Austin and Commonwealth Bank of Australia (Compensation)

[2018] AATA 4170

Austin and Commonwealth Bank of Australia (Compensation) [2018] AATA 4170 (6 November 2018)

Division:GENERAL DIVISION

File Number(s):      2016/3734

2017/1396

Re:Virginia Austin

APPLICANT

AndCommonwealth Bank of Australia

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance 

Date:6 November 2018

Place:Sydney

Application 2016/3734

1. The reviewable decision made by the Commonwealth Bank of Australia on 14 July 2016 as to its liability to pay compensation to Ms Austin in accordance with sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is set aside.

2.    In substitution, it is decided that at all times since 8 June 2016 and at the date of this decision the Commonwealth Bank of Australia is liable to compensate Ms Austin for expenses incurred in respect of, and loss of income arising from, the compensable injury suffered by her on 21 July 2009.

3.    Within 14 days of the date of this decision, each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, the Respondent shall pay the costs of the proceedings incurred by the Applicant.

Application 2017/1396

1.    The reviewable decision made by the Commonwealth Bank of Australia on 7 March 2017 denying liability to compensate Ms Austin for permanent impairment arising from the compensable injury is set aside.

2.    In substitution, it is decided that the Commonwealth Bank of Australia is liable to compensate Ms Austin in respect of 20 per centum permanent impairment arising from the compensable injury suffered by her on 21 July 2009.

3.    Within 14 days of the date of this decision, each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, the Respondent shall pay the costs of the proceedings incurred by the Applicant.

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

J W Constance
Deputy President

CATCHWORDS

COMPENSATION – liability to compensate for permanent impairment arising from the compensable injury – liability to compensate for expenses incurred in respect of, and loss of income arising from, the compensable injury – whether injury resulted in suffering an impairment which is permanent – degree of impairment – decision set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

SECONDARY MATERIAL

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed, 2013)

REASONS FOR DECISION

J W Constance

Deputy President

Introduction

[1]

Background

[9]

Legislation  

[15]

The Issues

[19]

Evidence and findings of fact

[23]

Consideration of the issues

[50]

Conclusion

[74]

A.    INTRODUCTION

1. Ms Austin commenced employment by the Commonwealth Bank of Australia in 2007. Her role was to project manage and execute a series of pre-planned relocations of staff and premises. She continued in this role until her position was made redundant in February 2010. She has not been employed since.

2. In April 2015 the Bank accepted liability to compensate Ms Austin for a psychological injury she suffered on 21 July 2009 arising from her employment by the Bank. This liability arose under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

   Application 2016/3734

3. On 14 July 2016 the Bank decided to affirm its earlier decision that from 8 June 2016 it was no longer liable to compensate Ms Austin for treatment expenses and loss of income arising from the injury as, from that time, she no longer suffered the effects of the injury.

4. Ms Austin has applied to the Tribunal to review this decision (“the first reviewable decision”).

5. For the reasons which follow, the first reviewable decision will be set aside. In substitution, it will be decided that since 8 June 2016 and as at the date of the Tribunal’s decision in this application, the Bank is liable to compensate Ms Austin for expenses incurred in respect of, and loss of income arising from, the injury.

   Application 2017/1396

6. On 7 March 2017 the Bank decided that it was not liable to compensate Ms Austin for the permanent impairment and non-economic loss she claims to have suffered as a result of the injury (“the second reviewable decision”).

7. Ms Austin has applied to review the second reviewable decision.

8. For the reasons which follow, the second reviewable decision will be set aside. In substitution, it will be decided that the injury suffered by Ms Austin has resulted in permanent impairment and the Bank is liable to pay her compensation in accordance with sections 26 and 27 of the Safety, Rehabilitation and Compensation Act (Cth).

   B.   BACKGROUND

9. Unless stated otherwise, findings of fact have been made on the basis of the evidence of Ms Austin. She provided statements dated 9 April 2014[1] and 12 February 2016[2] and gave evidence at the hearing. I am satisfied that Ms Austin was an honest witness who gave her evidence to the best of her recollection.

   [1] Exhibit A1.

   [2] Exhibit A2.

