BROOKE COSTA and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2013] AATA 694

[2013] AATA 694

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/2798
Re	BROOKE COSTA
APPLICANT
And	MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT

DECISION

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER DR B HUGHSON, MEMBER
Date	27 September 2013
Place	Canberra

The decision under review is affirmed.

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

Professor RM Creyke, Senior Member

Catchwords

COMPENSATION – military compensation – service in the Royal Australian Air Force – major depressive disorder – bruxism – date of injury – aggravation of injury – whether service contributed to condition to a material degree

Legislation

Safety, Rehabilitation and Compensation Act 1988 section 4(1), 5A, 7(4), 14

Cases

Canute v Comcare (2006) 229 ALR 445

Comcare v Canute (2005) 148 FCR 232

Comcare v Mooi (1996) 69 FCR 439

Comcare v Sahu-Khan (2007) 156 FCR 536

Re Morgan  and Comcare [2013] AATA 490

Wiegand v Comcare (No 2) (2007) 94 ALD 154

Secondary Materials

American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision, 2000)

Macquarie Concise Dictionary (5th edn, 2009)

The Shorter Oxford English Dictionary on Historical Principles Vol 11 (3rd edn, with corrections, revisions etc 1978)

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER
DR B HUGHSON, MEMBER

27 September 2013

1. The claim is that Ms Brooke Costa’s service with the Royal Australian Air Force (RAAF) contributed in a material degree to the causation, aggravation, acceleration or recurrence of her diagnosed chronic major depressive disorder with bruxism.

2. The Tribunal is satisfied that it has jurisdiction in the matter.

3. After consideration of the evidence the decision under review is affirmed. The Tribunal’s reasons follow.

   Background

4. Ms Costa, born 1977, enlisted in the RAAF on 26 April 2000, for an initial period of four years. She extended her engagement until retirement age on 2 September 2003. On enlistment her general physical examination was said to be ‘unremarkable’. She was discharged on medical grounds on 21 January 2007. She has not worked since, although by 2011 her conditions had improved to the extent that she could cease taking anti-depressants.

5. Ms Costa’s parents had separated when she was five and she was predominantly raised by her mother, although for years 11 and 12 she lived with her father to further her education.

6. Ms Costa did her initial recruit training and then trained as a clerk. She was posted to Richmond RAAF base in 2001 and remained there until 2006.

7. Ms Costa first presented for psychological treatment in January 2001 on the basis that she was not coping with service life. She was diagnosed with adjustment disorder with depressive features in October 2001 and was hospitalised for two days from 21 October 2001, and for a further period of four days in December 2001. She frequently sought medical assistance for various stresses or illnesses throughout her service career.

8. Ms Costa’s claim is that on enlistment she had a pre-existing depressive disorder which was not properly diagnosed and of which she was unaware. She claimed that the stresses she experienced related to her job, and to separations from her husband, also a member of the RAAF, who had six overseas deployments during her period of service.

9. Particular incidents of Ms Costa’s job which she said caused stress included a ‘safe hands’ delivery of documents in April 2004. During the delivery Ms Costa and, she claimed, other female personnel, had experienced harassment/bullying by the RAAF Load Master. On the return journey she was also stressed when the plane had engine problems, had to dump fuel and make an emergency landing in a secret base in unfriendly territory in the Middle East.

10. General stressful experiences on service concerned inappropriate sexual comments by superiors in the workplace which, because she lived on base, included social occasions as well, and the failure by more senior personnel to police the non-fraternisation policy which she said left her feeling uncomfortable and unsafe. As a result she said she could not trust senior personnel to protect her. She also found the service culture difficult and increasingly tried to withdraw from social events and began to question her career choice.

11. A specific work-related stress was that Ms Costa was tasked with implementing new processes when she was posted in pay processing, the area was understaffed and these factors made the task particularly difficult. In general she complained of being over-worked and doing tasks above her mustering.

