance with the reasons given in this decision.

[sgd]........................................................................

Member

WORKERS’ COMPENSATION – verbal abuse and threatened physical violence by co-worker – rejection of mediation – failure to resolve workplace matters in the applicant’s favour – development of generalised anxiety disorder – acceptance of liability – role of latter in precipitation of asthma attack leading to cardiac arrest – post arrest epilepsy – Lance Adams syndrome – major depressive disorder – total incapacity for work – permanent impairment partially attributed to generalised anxiety disorder – decisions varied

Legislation

Safety, Rehabilitation and Compensation Act 1988

Administrative Appeals Tribunal Act 1975

Cases

Adelaide Stevedoring Company Limited and Forst (1940) 64 CLR 538
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
Australian Industry Development Corporation v Boyd (1990) 95 ALR 149
Comcare v Lofts and Another (2013) 217 FCR 220
Comcare v Martin (2016) 258 CLR 467
Military Rehabilitation and Compensation Commission v SRGGGG (2005) 40 AAR 337
Re Alfred Coleman Titchener and Commonwealth of Australia [1986] AATA 63
Re Wendy Anne Lloyd and Australian Telecommunications Commission [1988] AATA 97
Rodriguez v Telstra Corporation Limited (2002) 66 ALD 579
Seltsam Pty Ltd v McGuinness and Another (2000) 49 NSWLR 262
Telstra Corp Ltd v Mahon (2004) 39 AAR 484
White and Military Rehabilitation and Compensation Commission [2017] AATA 1555

Secondary Materials
Comcare Guide to the Assessments of the Degree of the Permanent Impairment
Commonwealth Administrative Review Committee, Parliamentary Paper No 144, 1971 (Kerr Committee Report)

Some 14 Medical Journal articles provided by the Respiratory Physicians

REASONS FOR DECISION

Miss E A Shanahan, Member

13 April 2018

1. Ms Atkins has lodged applications with the Administrative Appeals Tribunal (the Tribunal) for review of three decisions made by Comcare. The third of these, application 2017/7593, was lodged on 20 December 2017 after the commencement of the hearing and at the Tribunal’s direction was joined to the earlier applications.

2. Application 2016/1100 relates to the reviewable decision of 3 February 2016 which affirmed the determinations of:

   (a)9 October 2015 denying liability for the contested conditions of aggravation of asthma, cardiorespiratory arrest and Lance Adams syndrome;

   (b)14 October 2015 accepting liability to provide 12 psychology sessions at one per month from 9 November 2015 to 9 November 2016; and

   (c)25 November 2015 denying liability for the provision of various household aids and medication.

3. Application 2016/1099 relates to the reviewable decision of 4 February 2016 which varied the accepted liability for the condition of generalised anxiety disorder (GAD) and accepted incapacity payment for the period up to and including 3 March 2015, but denied such payment thereafter as incapacity after that date was not due to the accepted psychological condition.

4. Application 2017/7593 relating to the reviewable decision of 16 November 2017 which affirmed the determination of 18 October 2017 denying liability for permanent impairment compensation for the conditions of aggravation of asthma, cardiorespiratory arrest and Lance Adams syndrome pursuant to ss 24 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

5. The hearings were conducted over a period of 12 days between 13 November 2017 and 13 March 2018, totalling 10 days of hearing and two directions hearings. Ms Atkins was represented by Ms Cassie Serpell of counsel, instructed by Ryan Carlisle Thomas Lawyers. The respondent Comcare was represented by Mr Joe Lenczner of counsel, instructed by Simone Krauss of the Australian Government Solicitor. In accordance with the requirements of s 37 of the Administrative Appeals Tribunal Act 1975, the respondent provided three sets of T-documents (Exhibit R1). Both parties tendered further documentation, including the entire recent medical history relating to Ms Atkins hospitalisation at Peninsula Hospital in Frankston for a period of two and a half weeks, followed by several months of rehabilitation. A list of these tendered documents is appended to this decision.

6. Ms Atkins, Ms Antoinette Watson, Ms Amanda Mitchell, Ms Tamaris Damen, Ms Julie Whitehead, Mr Ross Atkins, Mr Scott Atkins, Dr Brian Dunn, Dr David Weissman, Dr Jonathan Burdon, Professor Jacques Joubert, Mr Jarrod Bull, Mr Robert Ryan, Mrs Gillian Nguyen, Associate Professor Ernest Butler, Dr Anthony Sheehan and Dr Peter Trembath all gave evidence in person.  Dr Scott Chambers gave evidence by telephone.

   BACKGROUND TO THE APPLICATION

7. Ms Atkins is a 59 year old single lady who completed year 12 at age 17 and then undertook a secretarial course at Stotts College over 12 months. She then became a student nurse at the Williamstown Hospital but withdrew from the nursing course after two and a half years following her mother’s sudden death. Ms Atkins had found her mother dead on the floor of their home.

8. Following a period of grieving and some depression, Ms Atkins commenced work with a computer company (Auscom) performing data entry duties. She then worked for ten years at a pool and spa shop in Boronia. Her next job was with the Commonwealth Bank first as a teller and subsequently in debt collection. She left the bank to join the Australian Taxation Office (ATO) where she was employed in debt-collecting from businesses. When the Federal Government opened a Department of Human Services (DHS) office in Dandenong, she transferred to DHS as she lived in the Western Port Bay area and the travel distance was significantly less than that to the CBD of Melbourne, where the ATO office was sited.

9. At DHS Ms Atkins worked in the Child Support Section, mainly collecting debts from delinquent parents who were avoiding their child support payment responsibilities to the other parent.

10. Ms Atkins enjoyed the work and when an investigatory program known as the Search Team commenced she became part of this 14-person unit. The unit tracked parents’ income via access to the Australian Transaction Reports and Analysis Centre and also made direct contact with the parents. Ms Atkins said she enjoyed getting money for the children and in her estimate she was fast and good at my job. Her co-workers and team leaders agree with her self-assessment.

11. Ms Atkins’ established hours of work were from 7.00am to 6.00pm three days per week. She had one day off on flex time and on Fridays she worked from 7.00am to 3.00pm. She frequently performed overtime duties on Saturdays. It appears that she worked for DHS for six and a half years, ceasing work on 24 November 2014. She was then incapacitated for work and since 25 February 2015 has been totally and irreversibly incapacitated for any work.

12. The DHS Child Support Section workplace is a large open-plan office with pods of four workstations. The Search Team occupied four of these pods.

13. On 9 September 2014 a co-worker, referred to as DNRB, requested the help of a senior service officer (Will Thomson) in her dealings with a parent enquiry. The problems could not be resolved immediately and DNRB became angry and inadvertently disconnected the client waiting on the telephone. She then started yelling and swearing loudly. DNRB was taken aside to an interview room by the acting team leader Gillian Nguyen to discuss the problem.

14. It is reported that DNRB slammed the table with her fists and kicked the table with her feet in the interview room and left. She returned to her desk, packed her belongings while yelling loudly and swearing repeatedly and started to exit the office. She walked through the pod Ms Atkins occupied and then suddenly turned back toward her desk and in passing the desk divider, smashed her hand into balloons decorating the area for the AFL Finals and dislodged a figurine of a Smurf (T11, pg. 109). At the request of another worker who was on a telephone call to a client, Ms Atkins asked DNRB to lower her voice. DNRB then threatened Ms Atkins physically, stating I’ll take you outside, I’ll fucking take you outside, come on. (T11, pg. 144)

15. Following this incident Ms Atkins was sent home early, was off work the next day it being her usual flex day and returned to work on the Friday. On the Friday she met with            Mr Ryan, the team leader who recommended referral to the Employment Assistance Program (EAP).

16. DNRB was off work until 25 September 2014, after which she worked reduced hours for a further week. Following the incident and DNRB’s return to work, Ms Atkins became increasingly fearful of DNRB and the possibility of further physical violence or threats to herself.

17. Ms Atkins lodged a complaint to management and an investigation was undertaken. This was completed in late October 2014 with the Department determining that an appropriate course of action had been taken. Ms Atkins had been advised to participate in mediation but refused as she could not face DNRB. She had been told to get over it but was also told that DNRB would possibly be transferred to another team in February 2015 when the next staff mobility arrangement changes were planned to take place. It was suggested to       Ms Atkins that she change teams, and Team 4 was suggested. Team 4 was the same team to which it was planned to shift DNRB in February 2015.

18. Ms Atkins found all these recommendations unsuitable. She felt that they did not address the problem and placed the onus of responsibility on her rather than DNRB, who was the offender. She requested a further review. This review was undertaken in late November 2014 and determined that the original action taken was appropriate.

19. Ms Atkins was referred to the EAP, who in turned referred her to Optum and then Carfi, both of whom are occupational rehabilitation providers. At Carfi she was seen by Mr Oliver Jones, whose qualification is a Bachelor of Applied Science, majoring in psychology. As at 5 November 2014, Mr Jones found that Ms Atkins was continuing to experience significant distress, anxiety symptoms and frequent fearfulness. She continued to see Mr Bruce Perham at Optum the EAP provider throughout the latter half of 2014. He described her as being stressed and emotionally distressed and that her responses were a post‑traumatic stress reaction to the incident with DNRB.

20. The treating consultant Mr Perham considered Ms Atkins to have been severely traumatised by the workplace incident, despite having outside of work support. He described Ms Atkins’ reaction to the events as being one of bitterness that the perpetrator had escaped punishment while she had been left to deal with the trauma of the verbal assault.

21. Ms Atkins did not see her general practitioner until Carfi recommended that she do so.    Dr Dunn has been her treating general practitioner for 30 years. She saw him on            23 October 2014. Dr Dunn recorded the events of the 9 September 2014 and also his opinion that management did not appear to be prepared to do anything meaningful. He subsequently spoke with Mr Oliver Jones from Carfi. In the interim, he provided a WorkCover certificate to the effect that Ms Atkins was not fit for work. He prescribed Serepax 30mgs, half to one tablet twice daily as required, for her anxiety. He saw her regularly thereafter and on 25 November 2014 noted the presence of a total body rash which he attributed to stress.

22. On 6 January 2015 Dr Dunn recorded that following discussion with Ms Atkins, he had recommended she remain off work until the end of February when the protagonist was supposed to leave the team. Serepax was continued and as from January 6 2015 Maxolon for nausea was prescribed on a regular basis.

23. Ms Atkins’ lodged a claim for compensation for an anxiety/stress disorder on                    15 January 2015. Comcare accepted liability to date from 14 October 2015.

24. On 13 January 2015 Dr Dunn responded to a request from Mr Oliver Jones of Carfi for further medical details and his opinion regarding her current treatment plan, prognosis and what barriers were preventing her returning to work. In response, Dr Dunn said he had only one recommendation and one only; he stated that DNRB should have been removed from her position immediately, been counselled and either dismissed or sent to another area of work. He concluded by saying that Christine is a valued employee and if so treat her as such and get rid of DNRB.

25. In a later report dated 27 November 2015 Dr Dunn again expressed his opinion that the workplace events of September 2014 and their mismanagement had led to Ms Atkins’ severe anxiety disorder. On 3 February 2015 Dr Dunn provided Ms Atkins with a further certificate of incapacity until 3 March 2015. The certificate also stated Christine will be able to return to work when employee, “DNRB” is no longer at that worksite.  As a result of that statement and the planned relocation of DNRB to Team 4 on the same floor, the respondent has interpreted this to mean Ms Atkins was fit to resume work on   3 March 2015.

26. On 25 February 2015, Ms Edel Sacco, the Senior Rehabilitation Case Manager of DHS spoke with Ms Atkins by telephone. She noted that Ms Atkins was very distressed on the phone and nervous in talking with her initially. Ms Atkins expressed her opinion that she was not being supported by management at the workplace.

27. On the same day, 25 February 2015, Ms Atkins who was visiting her brother’s house developed a severe bout of shortness of breath due to asthma; which it is claimed was precipitated by her brother Ross, asking her when she was returning to work. In response to his question, she left the room, went to the bathroom and sometime later, the exact time being unknown, called for help. She was found to be severely dyspnoeic. Her nephew, who found her, left the bathroom to telephone for an ambulance. Prior to the ambulance arriving Ms Atkins suffered a cardiac arrest. Her de facto ‘sister-in-law’          Ms Julie Whitehead performed cardiopulmonary massage but not respiratory support.