10. Ms Austin is 62 years old. She holds the degree of Bachelor of Arts in Interior Design and has worked in the field of interior design for many years, which has included working in Germany between 1992 and 1999.

11. Ms Austin returned to Australia in 1999. She commenced working for a financial services company in corporate facilities management and attained the position of Facilities Manager. In a two-and-a-half-year period the organisation grew from 70 staff to 700 staff. Ms Austin managed new leases and new premises and the associated movement of people into new locations.[3] She continued in this position until 2003.

    [3] Transcript 12/02/18 at 7.

12. From 2003 until 2005 Ms Austin operated her own interior design consultancy business. From 2005 she was employed as a General Manager of a design business supervising about six graduate designers.

13. On 12 November 2007 Ms Austin commenced working for the Bank, initially on a three-month contract. She was then appointed to the position of Accommodation Manager of the wealth division of the Bank.

14. Ms Austin has not worked since her position was made redundant in 2010, nor has she been offered employment by the Bank.

    C.   LEGISLATION

15. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

    (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

16. Subsection 16(1) provides:

    (1)  Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

17. Subsection 19(2) provides in part:

    (2)  Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula … [set out in the subsection].

18. Subsections 24(1), 24(2) AND 24(6) of the Act provide:

    (1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

    (2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

    (a)  the duration of the impairment;

    (b)  the likelihood of improvement in the employee's condition;

    (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

    (d)  any other relevant matters.

    …

    (6)  The degree of permanent impairment shall be expressed as a percentage.

    D.   THE ISSUES

19. Section 14 of the Act provides for a determination as to whether a relevant authority (in this case the Bank) is liable to pay compensation for a claimed injury. Section 16 sets out the circumstances in which compensation is payable for medical expenses obtained in relation to an accepted injury. This section requires the relevant authority to consider each expense claimed and to make a decision whether or not compensation is payable. Similarly, section 19 requires the relevant authority to decide upon the compensation payable for each claimed period of incapacity.

20. The Act does not require the Bank to revisit the original decision to accept liability to compensate Ms Austin (made under section 14) when deciding that compensation is no longer payable under sections 16 and 19.

21. The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it. I have to decide whether, since 8 June 2016, Ms Austin has continued to suffer the effects of a psychiatric condition to which her former employment by the Commonwealth Bank of Australia has continued to contribute to a significant degree.

22. In relation to the claim for compensation for permanent impairment, I have to decide:

    (a)whether the injury has resulted in Ms Austin suffering an impairment which is permanent; and

    (b)if she has, the degree of that impairment.

    E.    EVIDENCE AND FINDINGS OF FACT

    Evidence of Ms Austin

23. Ms Austin gave evidence that:

    ·she has not been employed since her position was made redundant in 2010;

    ·the Bank has not offered her employment since that time;

    ·she continues to suffer the following symptoms:

    oan ongoing labile mood state;

    oepisodic anxiety, including when driving a car;

    oa chronic general sense of demoralization;

    oepisodic feelings of depression accompanied by negative ruminations;

    oavoidant behaviour including reluctance to leave her home;

    olack of enjoyment of socializing;

    ovariable appetite;

    odifficulty with self-care and numerous activities of daily living;

    odifficulty with personal administrative tasks;

    odifficulty in undertaking regular exercise;

    opoor concentration and impaired attention;

    oepisodic odd feelings within her left frontal cranium, principally at times of stress.[4]

    [4] These symptoms were recorded by Dr Phillips in his report of 31 August 2016 (exhibit A9) and confirmed by Ms Austin as her current symptoms in her statement of 6 September 2017 (exhibit A2).

    Evidence of Dr Phillips, Consultant Psychiatrist

24. Dr Phillips first assessed Ms Austin in September 2010 at the request of her Solicitors. He assessed her further in November 2011, May 2013 and June 2016. He provided six reports and gave evidence at the hearing.

25. Following his initial assessment of Ms Austin in September 2010, Dr Phillips reported, in part:

    Ms Austin probably was a person of normal psychological fortitude prior to her employment by the Commonwealth Bank, other than having some obsessional personality traits which may have rendered her slightly more vulnerable to workplace stressors.

    …

    I have no clinical evidence which might suggest that the plaintiff developed any mental health symptoms until the time of her employment by the Commonwealth Bank.

