Black and Comcare (Compensation)

[2017] AATA 3056

Black and Comcare (Compensation) [2017] AATA 3056 (22 September 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3087

Re:Pamela Black

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:22 September 2017

Date of written reasons:        18 October 2017

Place:Sydney

The decision of Comcare dated 22 April 2016 is varied so that from 1 February 2016 the respondent is liable to pay compensation for incapacity payments pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988. In relation to the respondent’s liability to pay compensation for medical expenses under section 16 of that Act, the decision of Comcare dated 22 April 2016 remains the same.

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

Senior Member M J McGrowdie

CATCHWORDS

WORKER’S COMPENSATION – psychological injuries – whether the applicant was incapacitated from work as a result of psychological injuries – applicant suffered an incapacity – whether the respondent is liable to pay applicant’s medical expenses – respondent not liable to pay medical expenses – decision under review varied

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19

REASONS FOR DECISION

Senior Member M J McGrowdie

18 October 2017

1. The applicant, Pamela Black, seeks a review of a reconsideration determination made by Comcare on 1 February 2016 which denied medical expenses and incapacity payments from 1 February 2016 in respect of a physiological injury, namely anxiety state and panic disorder, deemed to have been suffered on 15 February 2015.

2. The applicant lives in the Blue Mountains as a single mother of two sons and is 46 years of age. The events leading up to the applicant’s physiological incapacity arose in early 2013 when the applicant was dealing with a difficult and aggressive client at work.  The applicant was employed by the Commonwealth Rehabilitation Service (CRS) to provide services to persons undertaking rehabilitation in conjunction with, or as a condition for receipt of social security benefits.  The applicant has a degree in psychology and was a trained case worker.  She had been in the job since 2009, however, and according to the applicant’s statement, the changes to eligibility criteria benefits and a reduction in resources made her role more and more challenging, leading to more difficult interactions with clients who were becoming increasingly frustrated and angry.

3. Against this background the applicant encountered a particularly aggressive and intimidating male client who had significant mental health issues.  Although the applicant’s role was to facilitate him into employment, she was of the view that he would be unable to hold down a job, and his benefits were contingent upon him cooperating with a rehabilitation program.  Whilst the applicant had been experiencing similar frustrations with multiple clients, this particular client appeared to the applicant to direct his anger directly at her, such that she did not feel safe with him.

4. The applicant brought the matter to the attention of her supervisor, but there was no alternative to the applicant continuing to deal personally with this client.  She had a further meeting with him on 4 January 2013 following initial meetings, leaving the applicant upset and fearful.  On 27 January 2013 the client again attended the office and the applicant suffered a panic attack.  The applicant attended her general practitioner, Dr Samantha Critchley, on 28 January 2013 and was referred to a psychologist, Maria Quinn, whom the applicant had previously attended. 

5. The applicant had suffered childhood trauma and was in a troubled marriage.   The applicant was also experiencing significant issues with her brother. These matters led the applicant to seek counselling and other health services to help her deal with stress and the aftermath of these events.  Nonetheless, the applicant had been able to establish a career and to largely function effectively in her work until around January 2013.  The applicant has not returned to work with the Department since early 2013.

6. After engaging in a rehabilitation program the applicant secured work in a variety of casual employments, usually concurrently, such as performing as an adventure tour guide in the Blue Mountains, working in an adventure equipment store as a sales person, a provider of activity-based services for impaired persons as the local community services centre, as a first aid work at marathon events and a labourer.  As part of her rehabilitation program the applicant did various certificate courses to qualify herself in regard to a number of these activities.  Her work is intermittent, and that is challenging, although she probably maintains her pre-injury hours of 30 hours per week, which leaves her some time, as before, to devote to her family responsibilities.  Although working similar hours, her income has dropped from what it was while working at the CRS.

7. The applicant has continued to see Dr Critchley and Ms Quinn.  Dr Critchley has been the applicant’s general practitioner for an extended period of time, and on Dr Critchley’s referral saw Dr Pusic, psychiatrist, in 2009, for her episodic depression.  She was prescribed Epilim, a mood stabiliser, and left it to Dr Crichtley to refer the applicant to a psychologist if warranted.  Dr Critchley again referred the applicant to Ms Quinn in May 2012.  The applicant consulted Ms Quinn in relation to ongoing issues related to her childhood experiences, and issues relating to her brother.  The applicant, who separated from her husband in 2010, and seems to have coped with that well enough.  She was subsequently divorced and her former husband embarked on a new relationship.  Work issues were also discussed.

8. In May 2013 the applicant was seen by Dr Rose, psychiatrist, at the request of her employer.  In a report dated 21 May 2013, Dr Rose recorded the complaints of the applicant with regard to her reaction to her employment stressors.  He noted that the applicant had coped with work at CRS until a time when clients became increasingly more aggressive.  The applicant first saw Maria Quinn, psychologist, on 24 August 2010 on the referral of Dr Critchley.  Primarily the applicant was dealing with the separation from her husband.  By the end of 2011 her reactive depression had resolved, as indicated by Ms Quinn in her report dated 9 April 2013.