28. An ordinary ambulance and a Mobile Intensive Care Ambulance (MICA) were dispatched. Ms Atkins was resuscitated with an estimation of the downtime being five minutes, although it was the opinion of Ms Atkins’ brother and nephew, and that of Ms Whitehead, that the period of non-perfusion or zero cardiac output was much longer. The underlying arrhythmia was a very slow bradycardia as indicated by the ambulance officers’ diagnosis of pulseless electrical activity.

29. Ms Atkins was admitted to Peninsular Hospital in Frankston and taken immediately to the Intensive Care Unit (ICU). A diagnosis of severe asthma resulting in cardiac arrest was made and numerous investigations were performed. Some were directed at excluding the possibility that the asthma had been precipitated by an infection or other intervening process. All blood, sputum and urine cultures were negative.

30. As Ms Atkins had suffered an episode of cerebral anoxia she was paralysed and mechanically ventilated (this requiring the use of muscle relaxants), was cooled and sedated (commonly referred to as an induced coma). For seven days she was given large six-hourly intravenous doses of steroids (hydrocortisone and dexamethasone) to limit any cerebral oedema that might result. Early investigation in the form of computerised tomography (CT) scanning of the brain and later several magnetic resonance imaging (MRI) studies were performed. There was no evidence of cerebral oedema, haemorrhage or infarction.

31. An electro encephalogram (EEG) performed on 3 March 2015 revealed myoclonus status epilepticus. These findings were in the opinion of Associate Professor Butler inconsistent with continuing life. A repeat EEG on 12 March 2015 was much improved but showed epileptic foci. Ms Atkins was treated throughout with anti-epileptics, having developed of myoclonic contractions early in her admission. Dilantin (Phenytoin), sodium valproate and Clonidine and later Keppra (Levetiracetam) were administered and her prognosis was regarded as poor.

32. On 7 March 2015 Ms Atkins was noted to be responding to painful stimuli by opening her eyes and withdrawing her limbs. She gradually improved and by 9 March 2015 she was obeying commands at times, opening her eyes spontaneously and looking around the ICU.

33. Thereafter she improved quite rapidly. The controlled ventilation was discontinued on 11 March 2015. On 17 March 2015 she was transferred to the Rosebud Hospital and then to the Golf Links Road Rehabilitation Facility where she spent some two months in intensive rehabilitation under the care of Dr Mary-Lou Leach. She continues to see Associate Professor Butler, neurologist, in the Frankston campus out-patient clinic on a regular basis.

34. Ms Atkins continues to suffer from what is called Lance Adams syndrome defined as hypoxic myoclonic epilepsy. The myoclonus is not fully controlled by her medication. Ms Atkins has been diagnosed with ongoing GAD and after the cardiac arrest and her intensive care stay she has developed a major depressive disorder (MDD). She has total amnesia for the period between 29 December 2014 and 18 March 2015 and in practical terms has had to re-learn how to read, write, speak and think logically.

35. On discharge from hospital Ms Atkins required the services of a full time carer. These services were provided by her ‘sister-in-law’, Julie Whitehead. Ms Whitehead lived in Ms Atkins’ house 24-hours-a-day providing supervision, assistance and household services. This care continued on a diminishing basis until mid-2017. Ms Whitehead became acutely aware that Ms Atkins needed to be encouraged to care for herself. In addition, Ms Whitehead could not afford to live on a Carer’s Allowance.

36. Ms Atkins now lives alone with her dog and performs most of the household tasks herself, including cooking and cleaning. She is in regular contact with her brother, ‘sister-in-law’ and nephew and spends her time walking and gardening. She does not have an active social life.

37. All of her treating doctors and the independent medical experts have assessed her as being totally incapacitated for any form of employment, now and in the future.

    ORAL EVIDENCE

    Ms Christine Atkins

38. Ms Atkins evidence has been summarised under BACKGROUND TO THE APPLICATION. In her evidence before the Tribunal she described the level of her anxiety in relation to being in the presence of DNRB and her frustrations arising from Management’s failure to take (what she considered to be), the appropriate course of action in penalising DNRB, shifting her to another area in the building or dismissing her from employment. Despite the events between late 2014 and when she gave her evidence on 13 November 2017, Ms Atkins’ memory of the workplace chain of events was excellent despite the retrograde amnesia for events from 29 December 2014 to 18 March 2015.

39. It was apparent to the Tribunal that when she became anxious Ms Atkins developed involuntary, jerking, uncontrollable movements of all limbs. When instructed to sit back, rest and relax, these movements abated. The Tribunal had noted that in a period of approximately one hour before she took the witness box there had been no myoclonic activity.

1. Ms Atkins was able to describe the setup of the workplace, the desks and the proximity of her desk to that of DNRB and accurately described the events of 9 September 2014. She was aware of the post-incident referral to EAP and Carfi as well as her ongoing fear that she would suffer physical violence at the hands of DNRB.

2. She gave evidence that her post-arrest myoclonic activity varies from day to day and also described what she termed jerking movements that commenced in her early 20s and continued thereafter.

3. Ms Atkins was able to provide details of her past employment and the fact that she was declared bankrupt, although the date remains uncertain. She having lent $30,000 to her older brother’s wife to establish a coffee lounge in Frankston and the business failed.      Ms Atkins had been forced to sell her house and lost her car. She took an overdose of alcohol and tablets, was hospitalised at the Royal Melbourne Hospital and had recovered. She lived with her brother Ross and Ms Whitehead in Langwarrin until she obtained employment in a Pool and Spa shop in Boronia where she worked for 10 years.  Until May 2017, Ms Atkins had been covered by her income protection insurance as part of her superannuation and she then qualified for a Newstart allowance.

4. Eventually, she was found to be totally and permanently disabled and accessed the TPD insurance from her superannuation fund.  This enabled her to pay off the mortgage on her house and the hire purchase agreement on her car. She no longer sees a psychologist because when liability for her GAD was denied, she could not afford the treatment.

5. She described her activities as predominantly watching television, walking her dog and trying to garden, although she frequently falls.

6. Mr Lenczner commenced cross-examination of Ms Atkins, questioning her in particular about her hay fever, which she said was strictly seasonal, and her smoking. Ms Atkins now smokes 15 cigarettes per day, but after the incident of 9 September 2014 she had increased to 20 or more per day. She was still smoking 20 per day on 25 February 2015. Her evidence was then interrupted when she suffered a tonic-clonic myoclonic seizure, previously referred to as a grand mal epileptic seizure.

7. Appropriate medical treatment was provided and an ambulance called. The seizure rapidly subsided and Ms Atkins had regained consciousness by the time the ambulance officers arrived. although she remained a little drowsy. The Tribunal instructed that she be taken to the nearest public hospital for further assessment. Ms Atkins was taken to the Alfred Hospital, observed for four hours and then discharged.

8. Arrangements were made for several other of the applicant’s witnesses to be interposed while Ms Atkins was indisposed. Ms Atkins was able to resume her interrupted evidence on 15 November 2017.

9. Mr Lenczner continued with his cross-examination and endeavoured to establish the variation in hours and days she had worked prior to and after the events of      9 September 2014. She essentially agreed with the times he provided but did not have a clear recollection of these changes. She was asked if she had had a tremor prior to the events of February 2015, as this had been mentioned by co-workers and also in the clinical records of Peninsula Hospital. In response she said she could not recall having had a tremor or anything like what she now suffered from, but that she was shaking when confronting or feared being confronted by DNRB.

10. Mr Lenczner, in taking Ms Atkins to the various dates she had worked after the events of   9 September 2014, pointed out to her that DNRB had been absent from work and after her return Ms Akins had taken variable times or days off, so that the actual times they were at work together was limited.

11. In response, Ms Atkins said she was nervous and scared when she (DNRB) came back. I was – felt like I was watching my back all the time and that’s probably why the hours varied, because I was going home early or taking longer breaks. Ms Atkins agreed that when DNRB was not at work she was able to perform her duties in a normal fashion. Many of the questions related to evidence given by co-workers on 14 November 2017, which will be addressed later.

12. Ms Atkins confirmed the position of her desk and that DNRB sat behind her and to the left. Ms Atkins faced a window in the office. She was fearful that DNRB might approach her from behind without any warning.

13. Between 9 September and 30 December 2014, Ms Atkins had continued to see her brother and ‘sister-in-law’, every one or two weeks. They would take it in turn to provide a meal, usually in the evening. On 30 December that year, Ms Atkins had entertained her brother, his partner Ms Whitehead, and their son Scott at her home as it was                   Ms Whitehead’s birthday. She could not recall having had any weekend trips or overnight stays or holidays in this period.

14. Ms Atkins said she had been referred to the EAP on the recommendation of Mr Ryan and that initial contact had been made by telephone. A note had been made by an EAP employee to the effect that Ms Atkins’ sleep was poor, her mood was okay and she was anxious at work but not apprehensive after hours. Ms Atkins confirmed that this was the information that was given although her broken sleep had been due to or at least contributed to by recurrent nightmares. Ms Atkins believed that the possible diagnosis of a post-traumatic stress disorder (PTSD) reaction had been made by the rehabilitation counsellor from Optum.

15. Ms Atkins’ recall of her meetings with Mr Ryan appeared to be quite intact. She did recall being told that no further action was to be taken against DNRB, as the investigation into her behaviour had been completed and her inappropriate behaviour had been taken seriously. While Ms Atkins disagreed with this conclusion she did recall that her employer had not discussed any punishment but had given DNRB the option to go to Team 4; but that such a transfer would not occur until after the Christmas break. Ms Atkins said that if she wanted to change teams, the only team she could go to would be Team 4. She agreed that she had been very upset by the fact that DNRB had not received any punishment.

16. Ms Atkins had anticipated that DNRB would at least be transferred to another building. She did not wish DNRB to be sacked or suffer a financial penalty as DNRB had children that she was supporting. She had considered taking out an intervention order against DNRB but after discussing it with the Police she abandoned the idea.

17. Ms Atkins said that she had not wanted to change teams as that meant altering the type of work she was doing in the Search Team. She acknowledged that DNRB had emailed her an apology, but acting on advice given to her by the Optum assessor, she did not accept the apology. Overall, Ms Atkins felt she rather than DNRB was being punished.

18. At this point, Ms Atkins required a break from cross-examination in order to settle her level of anxiety.

19. On resuming her evidence Ms Atkins confirmed that the only option given to her by Mr Ryan was to move to Team 4. She had refused this as that would mean that both she and DNRB were in the same team. After considerable back and forth questioning Ms Atkins confirmed that the movement offers made to both her and DNRB would result in both of them ending up in Team 4. Whichever team it was, they would be on the same floor.      Ms Atkins would therefore be seeing DNRB in the common areas such as the toilet and kitchen and in addition would be doing different work to that which she was best suited.

20. Ms Atkins clarified the setup of the floor, stating there were four pods for the Search Team which equates to 16 personnel and Team 4 was of the same size but situated at the other end of the floor on which they worked.

21. Mr Lenczner referred to entries in the Carfi report (page 71) wherein the assessor sought Ms Atkins’ opinion as to the thoroughness of the internal investigation to which she had replied: She reported that the management appeared to be lenient in dealing with DNRB. Ms Atkins agreed that in her opinion the dealings had been unjust. As no interventions had been made, there had been no improvement in the situation. Ms Atkins agreed that she had been most disappointed that DNRB had not been disciplined nor relocated and that she had remained terrified of DNRB.

22. Mr Lenczner took Ms Atkins through the various EAP entries and those of Optum, including Mr Bruce Perram’s report of 21 November 2014 where he stated:

    Chris is continuing to go to work but feels very bitter that the perpetrator escaped punishment and that she is left to deal with trauma of a verbal assault. The colleague is moving to another team in Feb next year but Chris feels anxious every time she sees her. Some discussion around taking sick leave to get away from the stress.

23. Ms Atkins said this was true reflection of her feelings and opinion at that time.                 Mr Lenczner posed questions based on various hypothetical situations. Following the Tribunal’s explanation of what they entailed, she replied that she could not say.               Mr Lenczner asked further questions about the functions of the Search Team. Ms Atkins could not remember the exact details and the Tribunal did not think these enquiries were relevant to the decision. For example, questions were asked about a change of starting time for Ms Atkins from 7.00am to 8.00am as recommended by Mr Bull. Ms Atkins remembered this conversation because had she changed her times the increased traffic would have greatly increased her travel time. She could not recall any response received from Mr Bull.