    Ms Austin has given an unambiguous history of the development of psychological symptoms in the context of workplace stress whilst employed by the Commonwealth Bank.

    …

    There should be no doubt that Ms Austin has now developed a relatively deeply entrenched mental health problem, with principal symptoms within the depression spectrum but grafted on top of an already existing anxiety spectrum disorder.

    There are two current diagnostic possibilities. First, Ms Austin’s prior anxiety based syndrome has given way to a pervasive major depressive disorder. Second, Ms Austin has suffered an evolving mixture of anxiety spectrum and depression spectrum symptoms and the two are interlocked and best considered as a single entity.

    I prefer the latter view. In keeping with this, it can be stated firmly that Ms Austin has developed an adjustment disorder with mixed anxiety and depressed mood DSM IV TR 309.28 as a consequence of workplace stressors which overwhelmed her psychological coping mechanisms. The plaintiff has symptoms which are chronic and pervasive.

    …

    Ms Austin’s prognosis will remain uncertain.[5]

    [5] Exhibit A5 at [77]-[79], [86]-[88], [96].

26. Following an assessment of Ms Austin on 15 June 2016, on 31 August 2016 Dr Phillips reported:

    I have re-diagnosed the claimant as now suffering from a persistent depressive disorder, and validated the diagnosis.

    …

    I stand by my previous opinion that the claimant’s current psychiatric disorder is predominantly caused by the nature of her employment with CBA.

    ..

    I doubt that the claimant could return to the open workforce currently.

    …

    At this late stage in the cycle of illness, and noting that the claimant appears to have a treatment resistant disorder, her prognosis is poor.[6]

    [6] Exhibit A9 at 9-10.

27. When he gave evidence, Dr Phillips confirmed the views he expressed in the reports and that Ms Austin continues to suffer from “a persistent depressive disorder which, in simple terms, relates to a chronic, rather pervasive, difficult to treat depression-based syndrome often complicated by anxiety and trauma-induced symptoms additionally.”[7]

    [7] Transcript 12/02/18 at 73.

    Evidence of Dr Rowe, Clinical Psychologist and Consultant Neuropsychologist

28. Dr Rowe assessed Ms Austin on 16 February 2017, 2 March 2017, and 16 March 2017. He provided reports dated 11 April 2017[8] and 29 January 2018.[9] He also gave evidence at the hearing.

    [8] Exhibit A3.

    [9] Exhibit A4.

29. On 11 April 2017 Dr Rowe reported, in part:

    The first overt signs of Ms Austin’s mental illness appeared in early to mid-2009 with her access of counselling services and then presentation to St Vincent’s Hospital in June 2009 with symptoms of a heart attack. Thought to be an anxiety attack arising from stress.

    …

    Diagnostically Ms Austin can be considered as suffering from a Stress-Related Disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) published by the American Psychiatric Association (APA). In the context of workplace stressors this is often referred to as a Work-Related Stress Disorder (WRSD) or Adjustment Disorder. In addition, the development of depressive symptoms is a common secondary condition in the case of WRSD as appears to have occurred in the case of Ms Austin. On psychological testing she now appears to also suffer from a Major Depressive Disorder (MDD).

    As noted in Ms Austin’s test results she continues to suffer from chronic mild to moderate stress-related symptoms despite participating in extensive psychological treatment and taking antidepressant medication. She has been unable to return to work and has suffered a significant reduction in most areas of daily functioning including self-care, social and recreational activities, travel, social functioning, concentration and pace, and adaption.

    Given it has been over six years since Ms Austin went on full time stress leave and her active participation in treatment over the years it appears that her mental health condition has stabilised and become permanent such that further recovery seems unlikely.

    …

    In my opinion, the pattern of deficits and abnormalities which Ms Austin continues to manifest is consistent with the ongoing effects of a WRSD and MDD arising from her employment with the CBA from November 2007 to January 2010. Based on her symptom presentation and functional pre-injury history I do not believe there are any other conceivable factors which could account for her decline following a lengthy and successful period of initial employment with the CBA and other prior employers. [emphasis in original][10]

    [10] Exhibit A3 at 4-5.