12. During service Ms Costa married. She had known her husband since high school and when they both served at Richmond RAAF base she said he was a friend with whom she felt safe. However, after marriage, there were periods when the relationship was tumultuous and the couple separated on more than one occasion.

13. On the first such occasion in October 2001 Ms Costa became particularly depressed and was hospitalised. The psychiatrist who treated her on that occasion listed the causes as problems with her then boyfriend, later husband, and finances. On the second occasion in December 2001, Ms Costa had one of her periodic separations from her boyfriend but said she had been seeing him on and off and this may have contributed but that she ‘thinks something else must be wrong’. No other reasons appear from the hospital’s clinical notes, nor in evidence, to indicate the cause of this second relapse.

14. Ms Costa agreed that during service she needed anti-depressant medication to function.  However, to be deployable she needed to go off the medication and would again become depressed. She also said she needed to hide her depression condition on service and would complain instead of headaches.

15. Ms Costa’s medical classification was downgraded to MEC 303 on 21 January 2002, but on 5 March 2004, she was upgraded to a deployable MEC. Ultimately, however, on 30 June 2006, a medical classification of non-effective on medical grounds (MEC 403) was recommended; a notice of termination was given on 24 July 2006, and Ms Costa was discharged on medical grounds on 21 January 2007.

    Medical evidence

16. From at least March 2001 until July 2004 Ms Costa was seen regularly by a defence clinical psychologist, Mr Norman Rees. His reports focus predominantly on her relationship difficulties with her husband. Other matters referred to include her financial difficulties, her problems with her family in Adelaide, her financial problems, her insomnia, and her need to improve her self-esteem and assertiveness in the workplace, and to see her goal as success in the workplace rather than perfection.

17. Ms Costa was seen by a Defence psychiatrist, Dr Hansen, in September 2001. He noted at the first visit Ms Costa’s continuing depression, anorexia and poor sleep, and that her boyfriend was away at the time with his family. Later he diagnosed adjustment disorder, resolved, with anxious traits and recorded Ms Costa as ‘stressing over events eg her bank balance; mother’s troubles’. He also noted that she ‘Has a good relationship with boyfriend with whom she is living de facto’. However he noted she had left off taking her anti-depressant at that time due to its side effects. He was also asked to review her in October 2001 after her hospitalisation when she had moved out of the house she shared with her boyfriend and was experiencing significant stress from the separation.

18. Dr John Baker, consultant psychiatrist, in a brief report of 6 March 2006 recommended Ms Costa be posted non effective pending her medical discharge. He also recorded she was being treated regularly by him for depression.

19. A report by Dr Brian White, Ms Costa’s treating psychiatrist since July 2008, noted that he first treated her after her hospitalisation in February 2009. In his report dated 15 February 2011, he diagnosed chronic major depressive disorder associated with anxiety and chronic and persisting bruxism. He noted that Ms Costa had first been prescribed an anti-depressant when in Year 12 following an assault on her mother, although according to Ms Costa she only took the medication for a few days. Dr White noted in his 2011 report that she was unfit for employment and for military service, and recommended she continue to receive psychological counselling and remain on anti-depressant medication.

20. Dr White reviewed Ms Costa on 17 February 2012 for the purposes of her claim and reported on 12 March 2012. In his opinion, Ms Costa’s employment in the RAAF ‘did have a major role in precipitating and aggravating the episode of Major Depressive Disorder’. He acknowledged that there are multiple causes of depressive disorder, including biological factors as well as ‘other stresses in life and relationships’. In his view, depressive disorders are a ‘bio-psycho-social process’ and managed using ‘bio-psycho-social approaches’. In a subsequent report of 17 January 2013, Dr White notes there would be contradictory responses by specialists as to whether her service in the RAAF has made a contribution to her condition. He concluded that in his opinion ‘some aspect of her service did cause aggravation of’ her psychological conditions.