24. Mr Lenczner questioned Ms Atkins in relation to entries from 19 December 2015 onwards but she had no recall of these events. This included entries in the EAP records of            11 February 2015 which stated that Ms Atkins felt unsupported, constant assertions that she has a problem and other comments none of which she could recall.

25. Ms Atkins was able to confirm that the reason she had not consulted her general practitioner Dr Dunn until 23 October 2014, was because she was attending EAP and receiving medical and other advice.

26. Mr Lenczner took Ms Atkins to her DNR (do not resuscitate) document signed by her on 27 April 2015. It was noted that her general practitioner Dr Dunn had not countersigned and approved this document until 27 November 2015. She said this was because she had not seen him in the interim.

27. Ms Atkins was asked how long she had known DNRB and whether their work in any way interlocked. Ms Atkins recalled that prior to DNRB joining the Search Team, which she thought was probably two years earlier, she had been involved in work in another area but denied there was any acrimony between her and DNRB then. Ms Atkins believed that the events of 9 September 2014 had been impacted upon by DNRB’s cessation of her prescribed medication, DNRB having said she did not have the money to pay for the items.

Co-Workers’ Evidence

1. On 14 November 2017, when Ms Atkins was unwell, her co-workers Antoinette Watson, Amanda Mitchell and Tamaris Damen were interposed and gave evidence. All three had provided witness statements (Exhibit A2, A4 and A5 respectively). Ms Watson in the course of giving her evidence drew a diagram of the Team 2 pod at the Dandenong DHS office where she and Ms Atkins worked (Exhibit A3).

2. Ms Watson had worked in the Dandenong office since 2009 and left early in 2017. She had been acting team leader on several occasions throughout her period of employment and had known Ms Atkins from the time she started work in 2009. Throughout this period Ms Watson worked in Team 2, which no longer exists as the Search Team has been disbanded. Ms Watson had witnessed the event when DNRB stormed through the pod she worked in DNRB punched the wall divider between herself and Amanda Mitchell, and dislodged one of the figurines on top of the divider. This flew off and nearly hit Amanda Mitchell in the face. There was a great deal of noise and it was impacting on case service officers (CSOs) taking telephone calls. Ms Watson put her client on hold and was told that Ms Atkins would speak to DNRB and calm her down. Ms Watson heard the entire discussion and DNRB’s threat to Ms Atkins including the suggestion that they take it outside and she would take her on.

3. According to Ms Watson, Mr Stephen Brecely intervened and Ms Atkins returned to her desk. Mr Brecely spoke with DNRB but Ms Watson did not overhear their conversation. Thereafter, she noted that Ms Atkins became increasingly agitated, startled and jumpy at the sound of the door opening and particularly the clicking sound that emanated from the door when the workers swiped their pass to gain entry.

4. When DNRB returned to work in early October, both she and Ms Atkins were required to attend team meetings. Ms Atkins on one occasion sat in the corner as close to the door as possible. Shortly thereafter, she decided she could not be in the same room as DNRB during team meetings. It had been Ms Atkins expressed intention to discuss this with management but Ms Watson was unaware of any outcome. On occasion, Ms Atkins had asked Ms Watson to accompany her to the toilets and in the lifts as she was afraid of meeting DNRB alone at these sites.

5. Ms Watson had not been involved in any of the management meetings with Ms Atkins and her knowledge of the content of the meetings was obtained from Ms Atkins. Ms Atkins had expressed her feelings that she was being penalised instead of DNRB being counselled or shifted to a different desk or team. Ms Watson had been so concerned about Ms Atkins’ level of fear and the request to accompany her that she lodged an incident report with     Mr Ryan. She said she was told to keep out of it as management were doing everything they could.

6. Ms Watson had not been told that Ms Atkins had been offered the option to shift her desk  nor was she told by Ms Atkins that she was about to leave. She had noted an increasing level of stress and what she described as problems escalating prior to 25 November 2014. Ms Watson confirmed that if Ms Atkins had changed teams she would not be able to continue her Search Team work. After Ms Atkins left work Ms Watson had kept in touch with her by telephone until the events of 25 February 2015. She ascertained that             Ms Atkins was doing very little, seeing only her brother and ‘sister-in-law’ and spending most of her time attending doctor’s appointments with her doctors and walking her dog.

7. Ms Amanda Mitchell is a CSO in the Child Support Section of DHS and had been in the same team as Ms Atkins. She too had seen the events of 9 September 2014, her desk being close to Ms Atkins and approximately four meters from DNRB’s desk. Ms Mitchell regarded DNRB as a friend but was also frightened of her, as DNRB’s behaviour had been abnormal for at least the previous two years. She said she remains scared of DNRB who continues to work at DHS. Her observations of Ms Atkins after the verbal attack and threatened physical violence on 9 September 2014 was similar to that of Ms Watson, in terms of Ms Atkins response to doors opening, visibly shaking when DNRB passed her desk and DNRB glaring at her across the partition.

8. Ms Mitchell confirmed that Ms Atkins was an extremely good worker with very high team statistics. Under cross-examination Ms Mitchel said she was unaware that there had been an offer that Ms Atkins change desks but she was aware that she had been offered a change of team. She and Ms Atkins had met with Mr Bull or Mr Ryan, she could not recall which, and asked if DNRB could be shifted. Mr Bull had said that shifting DNRB would be a short term remedy only and that staff had to get along with one another. She was aware that DNRB was transferred to Team 4 in February 2015. Ms Atkins had received a similar offer but had refused as it could not be guaranteed that she would not end up in the same team as DNRB.

9. Ms Mitchell said that Ms Atkins remained upset that DNRB was still in the team as she believed that DNRB had been out of line and should have been subject to disciplinary action. Ms Mitchell does not continue to see DNRB, but understood that DNRB has since been shifted to another floor and remains very aggressive.

10. Ms Tamaris Damen, who still works as a CSO with DHS, was part of the Search Team working in the same pod as Ms Atkins for nearly six years. She is now in Team 8 as Team 2 was disbanded 18 months ago. She did not witness the incident of 9 September 2014 returning from her lunchbreak just after the incident.

11. On her return from lunch, Ms Damen noted that many of the staff were agitated and a couple were quite disturbed. Those who were most upset were Ms Atkins, Ms Mitchell,   Ms Watson and Mr Johnathon Inglis. Thereafter, she observed a complete change in      Ms Atkins’ mood and behaviour. She became jumpy, scared and fearful of another threat from DNRB. It had been Mr Inglis who had asked Ms Atkins to endeavour to quieten DNRB down.

12. In her statement Ms Damen recalled an occasion when Ms Atkins was working overtime on a Saturday morning, this having been offered to her on the understanding that DNRB would not be working overtime on Saturdays. However, on this occasion both were present. DNRB made loud comments constantly and admitted that she was suffering from a hangover from the previous night. She was banging on her desk, resulting in Ms Atkins jumping and shaking.

13. Ms Damen accompanied Ms Atkins as a support person to a meeting on   16 January 2015. Management was represented by Mr Bull (service manager), Ms Jennifer Hahne the acting team leader and Mr Jones from Human Resources.

14. Ms Damen had taken handwritten notes throughout the meeting and within two hours of the meeting had typed these out and printed them. Their notes were attached to Exhibit A5 and state that Mr Bull greeted Ms Atkins asking her how her break was? This occurred on them entering the room and was overheard by several other members of staff, all of whom were horrified. Mr Bull said they were there to assist Ms Atkins in returning to work and they were invited to ask questions.

15. Ms Atkins asked Mr Bull if it was possible that as DNRB was moving to mainstream duties she could be relocated to the fourth floor. Mr Bull said this was impossible and there was no guarantee that Ms Atkins’ work would not be relocated to the fourth floor at some stage. Ms Atkins was not able to suggest any moves that management could take to get her back to work as the situation was such that she would continue to run into DNRB in the kitchen, the toilets and the lifts.

16. The notes recorded that Mr Bull advised them that DNRB was thinking of suing Ms Atkins, to which Ms Atkins had responded: You were worried about DNRB suing, but not me? It was suggested that Ms Atkins return to work on Wednesdays, she having at some stage changed from having Wednesday rather than Thursday off. According to Mr Bull, it was impossible for him to guarantee that DNRB would not be in on a Wednesday. Ms Atkins asked if she could discuss this with her general practitioner before making a decision, regarding returning to work.

17. In response Mr Bull asked why her doctor should be involved in stating whether or not she could return to work. Ms Atkins and Ms Damen felt this to be a very odd comment to make. A comment was also made that management had not been receiving adequate medical certificates regarding strategies for Ms Atkins’ treatment and her response to treatment. It was suggested that she may be required to see a DHS doctor for assessment. Ms Atkins had previously seen the facility-nominated doctor for a neck injury and was reluctant to do so again.

18. In the course of the meeting and the constant asking of the question: what do you want us to do for you Chris? Ms Atkins had become visibly distressed and shaking. Mr Bull said they would credit some of her annual leave to the 3^rd of February 2015, given her sick leave was due to run out on 22 January 2015. It was noted that Ms Atkins had Comcare claim forms in front of her at the meeting. The notes said that Mr Bull advised that it was highly unlikely that she would be successful should she apply for compensation.

1. There was some discussion about a start time for work in the event Ms Atkins resumed work. Her normal starting time had been 7.00am but Mr Bull suggested 7.30am and required an email to be sent if she still wanted to start work again at 7.00am, as this would absolve them of any duty of care if DNRB was to do anything.

2. It had been Ms Damen’s impression that despite the comments of Ms Hahne and Mr Bull that they were there to help Ms Atkins, their actions were the opposite.

3. Ms Damen kept in contact with Ms Atkins between the meeting of 16 January 2015 and 25 February 2015. She thought she would have had three telephone conversations with Ms Atkins and had been concerned at the amount of medication Ms Atkins said she was taking, she having said that the boxes of tablets covered the top of her microwave.         Ms Atkins had told her that she was having trouble walking, standing and talking and when she went to the supermarket had to hold onto a trolley.

4. It was Ms Damen’s impression that Ms Atkins’ speech was slurred. She likened it to the slurring of speech following a stroke. These changes were quite different to the appearance and speech of Ms Atkins on 16 January 2015 and persisted throughout the next two to three weeks. Ms Atkins had complained to Ms Damen of severe lethargy.

5. Under cross-examination Ms Damen advised that she had spoken with Ms Atkins after she was discharged from the rehabilitation facility and her speech was no longer slurred, just extremely slow. Ms Damen confirmed that the only times she had seen Ms Atkins severely agitated prior to her ceasing work in November 2014 had been when DNRB was in her proximity.

6. Mr Lenczner’s cross-examination of Ms Damen was lengthy but she did not change her evidence or her opinion reiterating her belief that it had been predetermined before the meeting that DNRB was not to move floors. Given the conflict in the records of Mr Bull and those kept by Ms Damen, it was decided that Mr Bull should give evidence before the Tribunal.

   Ms Julie Whitehead

7. Ms Whitehead is the partner of Mr Ross Atkins, the applicant’s twin brother, and was the full time carer of Ms Atkins from May 2015 until 25 June 2017, although within that time the level of care reduced progressively. She has been in a de facto relationship with         Mr Atkins for over 30 years, has a son, Scott and has known Ms Atkins for over 30 years. She provided a statement dated 6 June 2016 (Exhibit A6). The statement relates to the events of 25 February 2015.

8. Mr Ross Atkins had invited his sister for an evening meal on that day. Ms Atkins had arrived late in the afternoon, wearing a track suit in order to help as Ms Whitehead was sorting out rubbish from under their house. They intended to put their home on the market as they were planning to move to Queensland. Ms Whitehead described her ‘sister-in-law’ on arrival as looking pale, hot and slightly clammy. She was feeling tired and appeared stressed. They sat on the front steps of the house and chatted. Intermittently,                  Ms Whitehead went around to the back of her house, collected some more rubbish (timber cut-offs and discarded bricks) brought it to the front of the house and deposited it in a skip. Despite her original intentions it was clear that Ms Atkins did not assist in the rubbish collection. Ms Whitehead said the rubbish had been stored under the house and was not very dusty.

9. Ms Whitehead and Ms Atkins went inside later to watch television before Ross Atkins started preparing dinner. Ross was watching television.