30. Dr Rowe administered various tests to Ms Austin as well as taking a history from her. In his opinion the test results were consistent with the history she gave and with her clinical condition. He did not consider that she had any form of long-term anxiety condition prior to her employment by the Bank.[11]

    [11] Transcript 13/02/18 at 124.

    Evidence of Mr Haralambous, Clinical and Forensic Psychologist

31. Mr Haralambous assessed Ms Austin on 14 March 2016 and on 2 November 2017. He provided reports dated 31 March 2016[12] and 30 November 2017[13] and gave evidence at the hearing.

    [12] Exhibit R3.

    [13] Exhibit R4.

32. Mr Haralambous administered psychological tests to Ms Austin on each occasion. He perused and reported on the various reports and clinical notes made available to him.

33. In November 2017 Mr Haralambous reported, in part:

    it is my opinion from a psychological perspective that, on the balance of probabilities, Ms Austin is likely to have presented as she currently does irrespective of the circumstances of her employment with the CBA. The circumstances of her employment may have aggravated a pre-existing anxious and depressive condition that is documented in clinical notes and medical reports that precede Ms Austin’s employment with the CBA and which has variously been referred to as a Generalised Anxiety Disorder and Persistent Depressive Disorder (Dysthymia). However, Ms has long since been removed from the circumstances of employment with the CBA, and her condition appears to be following a course and trajectory that is unrelated to any related experiences from over 8 years ago.

    The diagnosis in the present case of a persistent work-related condition, such as an Adjustment Disorder, appears to depend largely upon Ms Austin’s self-report, despite evidence from external sources of information that is not consistent with the claim of psychological pathology that may be regarded as predominantly work related, and despite a large body of research and professional literature, referred to and referenced above, which demonstrates the susceptibility to errors of judgment and lack of reliability of opinions pertaining to psychological functioning when the opinions are based solely on a claimant’s self-report. Further to this, when objectively evaluated on two separate assessment occasions to date with the MMPI-2, an instrument that has proven efficacy, reliability and validity, in medico-legal and forensic settings, and which is known to increase the accuracy of psychological and psychiatric diagnoses and opinion, the findings are not consistent with persistent manifestations of a situation-specific or reactive condition, such as an Adjustment Disorder, or any other condition that may be reasonably attributed, either by way of course or persistent aggravation, to the circumstances of Ms Austin’s employment with the CBA.[14]

    [14] Exhibit R4 at 43.

34. Both in his reports and when giving evidence, Mr Haralambous referred to the results of his testing as an important factor in assessing Ms Austin’s condition:

    the findings from the MMPI-2 on two separate assessment occasions to date, consistent with (1) the documents available before me that precede Ms Austin’s employment with the CBA and (2) the documents that indicate a focus of psychological therapy on non-work related issues, suggest a more pervasive form of anxiety and depressive disorder, with false attribution of symptoms to the circumstances of her employment and/or exaggeration of current complaints.

    …

    on the balance of probabilities that considers the history available before me (including history that is evident from the documents available before me) and the findings on the objective psychometric evaluation, it is my opinion that Ms Austin does not currently present with manifestations of diagnosable psychological pathology that may be reasonably attributed, either by way of cause or persistent aggravation, to the circumstances of her employment.[15]

    [15] Exhibit R4 at 44.

35. Under the heading Diagnosis of Injury, Mr Haralambous expressed the following opinion:

    Ms Austin does not present with objectively verifiable manifestations of diagnosable psychological pathology that may be reasonably attributed, either by way of cause or persistent aggravation, to the circumstances of her employment with the CBA.

    With a tendency to worry excessively, associated with purported feelings of fatigue, reduced concentration, sleep disturbance, and limited but recurrent episodes of panic, the diagnosis of Generalised Anxiety Disorder, as also suggested by Dr Graham George (report dated 22 November 2016), appears warranted. Generalised Anxiety Disorder is often associated with concurrent depression, as it appears in the present case, and hence the diagnosis of Persistent Depressive Disorder (Dysthymia) may also apply. However, for reasons that are discussed above, these are in my opinion pre-existing conditions that, on the balance of probabilities, are not reasonably attributable to the circumstances of Ms Austin’s employment over 8 years ago.[16]

    [16] Exhibit R4 at 45.