21. Dr John Saboisky, consultant psychiatrist, provided a report for the Commission dated 17 November 2011. He stated that Ms Costa suffers from a biologically caused depression. At the same time he noted she had ‘adjustment issues when she first enlisted and significant psycho-social stresses particularly in her marriage’. In his opinion, the complaint of harassment against the RAAF Load Master and the malfunction of the aeroplane on her return from the Middle East were not causal of her depression or a perpetuation of her depression. Equally he denied Dr White’s view that the busy workload of Ms Costa was a cause of her condition. Rather in his view ‘It could very well be that in the context of the depression she found it difficult to cope with the vicissitude of occupational life, an extremely common phenomenon’. He attributed the most significant cause as being ‘the very unsatisfactory quality of her long term relationship’. In his supplementary report of 3 December 2012, Dr Saboisky said he agreed with Dr White that there were psycho-social factors as well as biological factors involved in her condition.

    Legislation

22. The relevant legislation is to be found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) as in force prior to 12 April 2007. Section 4(1) lists relevant definitions including of ‘injury’, ‘disease’, and ‘aggravation’; section 14 provides for liability to pay compensation in respect of an injury to an employee which results in an incapacity for work; section 7(4) describes the date of the injury. An ‘aggravation’  ‘includes acceleration or recurrence’ of a condition.[1]

    [1] Act section 4(1) – definition of ‘aggravation’.

    Issues

23. The issues are:

    ·Did Ms Costa suffer an injury under the Act?

    ·If so, is the Military Rehabilitation and Compensation Commission (Commission) liable to pay compensation under section 14 of the Act?

    Consideration

    Date of injury

24. Ms Costa had lodged a workers’ compensation claim in 2006 which she did not pursue.  That claim listed 22 October 2001 as the date her claimed ‘depression/mental illness’ arose. Her current claim, lodged in 2010, listed 14 January 2001 for her chronic major depressive disorder and bruxism. Ms Costa said she had no independent recollection of why the different dates are shown or which was correct.

25. The Tribunal notes that Ms Costa’s service medical records first show anti-depressants being discussed on 13 July 2001 in response to her presentation with a:

    …lot of stress at present: mother has split with her partner; boyfriend unsympathetic to recent illness; financial stresses with enormous bills at once….and having some problems at work with documentation.

26. An anti-depressant was prescribed by 19 July 2001.

27. At the hearing Ms Costa agreed that the 22 October 2001 date followed soon after her separation from her boyfriend which was the sole reason for her hospitalisation at that time. So that date can be discounted as not related to her employment. The clinical records for January 2001 only refer to consultations for flu, migraines and knee pain.  There is no reference to any psychological condition. So, given this evidence and Ms Costa’s inability to say why that date was nominated that date too can be discounted.  That leaves 15 July 2001 as the date of injury, and the Tribunal finds that this was the date Ms Costa ‘first sought medical treatment’[2] for her depression condition, namely, a ‘disease suffered by an employee’.

    Contribution ‘in a material degree’

    [2] Act section 7(4)(a).

28. Ms Costa has claimed that her psychological condition, namely, her chronic major depressive disorder and bruxism, are due to service. For her claim to succeed, Ms Costa must be able to show that each of her conditions is an ‘injury’. An ‘injury’ is defined as relevant in section 5A(1) of the Act as:

    (a) a disease suffered by an employee; or

    (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

    (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee…, that is an aggravation that arose out of, or in the course of, that employment.

29. In order to be a ‘disease’ the condition must be ‘outside the boundaries of normal mental functioning and behaviour’.[3] Ms Costa has been accepted to have a chronic major depressive disorder with bruxism. Both Dr White and Dr Saboisky agree on the diagnosis of her condition. That diagnosis was made by competent psychiatrists and is expressed in terms indicating their findings were based on the generally recognised standard text, the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4^th edn, Text Revision, 2000). Bruxism is commonly associated with depression. Accordingly Ms Costa has a recognised psychiatric condition which is accordingly a ‘disease’ for the purpose of the Act.

    [3] Comcare v Mooi (1996) 69 FCR 439 at 444.