10. At a time she could not recall, Ms Whitehead’s son, Scott entered the lounge room and told his mother he was going to call an ambulance. This was the first time they realised that Ms Atkins was no longer in the lounge room with them. Scott Atkins had found his aunt in the bathroom in a state of distress. Ms Whitehead went to the bathroom found her ‘sister-in-law’ sitting on a small table in front of the hand basin leaning forward onto the basin. She was having difficulty breathing.

11. Ross Atkins went to move his car to make room for the ambulance while Ms Whitehead remained with Ms Atkins. Scott, who was still talking to the 000 operator, or the ambulance service on the telephone handed the telephone to his mother and while she was describing Ms Atkins’ state she noted that Ms Atkins had ceased breathing.            Ms Whitehead was instructed to commence cardiopulmonary resuscitation (CPR), which she did. In her evidence she informed the Tribunal that while she had done a CPR course she had not learnt how to perform the ventilation techniques of CPR and therefore only performed external cardiac massage. In her statement she says, it seemed like no time at all had past when the paramedics arrived and quickly took over from me. The ambulance conveyed Christine to the Frankston Hospital.

12. Ms Whitehead outlined Ms Atkins’ current treatment and the frequency of her attendance on her general practitioner, her psychologist, the physiotherapist, Dr Leach (the rehabilitation physician) and Associate Professor Butler (the neurologist). She provided a list of Ms Atkins’ current medication. The Tribunal was also informed that Ms Atkins had received incapacity payment benefits from her superannuation fund for a period of two years and subsequently had been paid a total permanent disability lump sum from the Public Service Superannuation Fund. This had enabled her to discharge the mortgage on her house. She did not have a regular income. Ms Atkins had applied for the disability support pension and while this was being assessed was receiving the Newstart allowance.

13. Ms Whitehead expanded on the content of her statement, despite Mr Lenczner’s objections, which were in part overruled by the Tribunal. She had avoided discussing the workplace problems and their sequelae as once the subject was raised Ms Atkins could not be distracted from talking about it endlessly, much to her distress.

14. Ms Whitehead recalled that she had been present when Ms Atkins suffered an asthma attack on Christmas Eve in 2006 when they were preparing Ms Whitehead’s house for the Christmas festivities. Ms Atkins had been covered in dust when she incorrectly used her new vacuum cleaner. She had rapidly recovered from that episode and had resisted being taken to hospital by ambulance. She was taken to Frankston Hospital, was observed for four hours and then discharged with a Ventolin inhaler. To Ms Whitehead’s knowledge    Ms Atkins did not have any further asthma attacks until 25 February 2015.

15. In the course of her evidence Ms Whitehead said that Ms Atkins’ medication had been reduced in dosage recently. A list of medications was provided. The major changes had been a reduction in the anti-epileptic medications Keppra and Clonazepam.

16. Ms Whitehead was asked if she had noted any problems with Ms Atkins’ speech and gait prior to the event of 25 February 2015. It had been ascertained from the medical records that she had been taking Serepax and Maxolon, two drugs that can cause what is called tardive dyskinesia producing slurred speech and difficulties of gait and balance. While    Ms Whitehead could not recall the exact timing she had noted on occasion when she had accompanied Ms Atkins to do some supermarket shopping she looked as if she was intoxicated. On consideration she thought this was after the event of 25 February 2015. She had taken photographs of the packaging of some of the drugs. This revealed that the first prescription for Serepax had been written on 20 October 2014 and the second prescription appeared to be labelled 3 May 2016.

17. Under cross-examination Ms Whitehead made it clear she could not remember all the exact dates of various events. While she had not pressed the subject it, was clear to her that, she had been upset that DHS management seemed to be doing nothing to help      Ms Atkins avoid contact with DNRB.

    Mr Ross Atkins

18. Mr Atkins provided a short statement dated 19 May 2016 (Exhibit A7)

19. Mr Atkins is the applicant’s twin brother. In his statement he said that while he was aware that his sister was going through some work issues, he avoided the subject as any such discussion would result in her becoming anxious and overly focused on the problem. He had invited his sister to dinner on 25 February 2015. When she arrived late in the afternoon, she sat and spoke to Ms Whitehead outside and when she came inside he noticed she looked tired and pale, as if she had not had enough sleep. He offered her a beer but she declined.

20. He asked his sister when she was going back to work she said I have to see the doctor first. She then looked distressed and as if she was about to cry. After a few minutes she left the room visibly upset. Shortly thereafter, his son Scott came into the room saying, I have to call an ambulance and then he heard his sister calling for help from the bathroom. Ms Whitehead ran to the bathroom with Mr Atkins following. He heard his sister gasp, I can’t breathe. Mr Atkins went and moved his car to make room for an ambulance and when the ambulance entered the street his son told him that Ms Atkins had collapsed.      Mr Atkins showed the ambulance officers to the bathroom where Ms Whitehead was performing CPR on Ms Atkins. Mr Atkins’ statement states the paramedics took over from Ms Whitehead and worked on Ms Atkins for almost an hour before stabilising her for transport to the Peninsula Hospital.

21. In his evidence before the Tribunal Mr Atkins confirmed that Ms Whitehead had been     Ms Atkins’ full time carer since her discharge from rehabilitation, living with Ms Atkins. Since Ms Whitehead returned to full time employment, he assisted his sister by taking her shopping every Monday and transporting her to her bank, chemist and wherever necessary at other times. He telephoned her regularly and if she needed anything done, he assisted. He was not able to put a timeframe on the various events described in his statement. Mr Atkins had not been present when his sister experienced the asthma attack in 2006.

22. Mr Atkins had visited his sister regularly in hospital and said she had been in an induced coma for at least the first week. After that she remained unconscious despite the drugs having been reduced or ceased. He had been advised that life support should be ceased. He and Ms Whitehead agreed that on approximately the eighth day of Ms Atkins admission, he had visited, was told there had not been any change and when he put his hand out to say goodbye she woke up. At that time Ms Atkins did not respond to any commands but according to him she looked when he pointed to someone in the corner.

23. On questioning by Mr Lenczner, Mr Atkins described his sister’s response to his question as to when she was expecting to return to work. He said she frowned, pouted and looked as if she would burst into tears. Mr Atkins had no idea of the time gap between his sister leaving the room and her calling out. He agreed it could be from a few seconds to up to 20 minutes. Mr Atkins was challenged as to the accuracy of his memory, given there was something like a 12 month or more delay between the event and him making his statement. Mr Atkins insisted his memory for life-threatening and life-ending events was excellent.

24. On further questioning Mr Atkins agreed that Ms Atkins response to his question may have been because she was feeling unwell although he had mentally connected the look on her face with the question he had asked.

25. The Tribunal queried why Scott Atkins had not been asked to provide a statement or give evidence, given he was the person who first attended his aunt in the bathroom.

26. Following Mr Atkins evidence, the Tribunal adjourned the hearing as Mr Lenczner sought further instructions with regard to the calling of more witnesses. It was agreed that the applicant’s solicitors would obtain a statement from Scott Atkins and Ms Serpell informed the Tribunal and the respondent that Dr Burdon intended to provide an unknown number of medical journal articles in support of the argument that anxiety induced asthmatic attacks. This would necessitate Dr Trembath being given the opportunity to read these before the hearing resumed.  

    Scott Atkins

27. Scott Atkins prepared a statement dated 23 November 2017 (Exhibit A8). He was present in the lounge room of his parents’ home on 25 February 2015, where his parents and aunt (Ms Atkins) were watching television. Scott had placed a separate chair beside the sliding doorway between the lounge room and the hall, directly opposite the sliding door into the bathroom. He did not recall if his aunt had been in the lounge room and if so where she was sitting before he entered. He did not see her leave the lounge room but if she did she would have passed behind him.

28. While watching television he was distracted by hearing his aunt’s voice coming from the direction of the bathroom. The door to the bathroom was closed but he was alerted by her tone of voice. He went immediately to the bathroom and found his aunt bent over the basin and extremely distressed as she was having trouble breathing. Her arms were folded and braced against the basin. She told him to call for an ambulance.

29. Scott Atkins went to the kitchen and dialled 000 on the landline. As he moved to the telephone he told his parents that his aunt required an ambulance. Ms Whitehead immediately rushed to the bathroom to assist his aunt. As the 000 operator asked him to describe his aunt’s condition he took the cordless telephone to the bathroom and gave it to his mother. Scott then left the bathroom and opened the front door in readiness for the ambulance officers. He had taken a small table from the hallway and placed it in the bathroom, so that his aunt could sit on this table whilst she supported her forearms and body on the hand basin.

30. Scott Atkins estimated that the paramedics arrived within five minutes of his telephone call and the second ambulance (MICA) arrived three minutes later.

31. Scott had been present at the events of Christmas Eve 2006 when his aunt had suffered an asthma attack. On that occasion she did not appear to be particularly distressed. Scott confirmed that his parents and aunt were smokers and had been for many years. He thought they had all been smoking on 25 February 2015. He confirmed that on occasions when they visited his aunt for a meal they would stay and sleep at her house if they had been drinking alcohol or the hour was late. This happened sporadically.

32. While Scott was aware that there was a skip outside and his mother was tidying up and decluttering the house, he had not seen his aunt assisting.

33. He confirmed that the family had pets, two dogs that were kept outside and three cats. He had no idea where the cats had been. While he was aware that his aunt had taken time off work, he had no knowledge of why she had done so.

    Dr Brian Dunn

34. Dr Dunn has been Ms Atkins’ general practitioner for at least 30 years. Since 2011 he has seen her at his consulting rooms in Wattletree Road, Malvern. Dr Dunn provided several reports (Exhibit A11 and R4). In addition his clinical records were summonsed.

35. In relation to any history of asthma, he agreed that there was only one mention of this condition and the prescribing of Ventolin in 2007. Later in his evidence he said in  regard to the asthma:

    Well, extremely mild if existing at all, given she only had one prescription in 2007 for any anti-asthma medication.

    Dr Dunn had no knowledge of the event of 9 September 2014, until Ms Atkins presented on 23 October 2014 when she told him she had been threatened at work by a fellow employee. Dr Dunn’s actual clinical record entry said:

    Has been threatened at work by a fellow employee. This was witnessed by other employees. Management don’t appear to be prepared to for anything meaningful about it. Chris has given me permission to talk to Oliver Jones from Carfi.

    Dr Dunn described Ms Atkins as being very distressed and tearful. According to the notes he had created a letter for WorkCover regarding her capacity for work. He prescribed Serepax, an anti-anxiety agent. This medication was re-prescribed continuously up until 25 February 2015.

36. Dr Dunn had at first diagnosed an anxiety disorder but given the continuing re-living of the experiences and her general anxiety state he then determined the correct diagnosis was PTSD. He had not referred Ms Atkins to a psychologist or psychiatrist in 2014 as he believed, given his experience and knowledge, he could handle the condition. He would have referred her to a psychologist or psychiatrist if he considered it necessary. He confirmed that he had no clinical history of Ms Atkins having suffered from any myoclonic type movement in her limbs prior to the events of 25 February 2015. He was taken to an entry in the records of Narre Warren clinic where he had worked for a period of time and the Emerald records where in August 2001 a Dr Z.D. had recorded a history of right-sided body twitching. Dr Dunn said this was not his entry and he had no knowledge of it but given that she had earlier been prescribed Phenergan it could have been a side effect of this drug.

37. Dr Dunn was unaware of the reports of Ms Atkins suffering from dysphasia, loss of balance and ataxia in January 2015. The Tribunal asked if he thought this could have been due to the tardive dyskinesia as a side-effect of Serepax and Maxolon, both of which Ms Atkins was taking in the month of January 2015. He agreed that this was likely although she had not reported these symptoms to him.

38. Dr Dunn gave further evidence in support of the email he had sent to Mr Oliver Jones of Carfi on 13 January 2015, wherein he stated:  (Transcript 22 January 2018, page 48)

    Dear Oliver, the answer to your questions is covered by one recommendation and one only. It’s generally acknowledged that the other employee, DNRB, lost her temper in the workplace and made threatening comments directed at Christine and other employees. If this is true, DNRB should have been moved from that position immediately, received counselling and then either dismissed or sent to another area of work. The fact that she remained at her normal place of work and others had to accommodate her behaviour, makes me wonder what influence DNRB has over management at that work site. Is this nepotism at play or is she receiving a sweetheart deal from management for some other purpose? Christine is a sensitive person and this has upset her a great deal, but to try and blame her for this fiasco is ludicrous. I understand Christine is a valued employee and if so, treat her as such and get rid of DNRB.