    Evidence of Dr George, Consultant Psychiatrist

1. Dr George assessed Ms Austin in November 2016 at the request of the Bank. He provided a report dated 22 November 2016[17] and gave evidence at the hearing.

   [17] Exhibit R2.

2. Under the heading Summary and Opinion in his report Dr George said:

   My general conclusions are quite simple. Having reviewed all the available evidence and particularly taking note of the fact that there is a well documented history of prior problems with anxiety and depression, I believe that it would be reasonable to suggest that Ms Austin has had an aggravation to an underlying generalised anxiety disorder between 2007 and 2009. I believe there is ample evidence to suggest that she was prone to relapses and remissions of anxiety and depression over time, dependent on both workplace and psychosocial stressors. I believe that this particular condition has been contributed to significantly by aspects of her personality, especially specific obsessional personality traits and that her distress in the workplace, inclusive of difficulties in relationships, has been linked to unresolved dynamic issues related to her formative years.[18]

   [18] Exhibit R2 at 15.

3. When he gave evidence Dr George stressed the importance of the testing carried out by Mr Haralambous in validating the conclusion he (Dr George) had reached:

   …… the only way to discern whether people are telling you the truth or not these days in medical, legal settings is to really use the assistance of a forensic psychologist who does – who can conduct validated testing to see whether people minimise the truth, deny the truth or exaggerate the truth.[19]

   Medical records prior to Ms Austin’s employment by the Bank

   [19] Transcript 13/02/18 at 166.

   Reports and records of Dr Wigge, General Practitioner

4. Dr Wigge was Ms Austin’s General Practitioner before and after Ms Austin’s employment by the Bank. Her reports of 23 February 2014 and 22 April 2014 are in evidence.[20] In his report of 30 November 2017,[21] Mr Haralambous referred to extracts from Dr Wigge’s clinical notes which he considered in preparing the report.

   [20] Exhibits A11 and A12.

   [21] Exhibit R4 at 9-10.

5. In notes of consultations during 2006 and 2007 (up to and including July 2007), Dr Wigge recorded Ms Austin at times suffering episodes of palpitations triggered by anxiety, feelings of stress and anxiety, recurrent symptoms due to stress, suicidal thoughts, and feeling “fairly flat and down past few months”.[22]

   [22] Exhibit R4 at 10.

6. In her report of 23 February 2014, Dr Wigge stated:

   Virginia consulted me for the very first time on the 12^th January 2006.

   I saw her subsequently on the 9/2/06, 13/2/06, 20/2/06, 13/3/06, 11/9/06, 30/7/07 and 4/9/07 prior to her employment with CBA.

   She started employment with the Commonwealth Bank in November 2007.

   Dr Lisa McDonald was her general practitioner from the 19/5/03 until the end of 2005.

   After review of her clinical notes from Dr Lisa McDonald and myself, she at times mentioned during some of her consultations possible stressors in her private life (childhood experiences, personality factors such as being perfectionistic, stressors from her primary relationship with Joachim and immediate family, her father’s failing health and death and her mother’s current deteriorating illness).

   Whether her private life has contributed to her current condition, I am unable to judge.[23]

   Report of Dr O’Neill, Consultant Neurologist[24]

   [23] Exhibit A11 at 53.

   [24] Exhibit R30.

7. Ms Austin consulted Dr O’Neill in February 2006 on referral by Dr Wigge.

8. On 21 February 2006, Dr O’Neill reported, in part:

   I explained to Ms Austin that I had no doubt all symptoms were on the basis of anxiety/minor depression related to the current unsavoury work situation.

   I told her she really must address the issues at work to see if a solution can be reached o else leave the job as her health is clearly affected.

   In the interim period, I have suggested she try Cipramil provided it is not associated with any side-effects. She will start with 10mgs daily and, if tolerated, increase to 20mgs daily thereafter. If helpful, this should be continued until she well and truly feels back to her old self.[25]

   Report of Professor Feneley, Cardiologist [26]

   [25] Exhibit R30 at 4.

   [26] Exhibit R31.

9. Dr Wigge referred Ms Austin to Professor Feneley in March 2006.

10. On 29 March 2006, Professor Feneley reported, in part:

    …palpitations can also occur periodically with anxiety in a very demanding job.

