Bui and Australian Postal Corporation (Compensation)
[2016] AATA 135
•8 March 2016
Bui and Australian Postal Corporation (Compensation) [2016] AATA 135 (8 March 2016)
Division: GENERAL DIVISION
File Number: 2012/4709
Re: NINA BUI
APPLICANT
And:AUSTRALIAN POSTAL CORPORATION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 8 March 2016
Place Melbourne
The Tribunal decides to:
affirm the decision of the respondent dated 20 August 2012 affirming its earlier decision dated 4 July 2012 that the applicant has suffered neither an injury nor an aggravation of an injury.
……[sgd]……………….
Deputy President
CATCHWORDS – COMPENSATION – whether injury or aggravation of injury in relevant period – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Commonwealth Employees’ Compensation Act 1930 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 5(1), 5(1)(b), 5(1)(c), 5(1A), 5A, 5A(1), 5A(2), 5B, 5B(1), 5B(2), 5B(3), 7(4), 14(1), 14(2), 14(3), 108E(a), 108E(d)CASES
Bui v Australian Postal Corporation [2010] FCA 1021
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 91 ALD 552
Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522; 227 ALR 75; 42 AAR 335; 90 ALD 31
Comcare v Mooi [1996] FCA 1587; 69 FCR 439
Commonwealth v Beattie [1981] FCA 88; 35 ALR 369
Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45
Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626
Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) CLR 537
Re Bui and Australian Postal Corporation [2009] AATA 803
Re Madden and Australian Postal Corporation [2008] AATA 411
Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VicRp 42; [1977] VR 342; (1976) 10 ALR 441; 76 ATC 4130REASONS FOR DECISION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides that “… Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.”[1] The Australian Postal Corporation (APC) is a licensed corporation under the SRC Act. As one of its employees, Ms Nina Bui was an employee within the meaning of ss 5(1) and (1A) of the SRC Act. In 2006, she first suffered from major depression with psychotic symptoms and anxiety (pre-existing condition) and ceased work on 13 April 2006 as a consequence. When Ms Bui claimed compensation in respect of her pre-existing condition, APC denied liability.[2] Its decision was affirmed by a differently constituted Tribunal[3] and the Federal Court dismissed an appeal from that decision.[4]
[1] Section 14(1) is subject to qualifications in ss 14(2) and (3) but they are not relevant in this case.
[2] As a licensee, APC’s functions include those of determining and managing claims. In doing so, it must meet all of Comcare’s obligations: SRC Act; ss 108E(a) and (d).
[3] Re Bui and Australian Postal Corporation [2009] AATA 803; Senior Member Friedman
[4] Bui v Australian Postal Corporation [2010] FCA 1021; Marshall J
Ms Bui returned to work at APC on 23 May 2011 on a graduated return to work programme. On 30 May 2012, Ms Bui lodged a claim seeking compensation for an injury – anxiety and major depression – that she stated she had suffered as a result of an assessment process conducted by Mr Grant Bloomer between 16 and 26 April 2012. In a decision dated
4 July 2012, APC denied liability on the basis that Ms Bui had suffered neither an injury nor an aggravation of an injury. Later, on 20 August 2012, it affirmed that decision. Ms Bui has applied for review of that decision. I have decided that Ms Bui has not suffered an injury within the meaning of the SRC Act. Therefore, she is not entitled to compensation under that legislation.
BACKGROUND
In the previous proceedings, APC had conceded that Ms Bui suffered from a depressive disorder from 30 January 2006.[5] Before those proceedings, Dr Michael Epstein, a Psychiatrist, had expressed the opinion in a report dated 24 November 2006 that she had developed a Major Depressive Disorder with Panic Disorder and Agoraphobia.[6] He repeated his opinion in his later report dated 30 January 2008.[7] In a report dated
16 July 2008, Professor George Mendelson, a Consultant Psychiatrist, had come to the view that Ms Bui was suffering from Dysthymic Disorder and that, in late 2007, she had suffered an episode of Major Depression with mood congruent psychotic symptoms.[8]
[5] [2009] AATA 803 at [4]
[6] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T42 at 263
[7] T documents; T42 at 255
[8] T documents; T42 at 248
THE SUBMISSIONS
At the heart of Ms Bui’s submissions is the proposition that APC had a duty of care to provide a safe working environment during her Return to Work programme (RTW) and it failed to do so. Instead, APC deliberately designed and carried out an RTW in order to aggravate her existing mental illness and to precipitate her ultimate resignation in
August 2012. In the course of the RTW, her assessor had subjected her to sexual harassment and bullying but she also referred to other incidents. That was not reasonable action. She relied on her having been cleared by APC’s psychiatrist, Dr Hollander, to return to work and to not having claimed sick leave from May 2011 until April 2012.