    In justifying this letter he said it was essential that given Ms Atkins’ level of distress he felt it needed to be stated clearly what he thought was going to be the most likely way of getting her back to good health and back to work.

39. Under cross-examination Dr Dunn did not resile from any of his expressed opinions. Mr Lenczner tendered further reports from Dr Dunn - the letter of 14 October 2015 and that of 27 November 2015. Dr Dunn affirmed the opinions he expressed on          14 October 2015 that being a chronological summary of Ms Atkins diagnoses, workplace abuse and subsequent diagnosis and that she was unlikely to improve further from her hypoxic brain injury. He considered the respiratory arrest of 25 February 2015 had possibly been triggered by the anxiety disorder.

40. In the letter of 27 November 2015, Dr Dunn outlined the events of 9 September 2014, the devastating effect that had on Ms Atkins and what he considered to be a failure on the part of management in not disciplining the perpetrator. He concluded that he had no doubt that the workplace incident in September 2014 and the mismanagement of the workplace led to Christine’s severe anxiety disorder and had caused the severe asthma attack.

41. In re-examination by Ms Serpell, Dr Dunn clarified that while in early February 2015 he had suggested a graduated return to work program, this was subject to him reviewing     Ms Atkins before expiry of the certificate issued until 3 March 2015 and that any such return to work program would have been graduated over a period of four to six weeks, with regular review within that period to assess her progress.

    Evidence of Team Leaders active between 9 September 2014 and 16 January 2015

    Mr Jarrod Bull

1. Mr Bull was acting on higher duties between 30 September and 31 October 2014 and returned to the team leader role as of 17 November 2014. He was the team leader in what he termed Intensive Collection Services, Team 2 where Ms Atkins and the individual DNRB were working. Mr Bull had replaced Ms Nguyen who was the acting team leader from 27 October to 16 November 2014. Prior to the 27 October 2014 Mr Ryan had been the team leader of Team 2.

2. In his witness statement (Exhibit R6) Mr Bull described the layout of the open plan office on the third floor of the DHS building. A schematic diagram was provided. According to Mr Bull the team consisted of approximately 14 officers.

3. In his statement Mr Bull addressed all the meetings he had attended in relation to Ms Atkins’ condition and complaint. While still in the role of service manager, he had been approached by Ms Atkins and Ms Mitchell seeking to discuss their concerns about the incident of 9 September 2014. He said he spoke to them for just over an hour and the following day sent an email summarising the advice he had given. He had approved their overtime working hours and suggested a meeting with himself and Mr Robert Ryan to discuss the facilitation of a meeting of all parties; time for Ms Atkins to attend EAP and an increase in the EAP sessions already provided.

4. Mr Bull had advised that the incident was still being investigated, was subject to privacy concerns and he was not in the position to provide any detail. Ms Atkins had expressed her opinion that DNRB should be removed from the workplace/team.

5. The second meeting was held on 27 October 2014 as planned and included Mr Ryan. Once more Ms Atkins expressed her dissatisfaction to management’s response to the incident. Mr Bull had stated his desire to concentrate on management action that could assist Ms Atkins. In order to do so, he arranged for Ms Atkins to continue with EAP; be provided with rehabilitation (early intervention); attend mediation with DNRB; and asked Ms Atkins to consider moving teams or moving desk station. As Ms Atkins rejected the idea of moving team or seats this option was not pursued further. Ms Atkins also notified Mr Ryan that she did not want to attend mediation as she had done nothing wrong and should not be so penalised.

6. Mr Bull had explained that DNRB would be moving teams through the annual mobility process and this would happen in February 2015. It was planned to move her to Team 4 which was on the same floor but at a site more distant to Ms Atkins’ desk.

7. Mr Bull denied that he had informed Ms Atkins that the team she would be shifting to, if she accepted the option, was Team 4. He did admit that the possibility that the two women would once again be in the same team had been raised. Prior to making his statement, Mr Bull had apparently been informed of Ms Atkins’ evidence to the Tribunal. While he did not reject all the content of Ms Atkins evidence he enlarged on what had been said, in particular that he was not able to predict what would happen in the future in terms of office seating and placement and that the shifting of DNRB, while a simple option, had its limitations.

8. When Mr Bull became team leader on 16 November 2014, DNRB had been sitting close to his desk and was some six metres from Ms Atkins. As Ms Atkins ceased work on             25 November 2014, Mr Bull’s contact with her had been limited to six working days. In that time he had not observed Ms Atkins shaking or jumping visibly in her seat and had not seen DNRB glaring at Ms Atkins.

9. Mr Bull had attended the meeting of 16 January 2015, along with Ms Hahne, Mr Jones, the EAP rehabilitation consultant and Ms Damen, Ms Atkins support person at the meeting. Prior to making his statement Mr Bull had been shown Ms Damen’s statement of 24 January 2017. He disagreed that this was an accurate description of what occurred at the meeting of 16 January 2015. In particular he had no recall of asking Ms Atkins how she had responded to having a break, nor her response; he did not say that DNRB was thinking of lodging a bullying or harassment charge or suing Ms Atkins; he agreed that he had asked Ms Atkins why she needed her doctor’s approval if he always went on what she told him.

10. In his statement Mr Bull stated he had made this comment because he wanted to try to assess whether Ms Atkins’ doctor was effectively supporting her in identifying strategies to help her to return to work. He recalled Ms Atkins’ comments about having had a bad experience with a DHS-appointed doctor in the past. He denied telling Ms Atkins her Comcare claim would not likely succeed as it was not his place to make any comments regarding a Comcare claim. To his recollection, neither Ms Damen nor Ms Atkins requested that DNRB be moved to the fourth floor but he had heard Ms Damen ask            Ms Atkins if she would like to move to the fourth floor. He denied that he had stated that he required an email from Ms Atkins confirming a start time of 7.30 a.m. which would absolve DHS of any duty of care.  

11. Mr Bull stated that in February and August 2015, DHS employees had the opportunity to move teams if they so desired. On or around 23 February 2015 DNRB had moved out of Team 2, to another team on the same floor. Both teams shared the same kitchen and bathroom facilities and used the same lifts. According to Mr Bull, Ms Atkins had run out of personal leave credits by the time she was admitted to hospital and paid leave credits early in April 2015. His attempts to seek approval for paid miscellaneous leave were refused.

12. Mr Bull was cross-examined at great length by Ms Serpell. Throughout, Mr Bull maintained the accuracy of his statement and did not deviate from this. In response to several questions he said he could not recall the exact events and he often misunderstood the question, particularly those relating to his lack of power or authority to make any decision in relation to DNRB. He then contradicted this answer, stating that he had thought he might have the power to alter the decision. These points were not clarified by further questioning.

    Mr Robert Ryan

13. Mr Ryan’s statement dated 9 January 2018 (Exhibit R7) carried attachments outlining the floor plan of the third floor of the DHS building in Dandenong and his summary of the meeting of 27 October 2014. Mr Ryan identified himself as being the team leader from      9 September to 24 October 2014 and having previously been the team leader since     June 2012.

14. On 9 September 2014, he was on personal leave and on his return on 10 September 2014 both Ms Atkins and DNRB were absent from work. On 11 September 2014 he referred Ms Atkins to the EAP. Throughout the period of his involvement Ms Atkins was strongly of the view that DNRB’s employment should be terminated. Mr Ryan had had a number of lengthy discussions with Ms Atkins thereafter and had informed her that it was not possible to tell her the outcome of any Code of Conduct or management action, these being subject to privacy provisions. He did not recall telling Ms Atkins that DNRB was not being allowed to do overtime. He denied he told Ms Watson that she should keep out of the matter as it was not her concern.  

15. Mr Ryan summarised the options provided to Ms Atkins at the October meeting as being to move to a different team; attend mediation; or move seats within the team. Ms Atkins was not interested in any of those options as she said she was the victim and should not have to be the one to move. When DNRB had returned to work, Mr Ryan had moved seats so that DNRB was sitting next to him. He was then able to monitor her activities and provide Ms Atkins with any protection she might need.

16. Mr Ryan further denied that he and Mr Bull had told Ms Atkins that the only team she could move to was Team 4 and this was the team to which DNRB would eventually move. Mr Ryan could not recall ever seeing Ms Atkins shaking or jumping in her seat, nor had he observed DNRB glaring at Ms Atkins as she walked past. Mr Ryan said he had not advised Ms Atkins to accept an apology proffered by DNRB, Ms Atkins having advised him that she did not want to have anything to do with DNRB.

17. Under cross-examination Mr Ryan could not recall exactly when DNRB had returned to work but the department had been in contact with her treating doctor and it had been anticipated that when she did return there would be no repeat of the behaviour of                9 September 2014. Various conversations Ms Atkins had claimed to have with Mr Ryan or in Mr Ryan’s presence were beyond Mr Ryan’s recall. He did have reasonable recollection of the meeting of 27 October 2014 despite the fact that he was no longer the team leader at that time but had attended the meeting.

18. Mr Ryan confirmed that Ms Atkins was not interested in moving from her seat or from her team and that she had said in effect why should I? I am the victim here. According to       Mr Ryan, he did not have the power to determine when a staff member would move teams.

19. In re-examination Mr Ryan said it had been his normal practice to speak to every member of his team on a daily basis and that he would walk around and speak to them at their desks. He did observe Ms Atkins on a regular basis although she was frequently not at work in the period during which he was team leader.

    Ms Gillian Nguyen

20. Ms Nguyen is a CSO who worked in the same investigation team as Ms Atkins. On            9 September 2014 she was acting informally as the team leader as Mr Ryan was on leave. She witnessed the incident between Ms Atkins and DNRB and heard the verbal attack on Ms Atkins. Ms Nguyen took DNRB aside into a nearby office and spoke with her, following which DNRB left to collect something from her desk and on returning to the room she knocked on the partition wall of Ms Atkins’ pod, displacing figurines attached to the partition. Following the incident Ms Nguyen approved Ms Atkins going home early because she was upset.

21. Ms Nguyen was formally promoted to acting team leader until 17 November 2014 when Mr Bull joined their team.

22. Ms Nguyen had been shown the diagram of the third floor and said there were three errors in relation to the seating but these were not material. She confirmed that Ms Atkins was a very good worker and continued to be after the incident but had raised her concerns about attending team meetings and other gatherings with DNRB present. Ms Nguyen had been party to emails to Mr Oliver Jones, documenting these concerns.

23. Despite Ms Atkins’ reported distress and her claims of deterioration in her work, Ms Nguyen had not noted any such deterioration and recalled seeing emails from Ms Atkins, seeking the allocation of additional work. These emails, dated 3, 8 and            14 November 2014 were attached to her statement.

24. Ms Nguyen had not noticed anything unusual in Ms Atkins behaviour, such as her shaking or having startled jumping responses when the doors were opened or closed. She was cognisant of the fact that Ms Atkins and other members of the team had complained that DNRB had not received any punishment and Ms Atkins had expressed the opinion that DNRB should have been sacked.

25. Ms Nguyen was aware that DNRB had attempted to apologise to Ms Atkins and that          Ms Atkins refused to accept the apology.

26. Under cross-examination Ms Nguyen confirmed that she had not been asked to provide a statement for the investigation into the incident. She had not submitted a statement because while she was considering doing so Mr Ryan had advised staff that they had received enough statements.

27. Ms Nguyen confirmed that she was not informed of the outcome of the investigation into the incident conducted by Mr Ryan. Ms Nguyen had not seen the emails between           Ms Atkins and Mr Jones of Carfi; nor could she recall Ms Atkins talking to her about the matters addressed in these emails.

    Evidence of Expert Neurologists

    Professor Jacques Joubert

28. Professor Joubert provided two reports (Exhibit A17 & A18). He was a general physician practising in South Africa from 1976 to 1983 and then trained in neurology in Edinburgh. His Professorship was from the Medical University of South Africa. He also has an Honouree Professorship from the University of Franche Compe, France. He is now a consultant at the neurology practice at St Vincent’s Private Hospital, having formerly being the Chief Investigator for the Integrated Stroke Care Project at Epworth Hospital and        St Vincent’s Hospital Melbourne from 2009 to 2015. His areas of research have been in stroke management, vascular disease and also in headache.