    …

    Consequently, I have reassured Virginia that there is no evidence of any underlying cardiovascular problems. Her palpitations are most likely benign and related to […]: beats under stress rather than an arrhythmia. Nevertheless, I have suggested to Virginia that I am always happy to review her again if she feels the palpitations are becoming more frequent or troublesome.[27]

    Report of Associate Professor Ryan, Orthopaedic Surgeon [28]

    [27] Exhibit R31 at 6.

    [28] Exhibit R29.

11. Associate Professor Ryan examined Ms Austin in February or March 2006 on referral by Dr Wigge. Ms Austin had consulted him previously.

12. On 1 March 2006, Associate Professor Ryan reported to Dr Wigge, in part:

    From the many occasions I have seen Ms Austin, she seems a lady under stress, almost at a knife edge. She finds it difficult to handle stress, but is clearly a very talented interior designer who enjoys her work.

    I consider that her various symptoms are manifestations of an underlying anxiety problem.[29]

    [29] Exhibit R29 at 2.

    Clinical notes and reports of Ms Vidler, Psychologist

13. Dr Wigge referred Ms Austin to Ms Vidler in September 2009. The referral was for psychological intervention for stress, anxiety, and depression.

14. In her report of 30 November 2009, Ms Vidler recorded that Ms Austin “placed the onset of her generalised anxiety and compulsions in her early 30’s, when experiencing work pressures as an interior designer.”[30] Ms Vidler referred to a number of vulnerability factors in Ms Austin’s personal history which pre-dated her employment by the Bank.[31]

    F: CONSIDERATION OF THE ISSUES

    Application 2016/3734

    Since 8 June 2016 has Ms Austin continued to suffer the effects of a psychiatric condition to which her former employment by the Commonwealth Bank of Australia continues to contribute to a significant degree?

    [30] Exhibit R39 at 1.

    [31] Exhibit R39 at 2.

    The Bank’s argument

15. It is argued on behalf of the Bank that, prior to her employment in 2007, Ms Austin suffered from a psychological or psychiatric condition which was aggravated by her employment by the Bank. It was argued further that any aggravation has ceased and the employment is no longer a significant contributor to the condition.

16. I am urged to come to this conclusion principally upon the basis of the opinions of Dr George and Mr Haralambous to which I have already referred.

    Discussion

17. In Ms Austin’s medical records prior to 2007 there is evidence that from time to time she suffered from anxiety and depression. This is not in dispute.

18. On the basis of the evidence of Dr Phillips, Dr Rowe, Dr George and Mr Haralambous, I am satisfied that at all times since 8 June 2016 Ms Austin has suffered from a psychological condition. I accept Dr Phillips’ diagnosis of “an adjustment disorder with mixed anxiety and depressed mood”.[32] This is consistent with the diagnoses of Dr George and Mr Haralambous set out in the extracts from their reports earlier in these reasons.

    [32] Exhibit A5.

19. On the basis of the evidence of Dr Phillips and Dr Rowe I am satisfied that continuously since 8 June 2016, the condition from which Ms Austin suffers has been contributed to by her employment by the Bank to a significant degree. In reaching this conclusion, to the extent that their opinions differ, I prefer the evidence of Dr Phillips and Dr Rowe to that of Dr George and Mr Haralambous.

20. Both Dr George and Mr Haralambous argued that prior to her employment by the Bank, Ms Austin suffered an ongoing psychiatric condition which was beyond the boundaries of normal mental functioning and which may have been aggravated by that employment. It was argued further that any aggravation which may have occurred ceased before 8 June 2016. The condition suffered, at the latest from that date onwards, was the same condition suffered by Ms Austin prior to her employment by the Bank.

21. I accept that from time to time over several years prior to November 2007, Ms Austin sought medical advice in relation to stress she experienced arising from her work and personal circumstances. I accept also that on occasions the practitioners she consulted formed opinions that she suffered from anxiety and depression. However, the opinions of Dr Phillips and Dr Rowe that these were discrete incidents rather than indicative of an ongoing condition, are persuasive.