9. The distress experienced by the applicant in relation to her work culminated in the events of early 2013 when the applicant was confronted with the angry and aggressive client on a number of occasions.  Dr Michael Hong, psychiatrist, reported to Comcare on 13 June 2014.  Dr Hong took a history of exposure to aggressive clients at work.  Dr Hong also took a history of childhood trauma and difficulties in the applicant’s marriage.  He considered that the applicant had a genetic vulnerability for mental illness.  He was of the opinion that the applicant’s condition had stabilised, but that exposure to aggressive clients would be a potent trigger of her early trauma and she should avoid work where there would be a high chance of dealing with confrontation with aggressive clients.

10. On 31 July 2015 Dr Critchley reported that when seen on 8 March 2013 the applicant related that she had suffered a severe panic attack at work.  The applicant continued to see Dr Critchley.  In the report of 31 July 2015 Dr Critchley expressed the opinion that the applicant could not work with the CRS, stating that this decision was made after numerous consultations with the applicant, discussions with her psychologist Maria Quinn, and rehabilitation provider Michael Monroe, and confirmation from independent psychiatrist Dr Norman Rose.

11. The applicant who had engaged in rehabilitation was retrained in adventure tourism.  As referred to previously, the applicant took up a number of occupations which did not involve high conflict clients.  In a report to Comcare of 1 October 2015 Dr Chow, psychiatrist, expressed the opinion that the applicant’s prognosis was good if she did not return to working in an environment that she perceived as a threat and which she feared.  The history recorded by Dr Chow was that the applicant had experienced childhood trauma, leading to post-traumatic stress disorder and depression, a difficult marriage, but from which she had recovered before later developing a generalised anxiety disorder after repeated encounters with aggressive customers in her work.

12. In November 2015 the applicant was shopping at a local supermarket in the Blue Mountains when she observed one of her former clients dealing aggressively with a child who was a young girl.  This caused the applicant considerable alarm, and left her feeling panicked.  The applicant argued that this incident was symptomatic of the vulnerability suffered by her from dealing with this person in her employment with the service.  The respondent argued that seeing this former client deal angrily to a young girl was a trigger due to her own childhood trauma. 

13. Likely, however, both vulnerabilities were triggered.  There is, to my mind, no doubt that the applicant was left vulnerable by her experiences in the workplace, and this is borne out by the contemporaneous medical evidence.  It is an indication that the applicant’s sensitivity developed with her work with aggressive clients.  This is not to say that it was not a fresh incident that occurred at the supermarket from which the applicant has not made a claim.  It is clear that following this incident the applicant experienced something of a setback, giving rise to the need for medical attention.

14. The history of the incident in the supermarket is recorded by Ms Quinn in her clinical notes of 11 November 2015.  The entry records the applicant as saying that if she was to go back to work at the service it would destroy her.  By letter dated 1 February 2016 Comcare wrote to the applicant that a determination had been made that the applicant did not presently suffer from the effects of her compensable condition of anxiety state and panic disorder.  Comcare relied on the report of Dr Chow dated 1 October 2013 when Dr Chow stated that the applicant was now symptom-free, and there was no need for any other treatment.  However, Dr Chow, in the same report, stated that:

15. (The applicant) is currently not working within the (service) therefore she is symptom-free.

16. In the end, Comcare determined that the applicant had no present entitlement to compensation in respect of medical expenses under section 16 of the Safety Rehabilitation and Compensation Act 1988, or compensation for incapacity under section 19. 

17. The applicant has challenged the determination.  When the applicant saw Ms Quinn, psychologist, on 25 November 2015 the applicant reported that she was awaiting a decision from Comcare.  In the meantime the applicant was engaged in her other employment, but was finding it sporadic.  On 7 December 2015 the applicant stated that she was still waiting on Comcare.  On 15 January 2016 the applicant felt frustrated and would, in her words, “have to fight the system that destroyed her.”  This all followed a request from Comcare, in October 2015, that she provide medical evidence to support her claim, that was not an unreasonable request.

18. On 29 February 2016, the applicant was still in an anxious state when she visited Ms Quinn and was concerned about her finances and feeling vulnerable.  The applicant again referred to the incident at the shopping centre.  This incident was again mentioned on 26 March 2016.  By 1 April 2016 the applicant was improving.  On 26 May 2016 the applicant reported that there was a solicitor who would do her appeal against the Comcare decision, but felt insecure and trapped by the system with her having to work so hard in other employment and to not earn as much as she did before.  Visits by the applicant to Ms Quinn continued up until October 2016, according to the records produced by Ms Quinn, the applicant, though, has continued to see Ms Quinn from time to time.

19. On 13 September 2016 Dr Hong again examined the applicant.  He commented in a report dated 21 September 2016 that the applicant was having regular counselling, which did not offer her much benefit.  Dr Hong considered that the applicant’s mental health condition was in remission.  Dr Hong expressed the view that the applicant continued to suffer intermittent transient anxiety and remained vulnerable.  Dr Hong did not foresee that the applicant could work in a role where she would be able to undertake a customer-facing role with the Department.  It seems to me that the applicant had largely recovered the effects of the incident at the supermarket on November 2015 by that time, but was left with a similar vulnerability as referred to by Dr Hong, as she had following the incidents in around January 2013, prior to the supermarket events.