29. In his initial report of 24 May 2017, Professor Joubert had relied predominantly on the history provided to Associate Professor Michael Jelinek and the reports of Dr Morgan Rose, a neurology registrar at Frankston Hospital. The history gleaned from these reports had been corroborated by Ms Atkins and Ms Whitehead. Professor Joubert had concluded that Ms Atkins had a history of severe asthma attacks requiring steroids and on               24 December 2006 had been taken to the Emergency Department of Frankston Hospital with severe asthma but did not require admission.

30. Professor Joubert was aware of the episode of 9 September 2014 and Ms Atkins subsequent diagnosis of a severe anxiety disorder, resulting in her ceasing work on         25 November 2014. He had also been made aware of the collapse of 25 February 2015 and Ms Atkins admission to the Frankston Hospital ICU, following the cardiac arrest.  According to the history Professor Joubert had received, seizures became apparent in the ICU and anticonvulsant medication had been prescribed. She was then transferred to the rehabilitation unit in Golf Links Road and had remained in rehabilitation for three months.

31. Professor Joubert had the report of Dr Morgan Rose in relation to the diagnosis of hypoxic brain injury following respiratory arrest as a consequence of an asthma attack and the development of ongoing myoclonus and seizures. Dr Rose reported on 21 April 2015 that the myoclonic jerks involving all four limbs persisted and were accompanied by jerking neck movements and dysarthria (difficulty in speaking). Thereafter, Ms Atkins attended upon Associate Professor Butler, initially at three monthly-intervals and as of January 2017 was to attend on an annual basis. Professor Joubert was aware that during her recovery from the arrest that Ms Atkins had undergone neuropsychological testing. He reported that Ms Atkins had ongoing symptoms of severe anxiety and had developed depression. In addition Ms Atkins had a severe tremor and occasional startle responses in relation to loud noises, suffered from frequent falls and was weak and tremulous and having difficulties with many activities of daily living.

32. On examination, Professor Joubert recorded Ms Atkins weight at 41.6 kg and her height at 160 cm. He attributed her general weakness to a marked loss of weight. Cranial nerve testing was normal as was mentation. He noted a marked intention tremor of both upper limbs, more on the left than the right and a constant tremor (titubation) of the head. He described Ms Atkins gait as being slow festinating.

33. Professor Joubert concluded from the documentation, and the history given and his physical examination that Ms Atkins suffered from post hypoxic brain damage following an asthma attack and cardiac arrest. He agreed with the diagnosis of Lance Adams syndrome and considered she had a poor prognosis. Based on the documentation provided he accepted that Ms Atkins suffered from a GAD arising from her employment with DHS and that the anxiety had precipitated the asthma attack leading to cardiac arrest. Professor Joubert concluded, on the balance of probability, that there was a direct link between Ms Atkins’ employment and the asthma attack, the cardiorespiratory arrest and the development of Lance Adams syndrome.

34. Professor Joubert considered Ms Atkins to be totally incapacitated for any form of employment as a result of the GAD and the consequences of the asthma attack and cardiorespiratory arrest. In accordance with the Comcare Guide to the Assessments of the Degree of the Permanent Impairment (Edition 2.1) (the Comcare Guide) he estimated     Ms Atkins whole person impairment (WPI) rating at 30%.

35. In his second short report of 14 June 2017, Professor Joubert confirmed his diagnosis and the relationship between the GAD and the development of asthma and stated he had reached this opinion based on his general knowledge and his expertise as a general physician and neurologist.

36. He maintained his diagnosis and conclusion when informed that there was no lengthy history of asthma and steroid medication but did consider Ms Atkins’ long-term smoking habit may have been a contributory factor.

37. Professor Joubert informed the Tribunal that based on a report of a Dr Bauer, 30 per cent of patients who develop Lance Adams syndrome also suffer from epilepsy and 20 per cent had dysarthria.

38. He was acquainted with the fact that Ms Atkins was recorded as having a tremor of the upper limbs in 2001. This he said was most likely an essential tremor, essential in medical terminology meaning cause unknown.

39. Professor Joubert had been provided with the EEG reports of 3 and 10 March 2015 but was not aware of the earlier report. He regarded the earliest EEG to be normal, that of      3 March 2015 revealed very severe changes, and that by 10 March 2015 there was considerable improvement.

40. Professor Joubert provided four articles written between 2011 and 2014 relating to the condition of Lance Adams syndrome and hypoxic encephalopathies and in particular the EEG patterns. All four articles described Lance Adams syndrome as being extremely rare, as only about 150 cases had been reported in the medical literature.

    Associate Professor Ernest Butler neurologist

41. Associate Professor Butler has been treating Ms Atkins for her myoclonus and epilepsy since her discharge from rehabilitation in May 2015. She was first seen in the Neurology Outpatient Clinic at Frankston Hospital on 21 April 2015 while still in rehabilitation and has attended thereafter. Initially her appointments were at three-monthly intervals then six monthly and from January 2017 they have been listed to be annual.

42. Each attendance at the Outpatient Clinic generated a letter to the treating general practitioner, Dr Dunn. Associate Professor Butler had seen her on every occasion in conjunction with the Registrar on service in the Clinic and has assessed Ms Atkins and changed her medication as required.

43. In his evidence Associate Professor Butler said he believed he had made the diagnosis of Lance Adams syndrome after her discharge from hospital. He did not believe he had seen Ms Atkins during her hospitalisation in ICU.

44. Associate Professor Butler addressed the findings in Intensive Care, in particular the results of the MRIs of the brain and the three EEGs that were performed. In terms of the MRIs he said these had been normal with no evidence of cerebral oedema which may, on occasion, follow hypoxic brain injury, nor any evidence of possible epileptic foci.

45. The original EEG of 27 February 2015 had been quite normal but that of 3 March 2015, he said was extremely abnormal and looked incompatible with life. However, by                    10 March 2015 the EEG had improved considerably although there were still epileptic discharge foci. The status epilepticus myoclonus had resolved.

46. Associate Professor Butler summarised Ms Atkins current neurological status as having normal muscle power, loss of balance due to cerebellar damage and myoclonus involving both upper and lower limbs. He explained that the jerking myoclonic movements were always initiated by movement and were generated in the brain as opposed to the spinal cord or peripheral nerves.

47. Associate Professor Butler was asked to comment on reports that Ms Atkins had had a tremor as long ago as 2001. This he considered to most probably be related to anxiety or was a benign essential tremor, in other words of unknown aetiology.

1. In relation to the actions taken by management and the evidence of both Ms Atkins’ co‑workers and that of the management team of Mr Bull, Mr Ryan and Ms Nguyen, it was contended that the allegations raised by Ms Damen at the meeting of 16 January 2015, were not credible, had been denied by Mr Bull and were totally out of keeping with his senior role in the public service.

2. It was submitted that the Tribunal should affirm the respondent’s decision to approve 12 further attendances for psychology treatment from 9 November 2015. (Application 2016/1100).

3. In relation to the weight to be placed on the various medical articles provided by the respiratory physicians, Mr Lenczner contended that those provided by Dr Burdon had in the main, come from journals of psychology; whereas Dr Trembath’s provided articles had been derived from studies by respiratory physicians. It was acknowledged by Mr Lenczner that Dr Burdon had stated that the literature was ambivalent. However, he contended that it was more than ambivalent; it was non-existent. In relation to the respiratory physicians’ evidence, Mr Lenczner dissected all the comments they made including those made about the articles and their authors.

4. In summary, Mr Lenczner contended that the Tribunal would be required to look at these articles in support of his contention. Mr Lenczner cited the decision of the New South Wales Court of Appeal in Seltsam Pty Ltd v McGuinness and Another (2000) 49 NSWLR 262 wherein Spigelman CJ said:

   ... The strength of the association between asbestos exposure and renal cell carcinoma, and other aspects of the quality of the ... research, particularly inconsistencies amongst the various studies, were relevant considerations which his Honour was obliged to take into account. They were relevant, as a fact on which, in part, to base an inference as to the causal relationship ...

5. In further support of his contentions Mr Lenczner referred to the decisions in Telstra Corporation Ltd v Mahon (2004) 39 AAR 484,  White and Military Rehabilitation and Compensation Commission [2017] AATA 1555 and Comcare v Martin (2016) 258 CLR 467 . In Re White the Tribunal had stated that:

   As Dixon J warned in Forst (at p. 570) there must be “adequate” grounds for believing that the events are “naturally associated”.

   and as said by Dixon J;

   “Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated.”

   In Telstra Corporation Ltd v Mahon (2004) 39 AAR 484 Bennett J had relied on the decision of Adelaide Stevedoring Company that said: ... where medical science cannot supply an answer, a Court could adopt a view on causation ... only applied where the presumption would only be displaced if medicine did provide an answer.

6. Mr Lenczner contended that the evidence before the Tribunal did not displace the possibility that Ms Atkins had suffered from a respiratory tract infection on 25 February 2015 and that this had been causally related to her asthma attack. This, he contended, was supported by the family’s description that she was pale, looked unwell and felt tired. Further support for this contention was contained in the discharge summary from intensive care, which referred to her being unwell throughout the day. This Mr Lenczner equated to prima facie evidence of there being an infection and, despite the results of x-rays and sputum cultures, that this evidence could not be discounted by reference to other evidence (page 595 of Transcript of 28 February 2018). The contention was further supported by Dr Trembath’s evidence that the white cell count in Ms Atkins’ blood was elevated for a period of seven days following her admission and this was compatible with a bacterial infection in the lungs.

7. Mr Lenczner identified other possible contributory factors such as the possibility that Ms Atkins had helped Ms Whitehead load rubbish into a skip and was thereby exposed to dust, had been smoking while watching television throughout the afternoon, and had been present in a house where there were two dogs and three cats raising the possibility of exposure to potential animal hair allergens.

8. In conclusion, Mr Lenczner submitted that if the events of 25 February 2015 had been caused by an aggravation of the then accepted psychiatric disorder, resulting from the events of 9 September 2014, this attracted s 5B(1)(b) of the SRC Act which applies to the aggravation of an ailment, an ailment being a disease. The decision in Comcare and Martin (2016) 258 CLR 467 was cited as an authority for this contention. It was further argued that this meant that the aggravation had not occurred in the course of employment but it was conceded that it could be contributed to by employment. Some of the authorities on arising out of employment, were mentioned in brief and it was agreed that s 5B(2)(d) of the SRC Act would need to be taken into consideration, this being a reference to any activities of the employee not related to the employment.

9. Mr Lenczner provided his supplementary written submissions on 19 March 2018. He first addressed the applicant’s reliance on the decision of Re Wendy Anne Lloyd. Mr Lenczner referred to the applicant’s reliance on this decision as related in paragraph 63, 93 to 95 of their submissions. Mr Lenczner then addressed the decision Rodriguez in relation to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 which states:

   33 Procedure of Tribunal

   (1)In a proceeding before the Tribunal:

   .................

   (c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

10. In Rodriguez the Federal Court of Australia held that this did not mean that the rules of evidence are to be ignored and that the more flexible procedure of the Tribunal did not justify decisions made without a basis in evidence having probative force.

11. Mr Lenczner submitted that reliance on the findings of fact made by the Tribunal in          Re Wendy Anne Lloyd would constitute a denial of justice to a party adversely affected. As a corollary to that argument, he contended that the Tribunal could not take into account in the present application such medical evidence or medical opinion the respondent had not had the opportunity to examine by virtue of cross-examination of the experts.

12. It was also contended that in Re Wendy Anne Lloyd the Tribunal had not referred to any relevant scientific studies and the situation was entirely different. The term stress had been used in general but no actual diagnosis of an anxiety condition was identified by name, that the emphasis on a temporal relationship in Re Wendy Anne Lloyd had been made in relationship to a traumatic event and that Re Wendy Anne Lloyd did not address the lack of identification of pathology supporting any relationship between stress and an asthma attack.

13. The applicant’s reliance on the decision in Titchener was also addressed at length and paraphrased as concluding that: “If an applicant has been awarded compensation for incapacity ... he may subsequently suffer from another incapacitating condition which subsumes the original incapacity does not result in his losing his compensation for the initial incapacity”.

14. Mr Lenczner addressed the facts of Titchener and contended that as Ms Atkins was able to return to employment and/or was likely to return to employment absent the asthma attack and cardiac arrest, no relevant incapacity would arise in respect to the previous psychiatric condition.