22. Dr George was unclear as to the nature of the condition which he said Ms Austin suffered prior to her employment by the Bank. He based his opinion in part on the results of the testing carried out by Mr Haralambous. In giving evidence, Dr George said:

    From my perspective the report of Dr Haralambous, especially the initial report, was important because it provided, from my viewpoint, objective and validated evidence to suggest Ms Austin had a longstanding, pervasive disorder encompassing anxiety and depression over time, and probably emanating from childhood adolescent times through to the present, current time.[33]

    However, when I asked Dr George if he was referring to a diagnosable psychiatric condition, he replied:

    No, I’m talking about – I wouldn’t use the word personality disorder. I’d put it more in terms of a long-standing incapacity to be able to negotiate relationships successfully.[34]

    He later said that there was sufficient evidence to “suggest” that Ms Austin had an underlying generalised anxiety disorder and that there had been “some sort of exacerbation” when she was employed by the Bank.[35]

    [33] Transcript 13/02/18 at 160.

    [34] Transcript 13/02/18 at 160.

    [35] Transcript 13/02/18 at 161.

23. Ms Austin gave evidence, which I accept, that as a child she had good relationships with her parents. Dr George was not prepared to accept this. When it was put to him he responded that “that doesn’t compute as far as I’m concerned. It’s not what I understood at the time when I was conducting the interview.”[36] He added that testing such as that carried out by Mr Haralambous was the only way to discern if a person was telling the truth.

    [36] Transcript 13/02/18 at 166.

24. Counsel for Ms Austin questioned Dr George as to the basis on which he reached the conclusion that Ms Austin suffered from a generalised anxiety disorder prior to working for the Bank, taking into consideration the requirements of DSM-V.[37] Dr George was unable to point to material to suggest that Ms Austin met all of the requirements, in particular the requirement that the subject experience excessive anxiety and worry occurring more days than not for at least six months.[38]

    [37] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013).

    [38] Transcript 13/02/18 at 173.

25. I agree with the submission of Counsel for the Bank that DSM-V is not necessarily applicable in determining all claims for compensation which come before the Tribunal. Nevertheless, it is a manual to which reference is commonly made. Dr George did not suggest that he was not referring to the requirements of the manual or its predecessor when he made his diagnosis.

26. Dr George referred in his report to the notes of a treating psychologist relating to Ms Austin being a victim of inappropriate sexual behaviour. He did not explore this comment with her. On the evidence of Ms Austin I am satisfied that no such behaviour occurred. To the extent that Dr George’s opinion is based on this allegation, I am satisfied that it was based on a false premise.

27. Dr George relied heavily on clinical notes of medical practitioners who were not called to give evidence as to their consultations with Ms Austin or the circumstances in which their respective records were compiled.

28. Neither Dr George nor Mr Haralambous was able to satisfactorily explain the basis on which he formed the opinion that any aggravation of Ms Austin’s condition caused by her employment by the Bank would have ceased prior to June 2016.

29. Mr Haralambous was asked for his opinion as to when Ms Austin is likely to have recovered from her work-related psychological injury. He responded:

    Ms Austin does not, in my opinion, provide a sufficiently reliable account to allow for a confident or reliable estimate of when she is likely to have recovered from any work-related psychological injury which, in my opinion, appears to have been an aggravation of a pre-existing Generalised Anxiety Disorder with concurrent Persistent Depressive Disorder (Dysthymia). There may have been complicating facts pertaining to the progress of her claim, as well as non-work related factors such as the death of her father that have complicated her clinical picture. Nonetheless, it would in my opinion be ordinarily expected that recovery from aggravation of a pre-existing psychological disorder would occur within approximately 6 months of removal from the stressors.[39]

    This evidence indicates that Mr Haralambous’ opinion is based on his expectation formed by experience rather than on the facts of this matter.

    [39] Exhibit R4 at 89.

30. In contrast, I found the evidence of both Dr Phillips and Dr Rowe to be consistent and clearly reasoned. While both practitioners accepted that Ms Austin had suffered from stress and anxiety prior to working with the Bank, I prefer their view that Ms Austin did not suffer from long-term anxiety or depression before that time.[40]

    [40] Transcript 12/02/18 at 80-81 and 13/02/18 at 123-124.