30. Bruxism or teeth grinding or clenching is a behaviour pattern which may cause physical injury to the teeth, or the chewing muscles and joints that connect the lower jaw to the skull. As such the condition, in accordance with the definition sections in the Act, would be regarded as ‘an injury other than a disease’.[4] However, Dr Saboisky noted that bruxism can be due to anxiety or depression and ‘is a well-known side effect of anti-depressant medication’. Ms Costa was on a variety of anti-depressant medications throughout her service. The Tribunal is prepared to infer that her bruxism, in the absence of evidence that it occurred prior to, or independently of, her depressive condition, is closely related to and can be categorised as part of her psychological condition. That appears to be the way it has been treated throughout this application.

    [4] Act section 5A(1)(b).

31. Ms Costa has a psychiatric injury.  Accordingly, the Tribunal must apply the relevant test – the ‘in a material degree’ test[5] – to determine if there is a causal link to her employment.

    In a material degree

    [5] Act section 7.

32. Ms Costa denied that throughout her service career the most significant cause of her psychological condition was difficulty with her relationship with her husband. She acknowledged that she had separated from him a number of times. She agreed that the relationship issue was a factor, but maintained that at times other things have intertwined. She agreed that trying to decrease her anti-depressant medication has possibly been one of those factors.

33. As she said in an undated submission stamped as received on 11 July 2006:

    I am certain that my military service has contributed to the aggravation, acceleration and the reoccurrence of my condition. I am unable to prove that it caused my condition due to the lack of specific report of injury or incident report being documented. But due to my condition being cumulative, there is no one circumstance or specific incident that could have been documented.

    …

    Depression was not present prior to me enlisting, there was no evidence of it in my intensive psychological examination conducted for entry into military service…There has [sic] been personal factors documented, but these factors are symptoms of my condition and a result of military stressors. It has been extremely difficult to effectively manage personal issues whilst dealing with major depression. The stress and trauma of my military service and my condition has had an ongoing and continual impact on personal factors.

34. The Tribunal must be satisfied that employment contributed to Ms Costa’s psychological condition ‘in a material degree’. That expression was considered by French and Stone JJ in Comcare v Canute,[6] views which were not discounted on appeal to the High Court.[7] Their Honours’ view on the meaning of ‘material’ started with an examination of the second reading speech to the Act:

    An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged... (Emphasis added)…

    On this basis, the observations of the Full Court in Treloar [v Australian Telecommunications Commission (1990) 26 FCR 316] at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a ‘but for’ test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to [be] said about this issue.[8]

    [6] Comcare v Canute (2005) 148 FCR 232.

    [7] Canute v Comcare (2006) 229 ALR 445.

    [8] Comcare v Canute (2005) 148 FCR 232 at [66] – [67].

35. These obiter remarks were accepted by Finn J, in Comcare v Sahu-Khan[9] and again in Wiegand v Comcare (No 2),[10] who said: ‘In conformity with the dictum in Canute, …the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar.[11]

    [9] Comcare v Sahu-Khan (2007) 156 FCR 536 at [12].

    [10] Wiegand v Comcare (No 2) (2007) 94 ALD 154.

    [11] Id at [6].

36. Member Shanahan in Re Morgan and Comcare defined ‘material’ relying on the Oxford and Macquarie Dictionaries, as meaning ‘important, essential, relevant’ or ‘of substantial import or much consequence’ respectively. [12] The Dictionaries also give the Law, etc meaning as ‘of such significance as to be likely to influence the determination of a cause’, or ‘likely to influence the determination of a cause’ respectively.[13]

    [12] Re Morgan  and Comcare [2013] AATA 490 at [103].

    [13] The Shorter Oxford English Dictionary on Historical Principles Vol 11 (3^rd edn, with corrections, revisions etc 1978) 1289; Macquarie Concise Dictionary (5^th edn, 2009) 769.

1. In summary, to be material, a contribution must be more than a mere contributing factor, does not have to be the sole or the most important factor but it must have a close connection or be likely to influence or to contribute to the employee’s condition.