15. Mr Lenczner addressed Dr Burdon’s evidence in detail; but, his address related primarily to conflicting evidence, what was described as minimisation of the importance of scientific literature, providing opinion as to causation independently of this literature and the inaccuracy of the history he had obtained from the applicant. Mr Lenczner referred to the evidence relating to the alleged conversation between Ms Atkins and her brother and whether this could play a part in aggravating the underlying condition of asthma, as opposed to subjective worsening of the feeling of asthma.

16. Mr Lenczner itemised a summary of retractions and qualifications in the opinions of         Dr Burdon and most of this addressed conflicting evidence. For example where Dr Burdon had said: Most cases of acute severe asthma ... had (...) a build-up over a few days and that “acute severe asthma does occur out of the blue without clear precipitating factors” and “we don’t know enough about what happens in those sorts of situations physiologically”. Dr Burdon was reported as making comments such as “I’m speculating there” and “psychological disorders are on the bottom of the list”. It was contended these statements had been made without explanation of what they meant and in what circumstances.

17. Mr Lenczner contended that Dr Burdon’s comment as to possible stress related causes of asthma were mainly in the context of articles from non-respiratory fields and of uncertain relevance.

18. Mr Lenczner also contended that Dr Burdon’s use of words was conflicting, an example given being that he had expressed the opinion that something was “very unlikely” and then described similar evidence as “it’s not improbable” the contention being that these two phrases were inconsistent. Contentions were made regarding Dr Burdon’s reliance on the history provided by Ms Atkins’ brother Ross as to the chronology of events leading up to the cardiac arrest and the cardiac arrest itself. These had not, in terms of the timing and duration of the cardiac arrest, been substantiated by the ambulance officers’ reports. The Applicant’s reliance on Dr Burdon’s evidence had been selective.

19. Mr Lenczner was further submitted that Dr Burdon’s reliance on the reports of Ms Latif, the psychologist, in relation to panic attacks and the influence of such attacks on asthma were questionable on the basis that Ms Latif’s reports stated the events of   25 February 2015, and other psychiatric histories did not support this correlation.

20. In relation to Dr Burdon’s consideration of other trigger factors evoking the asthma attack of 25 February 2015, Dr Burdon had considered any past history of asthma as being irrelevant to his opinion. Mr Lenczner contended that Dr Burdon had not attempted to reconcile the concessions he had previously made and therefore this opinion should not be accepted by the Tribunal, as being of any evidentiary value. As the opinions of              Dr Dunn and Professor Joubert relating to a causal relationship had been based in part on the opinion of Dr Burdon, Mr Lenczner further contended that their opinions supporting a causal relationship should be rejected. He described Dr Burdon’s evidence as speculative.

21. Mr Lenczner addressed the speculative nature of Dr Burdon’s evidence at length. It was contended that Dr Burdon had relied on scientific articles that did not come from the respiratory field and was unable to provide any evidence based on his own personal research or clinical experience. Dr Burdon had used the words stress could be strongly associated with asthma incidents and hospitalisation and the word could implied a degree of speculation.

22. On the question of the existence of an infection and its relevance to an asthma attack,           Mr Lenczner submitted that any such evidence would contribute to evaluating whether there was a causal contribution and/or if such contribution was of a significant degree. These arguments also applied to other risk factors, such as COPD.

23. Mr Lenczner stressed that Dr Burdon had used the term flu as distinct to upper respiratory tract and viral infection. (Tribunal Notes: this ignores the fact that the flu is a viral infection). It was contended that Dr Trembath’s evidence-in-chief was that the pathology results were consistent with infection on the day and he had repeated this opinion when cross-examined and supported the respondent’s argument that Ms Atkins had suffered an infection on 25 February 2015. 

24. Mr Lenczner also addressed the information provided by the Tribunal at the directions hearing of 13 March 2018, in relation to the haematology reports of a high white cell count and the various possible explanations for such an elevated count. He contended that the interpretation of blood test results by the Tribunal should not override the medical evidence of the medical specialists and particularly not the opinion evidence in the medical records of Peninsula Hospital, or that of Dr Burdon and Dr Trembath who had not excluded a respiratory infection.

25. It was contended that the hospital records, confirmed existence of an infection on 25 February 2015 and the progress note of 28 February 2015 was referred to in the ICU discharge summary and this evidence should be accepted as being the correct opinion of the medical practitioners who made the diagnosis. Thus the Tribunal should accept the diagnosis of an infection on admission. This was so because the clinicians present on the day were in a position to observe the applicant, and Doctors Burdon and Trembath and the Tribunal were not.

26. Mr Lenczner further submitted that there were contradictions between the ambulance and clinical records of Peninsula Hospital on the one hand and the history provided by Mr Atkins. Mr Atkins had assessed the duration of the applicant’s loss of spontaneous circulation as 15 minutes whereas the ambulance notes stated it was four minutes. Further inconsistencies appeared in the history obtained by Dr Sleigh, the occupational health physician, and Mr Atkins’ evidence in relations to the conversation between           Mr Atkins and his sister on 25 February 2015. This recounting of the conversation had been provided by Ms Whitehead. As this information could only come from Mr Atkins,            Ms Whitehead not having been a witness to the conversation; it was submitted that there had been an unconscious element of reconstruction arising from conversations between Mr Atkins and Ms Whitehead after the event.

27. Mr Lenczner further contended that the evidence regarding the events of the day provided by Mr Atkins, Ms Whitehead and Scott Atkins was not consistent with the ambulance notes. The ambulance notes had not made any mention of an anxiety provoking conversation nor any shortness of breath. Similar submissions were made relating to the absence in the evidence of Mr Atkins, Ms Whitehead and Scott Atkins of any pre-existing myoclonic hand movement problems, as reported by Dr Plitas in the Peninsula Health Service notes this reflected on the accuracy of Ms Atkins evidence before the Tribunal.

28. Mr Lenczner’s final submission was that if the applicant did suffer from myoclonic hand movements many years earlier, there was no evidence to suggest that that predisposition played any relevant part in her condition following the asthma attack and cardiac arrest.

    TRIBUNAL’S DELIBERATIONS AND DECISION

    Introductory Comments

29. The three applications for review that are before the Tribunal were heard over some 10 days with two other directions hearings over a four-month period. The documentation provided was voluminous, particularly that relating to application 2016/1100. Liability had been denied for the contested conditions of an asthmatic attack provoked or precipitated by a conversation referring to an aspect of Ms Atkins accepted psychological condition of GAD, leading to  cardiorespiratory arrest, hypoxic brain injury, epilepsy and Lance Adams syndrome. The latter is characterised by involuntary, uncontrollable, cerebrally initiated myoclonic (jerking) movements of the limbs, initiated by limb movement.

30. Given the complexity of the medical history and opinions, the Tribunal has provided more assistance than is the norm, in advising the parties how to navigate and interpret the medical data. The Tribunal’s expertise in this area arises from her qualifications, training and experience. This is in accord with the Kerr Committee Report of 1971 wherein at Chapter 16, paragraph 321 the committee recommended:

    that members should be chosen for the expertise in a particular field.

31. The Tribunal has had more than 40 years involvement in constructing and analysing hospital records, has been involved in daily visits to ICUs in several public and private hospitals over a long period of time and has particular knowledge in cardiac and respiratory physiology, diseases and their treatment. These qualifications and this knowledge is in addition to her qualification in law.

32. The Tribunal appreciates the lack of medical, including physiological, biochemical and bacteriological knowledge of the majority of legal practitioners.

The Substantive Issues

Application 2016/1099

1. The reviewable decision of 4 February 2016 ceased liability for incapacity payments to  Ms Atkins after 3 March 2015. The decision was made on the basis that the reviewing officer was satisfied that any incapacity after that date was due to the contested conditions and not the applicant’s accepted psychological condition.

2. The diagnosis of generalised anxiety disorder (GAD) as accepted by Comcare was based at that stage on the reports of Dr Dunn, the treating general practitioner, that of                Mr Perham of Optum Health and Technology and that of Mr Jones of Carfi. Ms Atkins was not seen by a clinical psychologist until after her transfer to the rehabilitation centre on           18 March 2015 and no psychiatric opinions were obtained by either party until after September 2016.

3. Ms Atkins’ evidence was restricted by her total retrograde amnesia from   30 December 2014 to 18 March 2015. However, her recall of events from   9 September 2014 to approximately Christmas 2014 was good.

4. The evidence provided by Ms Atkins’ co-workers and team leaders verify that she was subject to a verbal and threatened physical attack by a co-worker on 9 September 2014. It is claimed that the GAD was perpetuated by the fear of further attack and Ms Atkins sense of being unjustly treated thereafter. The latter belief was founded on what she considered to be the failure of management to penalise the perpetrator and their expectation that     Ms Atkins accept changes to her work, both in its nature and location within DHS, Dandenong office when to her mind she was the victim, not the perpetrator.

5. Ms Atkins’ anticipatory fear and the accompanying physical signs in the form of shaking were documented by Ms Damen, Ms Watson and Ms Mitchell. These signs of anxiety were not observed by the team leaders Mr Bull, Mr Ryan and Ms Nguyen. There were three different team leaders during the 11 week period, between 9 September 2014 and Ms Atkins’ cessation of work on 25 November 2014. The team leaders were aware of the diagnosis and Mr Ryan had instigated referral of Ms Atkins to the EAP, then Optum and after that Carfi, all of whom communicated regularly with management.

6. Ms Atkins’ standard and volume of work remained very high according to the team leaders. Ms Atkins agreed that her work remained at a high standard overall but deteriorated on the days when DNRB was present at work. The attendance records indicate that they were both at work on approximately 10 days during this 11 week period.

7. Ms Atkins was first seen by Mr Perham on referral from EAP on 10 October 2014. He made a diagnosis or a record of severe PTSD reaction. Ms Atkins attended Mr Perham on a total of five occasions and on each of these, her level of anxiety was recorded. On        19 December 2014 (T37, page 272) his session notes stated.

   My sense is Chris’s situation has not been treated sensitively and if handled better the emotional damage could have been more contained. Should this colleague not be shifted this will be a disaster for Chris.

   When seen on 22 January 2015 Mr Perham assessed Ms Atkins as being psychologically struggling. He reported she was essentially depressed and her motivation to do things had vanished and was house bound. She felt that she could go to work if the perpetrator was not there but there was no guarantee that this could be achieved and it was probable that she would not go back to work until such a shift took place.

1. Ms Atkins did not attend her general practitioner until 23 October 2014 having considered that the treatment she was receiving from Mr Perham who she believed to be a psychologist was all that was required. On 23 October 2014 she saw Dr Dunn. He diagnosed an anxiety disorder and commenced her on Serepax and continued to prescribe anxiolytic medication until 3 February 2015.

2. In his entry of 6 January 2015, Dr Dunn recorded that there were still work issues and recommended that she remain off work until the end of February, when the protagonist was to leave the team. Dr Dunn provided a certificate of capacity declaring Ms Atkins unfit for all work on each occasion that he saw from October until 25 November 2014. All of these certificates cover a period from the date she was seen until the planned next appointment. This appears to be his normal habit. The summonsed records from his previous practices dating back to 2000 show that for other illnesses or injuries suffered by Ms Atkins he had provided similarly spaced certificates, sometimes for two days depending on the planned review date.

3. While Ms Atkins had no recall of the meeting of 16 January 2015, it was documented in the rehabilitation case notes (Exhibit A9), in the notes taken by Ms Damen who was present at this meeting, and further in notes made by Mr Bull, who also was an attendee. Ms Damen recorded that Ms Atkins was most upset by the topic discussed and the approach of management at the meeting.

4. The same document (Exhibit A9) records a telephone conversation held between the Case Manager for Ms Atkins, Edel Sacco and Ms Atkins on 25 February 2015. Ms Sacco had diarised some of the conversation, noting that Ms Atkins was distressed on the phone and very nervous with talking with me initially. She is not feeling supported at the moment by management or the workplace.