20. The applicant was seen by Dr Gertler, consultant psychiatrist, on 15 December 2016, at the request of the Department.  Dr Gertler produced a report dated 15 December 2016 in which he expressed the opinion that the applicant’s symptoms of post-traumatic stress disorder had largely resolved, but that she was left with hyper-reactivity to and reminders of her work with CRS which were likely to continue into the foreseeable future.  Dr Gertler did not consider that the applicant could return to her previous employment role or indeed any role withCRS. 

21. The respondent had the applicant examined by Mr Haralambous, clinical and forensic psychologist.  Mr Haralambous produced a 41-page report dated 14 February 2017, the essence of which was that Mr Haralambous considered that the applicant had suffered from childhood and other trauma, and had suffered a temporary aggravation by way of the events at work of this underlying and pre-existing condition.  Mr Haralambous also gave oral evidence at the hearing.  His evidence was that the applicant’s vulnerability in respect of her employment with the Department resulted from early childhood trauma, and that any exacerbation of the applicant’s condition in her employment was temporary only.  Mr Haralambous considered that the applicant could perform work for CRS as long as she was not exposed to aggressive clients.  Mr Haralambous was, however, prepared to allow that the events at work in late 2014, early 2015, would have added a layer to the applicant’s vulnerability.  To my mind the effect of the workplace trauma are ongoing, even though no acute symptomatology apparent. 

22. Associate Professor Robertson also gave evidence and provided reports.  Associate Professor Robertson was retained by the solicitors for the applicant to provide an opinion.  The reports are dated 19 October 2016 and 22 May 2017.  In his report of 22 May 2017 the Associate Professor confirms his opinion that the workplace exacerbation of her long-term physiological issues has ceased.  In oral evidence, however, Associate Professor Robertson expanded on his views in relation to the applicant and considered that the applicant, following the workplace events and as a result of them, that the applicant is now more vulnerable than before, and is now permanently unfit for work with the Department such that she had performed previously.

23. Dr Hong, psychiatrist, also gave oral evidence.  He had provided two reports to the respondent, namely the reports of 13 June 2014 and 21 September 2016.  Dr Hong accepted that the events in the workplace had lowered the applicant’s threshold to such exposure.  In his report of 21 September 2016 Dr Hong could not foresee that the applicant would be able to work in a role where she would be able to undertake a customer-facing role with CRS.  Primarily this was due to the applicant’s pre-existing psychological disturbance, and also to her increased vulnerability due to the workplace events.  It should be borne in mind that whatever pre-existing state the applicant had suffered from, she had been doing the job with CRS  since 2009 and only experienced difficulties in late 2014, early 2015, when there was a shift in the stressors at work.

24. My overall impression is that whilst the applicant did have psychological  difficulties from the past, the events at work were such as to give rise to an inability to continue in any customer service role forCRS, notwithstanding that her current employment suggests a degree of interpersonal skills.  Accordingly, I would regard the applicant as having an incapacity to perform her pre-injury duties, and that the applicant is entitled to such incapacity payments as are appropriate, pursuant to section 19 of the Safety Rehabilitation and Compensation Act, from 1 February 2016, being the date from which payments were ceased.

25. With regard to medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act, the respondent had accepted liability to pay those up to 1 February 2016.  I have already detailed that the applicant suffered an exacerbation of her symptoms as a result of the encounter at the supermarket in November 2015.  The events which occurred at that time led to the need for medical treatment, however, no claim has been made for that injury in respect of those events.  While they were connected to the events in the workplace, the symptomatology which was manifested for a period following the events of November 2015 were more particularly related to those events which I would regard as fresh events.  Notwithstanding this, I am of the view that the incapacity which the applicant had suffered a result of the work events had continued throughout that period. 

26. I do not, though, consider that the medical expenses from 1 February 2016 are attributable to the earlier workplace events, as was determined by the Comcare delegate from 1 February 2016.  I note that the applicant’s condition is now and has, since the exacerbation following the November 2015 supermarket events, largely been in remission, notwithstanding that the applicant continues to suffer in an incapacity to return to her pre-injury duties with CRS as a result of the workplace injury.

27. That leads me to a final conclusion that the Tribunal should vary the decision of Comcare dated 22 April 2016 so that from 1 February 2016 the respondent is liable to pay compensation for incapacity payments such as they are under section 19 of the Safety Rehabilitation and Compensation Act 1988, but that in relation to the respondent’s liability to pay compensation for medical expenses under section 16 of that Act, the decision of Comcare dated 22 April 2016 should remain the same.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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

Associate

Dated: 18 October 2017

Date(s) of hearing:	28 August 2017, 29 August 2017, 30 August 2017 and 22 September 2017
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Mr A Ghaleb, Slater and Gordon
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Mr P Snell, Lehmann Snell Lawyers