2. The Tribunal finds that Ms Costa suffers from a depressive condition which she had first experienced prior to enlistment. The condition recurred to such a degree while Ms Costa was on service that it caused her to be hospitalised on occasions, and she continues to have a chronic, although slowly improving, form of the condition. Although Ms Costa claims she was unaware of her condition prior to service, the evidence establishes at least one or two occasions preceding service in which Ms Costa had been prescribed medication for a depressive condition. Accordingly, in order to succeed, she must establish that service aggravated her condition.

3. The Tribunal accepts that there are multiple reasons why Ms Costa’s psychological condition became chronic while on service, ultimately leading to her being medically discharged. Ms Costa found the culture on service difficult to accept. She objected to being spoken strongly to, a factor which she described as harassment, and to comments by male members of the forces, generally more senior to her, which had sexual connotations. She said on occasions these instances had caused her to feel embarrassed, uncomfortable, or pressured by behaviours she was exposed to on service. As a consequence, as she said, she withdrew socially, and sought refuge with the person who became her husband. Her worries about her husband’s absences overseas on six occasions during her service were also of concern. She also referred to the occasion in 2004 on which the plane in which she was travelling for employment reasons encountered an emergency which caused her some trepidation.

4. None of these events, however, were referred to in the contemporaneous medical notes providing the history of her development of a serious depressive illness. Ms Costa’s failure to refer to these matters at the time indicated she did not see them as productive of her illness. In other words, the events she specifically referred to neither objectively nor in her case subjectively were likely to influence or contribute in a material degree to her depressive condition.

5. The diagnosis of Ms Costa’s condition in July 2001 listed as the reasons she sought medical assistance: problems relating to her mother, a separation from her then boyfriend, and financial stress. The only work related issue was listed last in the medical history, namely, ‘having some problems at work with documentation’. Given its placement and the phraseology, and by comparison with the remaining matters listed the problems with documentation does not indicate on its own that it was of such moment that it influenced or contributed to the development of her depressive condition. Her husband’s deployments overseas also could not be attributed to Ms Costa’s employment.

6. Ms Costa conceded at the hearing, the first hospitalisation for her condition in October 2001 was solely due to her then separation from her boyfriend. So employment was not implicated. There is no evidence of the reasons for her second hospitalisation in December 2001, so again, the Tribunal cannot be satisfied that employment contributed in a material degree.

7. Ms Costa’s depressive condition, which preceded service, required her to be on medication to function. When she was facing a medical assessment to determine her deployability she needed to go off her anti-depressant medication and the pattern was for her depression to recur more strongly as a consequence. Ultimately, while on service, Ms Costa reached the point at which her medical advisers indicated she needed to stay on her medical indefinitely. Weaning herself from her medication is a step which she has only taken since discharge.

8. That finding would not detract from her claim if it could be established that it was conditions on service which exacerbated or accelerated or aggravated her depressive condition. Her condition undoubtedly worsened on service. However, the evidence does not establish to the Tribunal’s satisfaction that it was events on service which contributed in a material degree to the worsening of her condition. Rather, the predominant factors involved those listed when her depression was first diagnosed in 2001, namely, relationship issues with her boyfriend, later husband, and her attempts to cease reliance on her medication which led to the exacerbation, acceleration or aggravation of her depressive condition in a material degree. The work-related matters identified by Ms Costa can be categorised as ‘mere contributing factors’, rather than contributing or influencing the development of her condition ‘in a material degree’. The Tribunal so finds. Accordingly the decision under review relating to Ms Costa’s depressive condition, which includes her bruxism, is affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Dr B Hughson, Member

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

Associate

Dated 27 September 2013

Dates of hearing	1 and 2 August 2013
Counsel for the Applicant	Mr Glenn Kolomeitz
Advocate for the Applicant	Mr Robin Harris
Solicitors for the Applicant	Vietnam Veterans' Federation ACT Branch
Counsel for the Respondent	Mr Ben Dube
Advocate for the Respondent	Mr Luke Woolley
Solicitors for the Respondent	Sparke Helmore Lawyers