5. On 13 January 2015 Dr Dunn had in response to a request from Mr Oliver Jones sent an email making one recommendation and one only. He then outlined the events to his knowledge, made several comments about the way in which Ms Atkins had been treated and concluded: I understand the Christine is a valued employee, and if so, treat her as such, and get rid of DNRB. (Exhibit A10)

6. In his evidence before the Tribunal, Dr Dunn had confirmed his treatment of Ms Atkins and also reiterated the content of this email to Carfi.  He described what would be his normal procedure in relation to a return to work program and that he had been hopeful that Ms Atkins would be able to proceed on such a program in late February 2015 but this had been entirely dependent on the removal of DNRB from the workplace.

7. Despite the major intervening events of 25 February 2015 and Ms Atkins subsequent period of respiratory ventilation, paralysation by relaxants and heavy sedation when she did recover consciousness and enter rehabilitation, her recall of the events of   9 September 2014 and her subsequent acute anxiety state remained uppermost in her mind. This, in the opinions of the rehabilitation physician Dr Leach and the neuropsychologist Dr Plitas, continued to contribute to her psychological status as of              14 April 2015. Dr Leach provided several reports progressively. There was some inaccuracy as to when Ms Atkins came under her care, Dr Leach stating it was                   18 May 2015 when it was in fact 18 March 2015. It was her opinion that the workplace incident remained a continuing major cause of Ms Atkins anxiety.

8. While it is regrettable that Ms Atkins was not assessed by a psychiatrist earlier than 18 months after the event of 25 February 2015, the three psychiatrists who have reported have made similar diagnosis of an adjustment disorder with anxiety relating developing after the workplace events of September 2014 and a second co-existing MDD, due to the contested claim arising from the events of 25 February 2015.

9. Dr Chambers was the first to see Ms Atkins and made a diagnosis of an adjustment disorder with anxiety, rather than a generalised anxiety disorder arising from the incident of 9 September 2014 and stated: She has low grade residual features of an adjustment disorder with anxiety in relation to the workplace incident, although her predominant features were of a major depressive condition.

10. Dr Sheehan in April 2017 assessed Ms Atkins as having a WPI rating on psychiatric grounds alone of 25 per cent; of which 50 per cent was due to the compensable condition, i.e. the work related injury of 9 September 2014 and 50 per cent to her non-compensable medical conditions.

11. Dr Weissman had in November 2016 opined that Ms Atkins had at least a moderate mixed depressive and anxiety syndrome associated with traumatisation features and prior to February 2015 had suffered from a chronic adjustment disorder with depressed and anxious mood and traumatisation features of moderate intensity. Dr Weissman concluded that Ms Atkins had a permanent impairment from her psychiatric conditions of 25 per cent WPI; 50 per cent of which was attributable to the events of September 2014 and 50 per cent to the events of 25 February 2015.

12. None of the psychiatrists considered the neurocognitive defect from the events of            25 February 2015 in arriving at their assessments, these being made purely on the psychiatric history and diagnoses.

13. While the clinical psychologist Ms Latif, who first saw Ms Atkins in May 2015 has not provided any comment as to whole persons impairment ratings or attributed percentage wise the effects of the two incidents, she has in her three reports (provided in the T‑documents) expressed the opinion that the anxiety reaction or disorder arising from the events of September 2014 continue to play a role in Ms Atkins overall psychiatric status. This is also the opinion of the treating general practitioner Dr Dunn.

14. Based purely on the relevant medical opinions provided, and Ms Atkins’ evidence, and given that the diagnosis of GAD or in the alternative an adjustment disorder with anxiety is not in dispute and has been accepted as arising from Ms Atkin’s employment with DHS, the Tribunal determines that this work-related condition continues to impact on Ms Atkins’ incapacity for work. The Tribunal sets aside the decision of the respondent and substitutes its decision that the work related psychiatric disorder of GAD or an adjustment disorder with anxious mood persists, and pursuant to ss 14, 16 and 19 of the SRC Act attracts ongoing compensation.

15. With respect to Application 2017/7593 it follows from the above decision of the Tribunal, that the 50:50 percentage attribution to the psychiatric WPI rating of either 25 or 30 per cent as advised by the psychiatrists, that the decision relating to permanent impairment due to the psychiatric condition is remitted to Comcare for reconsideration in accordance with these attributed percentage figures with which the Tribunal accepts as accurate.

    Reviewable decision 2016/1100

16. This decision relates to three determinations: these being the denial of liability for the contested conditions of aggravation of asthma, cardiorespiratory arrest and Lance Adams syndrome; the agreement to pay for 12 psychology sessions at one per month from 9 November 2015 to 9 November 2016; and the denial of liability for both medication and household aids.

17. The Tribunal considers that the decision relating to the provision of psychology sessions is no longer appropriate or valid in light of the decision regarding the continuing liability for the work-related psychiatric condition. Any determination or advice as to the requirements of psychology sessions should be at the discretion of a treating psychiatrist or psychologist.

18. The decision relating to liability for the payment of household aid and medication is dependent on the Tribunal’s decision in relation to the so-called contested medical conditions.

    The contested medical conditions

19. There is a vast amount of medical evidence, expert reports, analysis and medical journal articles relating to asthma and anxiety. In several instances the opinions provided are conflicting or affected by incomplete data or medical history. The majority of the expert reports and opinions have been obtained years after the event. The contemporary medical expert evidence is limited to entries in the ICU record by the treating Neurology and Respiratory Medicine Units. The Tribunal notes that Ms Atkins was admitted to Frankston Hospital under the bed card of Dr David Langton, Head of the Respiratory Medicine Unit and was seen on several occasions by Dr Nicholas Manolitsas, both of whom are senior respiratory physicians known professionally to the Tribunal. Their opinions were not sought by either party.

20. Examples of conflicting evidence, as documented in the submissions of both the applicant and the respondent, have impacted on the expert medical opinions. The Tribunal will not further analyse this aspect of the evidence but a major example is that arising in              Dr Burdon’s report, wherein he recorded Ms Atkins past history as being one of poorly controlled, steroid dependent, unstable and severe asthma of many years duration. This was corrected in the course of his evidence before the Tribunal, as was the impact this history had on his opinion.

21. The Tribunal accepts that Ms Atkins has asthma and that prior to 25 February 2015 had two documented episodes, one requiring hospital admission in 1989 according to             Dr Trembath, and the other a dust exposure-induced attack that led to 4 hours observation in an Emergency Department in 2006. Ventolin had been prescribed by Dr Dunn in 2007 but not since. It is concluded that the asthma attacks were infrequent. None were experienced during the period of work-place induced anxiety between   9 September 2014 and 25 November 2014, the latter being the date Ms Atkins was certified unfit for work.

22. The Tribunal has not been assisted by the medical literature articles provided and agrees with Dr Burdon’s comment that medical opinion regarding a causal relationship between anxiety or stress and asthma is ambivalent. The Tribunal considers the articles provided to be Level 5 of 7 in the scale of value, 7 being the lowest and 1 the highest in the rating pyramid devised by the World Health Organisation and modified by other sources such as The Royal Australasian College of Surgeons. (Level 1 is Review and Meta-analysis of Randomized Controlled Trials and Level 7 is Expert Opinion, Exhibit R13).

23. Having read all the medical evidence, the Tribunal is not convinced that Ms Atkins’ accepted anxiety disorder, which arose out of her employment with DHS, contributed to a significant degree by aggravating her unrelated long-standing bronchial asthma and led to cardiopulmonary arrest, cerebral hypoxia and myoclonic epilepsy (Lance Adams syndrome).

24. The conclusion reached is based on several considerations:

    (a)The link between the anxiety disorder and the near-fatal asthma attack is said to be Mr Ross Atkins’ query as to when she was returning to work and possibly an enquiry as to the progress of her compensation claim. Mr Atkins had interpreted his sister’s reaction to the question as being one, based or her facial expressions, of extreme distress. In evidence before the Tribunal, he agreed that there were other possible explanations for this reaction and that it might be unrelated to his question particularly as he had described her as appearing unwell on the day. Despite there being two others in the room the conversation was not corroborated. The Tribunal considers this causal link to be tenuous.

    (b)Other risk factors in the precipitation of asthma attacks have been identified by the experts and the medical literature. Those relevant in this matter are:

    (i)The presence of a lung infection. While the Tribunal is satisfied there was no bacterial infection or pneumonia, a viral upper respiratory tract has not been excluded. Both Dr Trembath and Dr Burdon considered this a possibility.

    (ii)A contribution by cigarette smoke. Ms Atkins, Mr Ross Atkins and Ms Whitehead were all smoking in what was described as a small lounge‑room before the asthma attack. The expert witnesses opined that cigarette-caused COPD by reducing lung function volumes and diffusion of oxygen and carbon dioxide increased the physiological effect of asthma even if it did not precipitate an attack.

    (iii)There existed a possibility of an atopic reaction to the dander of the family dogs and cats.

    (iv)Exposure to dust from Ms Whitehead’s activities clearing rubbish from under the house and placing it in a skip. It is accepted that Ms Atkins did not move any rubbish although she had been prepared to do so.

    (v)Dr Trembath’s report refers to that of Associate Professor Jelinek dated           24 July 2016. He said he had relied heavily on the medical history given by Ms Atkins to Associate Professor Jelinek. Associate Professor Jelinek’s report was filed with the Tribunal but was not tendered into evidence despite Dr Trembath reliance on it. Associate Professor Jelinek had diagnosed mitral incompetence in Ms Atkins and noted her brother had the same condition due to posterior mitral valve leaflet prolapse. In lay terms this is a leaking heart valve. Depending on severity, it may give rise to pulmonary oedema and shortness of breath and if prolonged to pulmonary hypertension. Also filed was the result of an echocardiogram requested by Dr Dunn and performed on Ms Atkins on 11 January 2017. This revealed severe mitral incompetence and mild pulmonary hypertension. This is a further relevant factor although not argued before the Tribunal.

25. The Tribunal affirms the decision denying liability for the contested conditions; and as a consequence the decision denying liability for household aids as listed and the listed medications.

I certify that the preceding 348 (three hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

[sgd]……………………………………………...
Associate

Dated: 13 April 2018

Date(s) of hearing:	13 14 15 November 2017, 22 23 24 25 30 January 2018 and 16 28 February 2018
Counsel for the Applicant:	Ms Cassie Serpell
Solicitors for the Applicant:	Ryan Carlisle Thomas Lawyers
Counsel for the Respondent:	Mr Joe Lenczner
Solicitors for the Respondent:	Australian Government Solicitor

APPENDIX

APPLICANT

A1Statement of Ms Christine Atkins dated 18 January 2017

A2Statement of Miss Antoinette Watson dated 30 January 2017

A3Diagram of Team 2 Pod as of September 2014 as drawn by Miss Antoinette Watson

A4Statement of Amanda Mitchell dated 23 January 2017

A5Statement of Tammy Damen dated 24 January 2017

A6Statement of Julie Whitehead dated 6 June 2016

A7Statement of Ross Atkins dated 19 May 2017

A8Statement of Scott Atkins dated 23 November 2017

A9Rehabilitation Case Notes bundle

A10Carfi Case Notes bundle

A11Letter from Dr Brian Dunn dated 22 June 2016

A12Report of Dr Sheehan dated 11 May 2017

A13Report of Dr Sheehan dated July 2017

A14Medical report of Professor Burden dated 5 September 2016

A15Supplementary Report of Professor Burden dated 14 October 2016

A16Short report of Professor Burden dated 22 December 2017

A17Report of Doctor Joubert dated 24 May 2017

A18Supplementary report of Doctor Joubert dated 14 June 2017

A19Bundle of Professor Butler dated 21 April 2015 - 21 May 2017

written by various current neurology registrars

A20Report of Dr Weissman dated 22 November 2016

A21Asthma Handbook

RESPONDENT

R1T-Docs and Supplementary T-docs

R2Report of Dr Van Vugt dated 26 May 2017

R3Advanced Care Directive constructed by Peninsula Health and signed by Applicant on 27 April 2015

R4Letter dated 14 October 2015 to AIA Australia Limited

R5Report of Dr Scott Chambers of 28 September 2016

R6Statement of Mr Jarrod Bull dated 12 January 2018

R7Statement of Mr Robert Ryan dated 9 January 2018

R8Statement of Gillian Nguyen dated 10 January 2018

R9DSM-5 description of the diagnostic criteria for adjustment

R10DSM-5 description of the diagnostic criteria for major depressive disorder

R11Entire Record of Peninsula Health

R12Report of Dr Trembath dated 25 August 2016

R13Pyramid relating to research articles

R14Victoria Ambulance report