31. The development of a chronic condition over time is consistent with Ms Austin’s work history. Her work history prior to 2009 indicates that, although she sought professional help on occasions, she continued working, both as a business-owner and as an employee. Ms Austin held a number of challenging positions over several years. I am satisfied that she was able to continue working in these positions notwithstanding the medical conditions she may have suffered from time to time. This changed after her employment with the Bank came to an end.

32. Dr Rowe stated in his report of 11 April 2017:

    Prior to Ms Austin’s commencement of work at CBA she appears to have been in a successful phase of her life in a long term relationship with Mr Joachim Berger, together with a successful professional career in Facilities Management and a long period of good health. Even whilst working for CBA despite the high levels of initial stress she appeared to successfully carry out her duties, in addition to going beyond her job description. In this regard, Ms Austin does not appear to have suffered from a pre-existing mental illness at the time when she commenced her employment with CBA. Had she suffered from such a mental illness it is unlikely that she would have been successful in the initial phases of her work with CBA, and/or offered a full time position, in addition to having a lengthy and successful professional career beforehand.[41]

    [41] Exhibit A3 at [112].

33. I have also taken into account the evidence of Dr Rowe that, in reaching his conclusions, he considered all of the material before him, including the results of psychometric testing and the history taken from Ms Austin. I accept his evidence that all material should have a “fairly even weight” rather than reliance on one piece of evidence.[42]

    [42] Transcript 13/02/18 at 125.

34. I am satisfied on the balance of probabilities that Ms Austin has developed an adjustment disorder with mixed anxiety and depressed mood as a result of her employment by the Bank. I am satisfied also that she has continued to suffer this condition continuously since 21 July 2009 and that her employment by the Bank has continued to contribute to this condition to a significant degree throughout this time.

    Application 2017/1396

    Has the injury resulted in Ms Austin suffering an injury which is permanent? If so, what is the degree of impairment?

35. Counsel for the Bank agreed with the submission on behalf of Ms Austin that “the issue of the permanent impairment claim stands or falls with the issue of liability” and that there was no evidence from the Bank as to the degree of impairment.[43] I am satisfied on the evidence before me that this is an appropriate concession.

    [43] Transcript 13/04/18 at 238.

36. Having found that Ms Austin continues to suffer from the injury she suffered in 2009 and that her employment by the Bank continues to contribute to a significant degree to that injury, I am satisfied that the injury has resulted in a permanent impairment.

37. On the basis of the evidence of Ms Austin, Dr Phillips, and Dr Rowe, I am satisfied that the injury has persisted for over nine years and that it is unlikely that Ms Austin’s condition will significantly improve. In view of the Bank having ceased payment of medical expenses in June 2016, I am satisfied that Ms Austin has undertaken all reasonable rehabilitative treatment in the circumstances.

38. Based on the evidence of Dr Phillips,[44] I am satisfied that the degree of permanent impairment suffered by Ms Austin is 20 per cent. This is not contested by the Bank.[45]

    G: CONCLUSION

    [44] Exhibit A9 at 11.

    [45] Transcript 13/04/18 at 238.

    Application 2016/3734

39. The reviewable decision made by the Commonwealth Bank of Australia on 14 July 2016 as to its liability to pay compensation to Ms Austin in accordance with sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), will be set aside.

40. In substitution, it will be decided that at all times since 8 June 2016 and at the date of this decision the Commonwealth Bank of Australia is liable to compensate Ms Austin for expenses incurred in respect of, and loss of income arising from, the compensable injury suffered by her on 21 July 2009.

41. Within 14 days of the date of this decision, each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, the Respondent shall pay the costs of the proceedings incurred by the Applicant.

    Application 2017/1396

42. The reviewable decision made by the Commonwealth Bank of Australia on 7 March 2017 denying liability to compensate Ms Austin for permanent impairment arising from the compensable injury will be set aside.

43. In substitution, it will be decided that the Commonwealth Bank of Australia is liable to compensate Ms Austin in respect of 20 per centum permanent impairment arising from the compensable injury suffered by her on 21 July 2009.

44. Within 14 days of the date of this decision, each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, the Respondent shall pay the costs of the proceedings incurred by the Applicant.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated:   6 November 2018

Date(s) of hearing:	12, 13, 14 February 2018 13 April 2018 10 May 2018
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	CommComp Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Turks Legal