On behalf of APC, Ms McMahon submitted that, in the period from 16 to 26 April 2012,
Ms Bui has suffered from neither a disease nor a mental injury but from an emotional reaction. An emotional reaction, she continued, is not a disease because she has not suffered a condition that is outside the boundaries of normal mental functioning and behaviour. She referred to the case of Re Madden and Australian Postal Corporation,[9] in which a similar submission had been made.[10]
[9] [2008] AATA 411; Mr Kenny and Dr Maynard; Members
[10] On my understanding of the case, the Tribunal acknowledged at [25] of its reasons for decision that the submission had been made but did not need to address it. It decided the matter instead on the basis that “any psychiatric condition suffered by Mr Madden in November resulted from the rejection of his compensation claim”[10] and that the rejection was “… not a causal association embraced by ss 4 or 14 of the Act.”: [2008] AATA 411 at [29]
The issue arises for resolution in this case. As Ms McMahon submitted, the principles established in the case of Comcare v Mooi[11] (Mooi), are relevant as is the evidence of the nature of Ms Bui’s condition. She relied on the evidence of Professor Mendelson, Dr Cooray and Dr Hollander.
[11] [1996] FCA 1587; (1996) 69 FCR 439; Drummond J
LEGISLATIVE PROVISIONS
Section 14(1) of the SRC Act provides:
“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.”
Comcare’s, and so APC’s, liability is qualified by other provisions of Part II. They are not relevant in this case for the issue revolves around whether Ms Bui has suffered an injury. Any entitlements that Ms Bui may have under the SRC Act will only arise if she has suffered an injury.
The term “injury” has the meaning given to it by s 5A.[12] Section 5A(1) provides:
“injury means:
(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 (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.” (emphasis added)
[12] SRC Act; s 4(1)
Each of the words or expressions I have reproduced in bold italicised font is defined elsewhere in the SRC Act. I will set out each of those definitions together with other
relevant definitions as they arise:
(1)Disease
“disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”[13]
[13] SRC Act; s 5B(1)
An “ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”[14]
[14] SRC Act; s 4(1)
The expression “significant degree means a degree that is substantially more than material.”[15]
[15] SRC Act; s 5B(3)
Section 5B(2) sets out matters to which regard may be had in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment by the Commonwealth but does not limit consideration to those matters. They are:
“(a) the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.”
(2)Aggravation
“aggravation includes acceleration or recurrence.”[16]
[16] SRC Act; s 4(1)
(3)Reasonable administrative action
“For the purposes of subsection [5A](1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment,;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, in connection with his or her employment.”[17]
[17] SRC Act; s 5A(2)
(4)When an injury is taken to have been sustained
“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”[18]
[18] SRC Act; s 7(4)
What is a disease?
The concept of disease had been considered by the Federal Court in the case of Mooi. At the time it was decided, s 5B had not been enacted and the definitions of “disease” and “ailment” were found in s 4(1) of the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting that:
“ By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.”[19]
[19] [1996] FCA 1587; (1996) 69 FCR 439 at [10]; 442-443
Referring to the ordinary meanings of the word “disease” as well as the meanings given in medical dictionaries, Drummond J concluded:
“Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.”[20]
12. Mooi was concerned with a claim for compensation for incapacity as a result of work-related stress. In that context, Drummond J explained:
“… The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee’s mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe. … [I]n my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible [sic] under s 14(1).”[21]
[20] [1996] FCA 1587; (1996) 69 FCR 439 at [16]; 445
[21] [1996] FCA 1587; (1996) 69 FCR 439 at [12]; 442
What is an aggravation of a disease?
This was a question considered in Ogden Industries Pty Limited v Lucas[22] (Ogden). Arising out of his employment, Mr Lucas suffered a coronary occlusion and myocardial infarction on 1 February 1965. That amounted to an injury in the form of an aggravation and acceleration of his coronary artery disease and myocardial degeneration. The disease progressed and he suffered a further coronary occlusion and myocardial infarction a little before 30 June 1965. A few days later, on 7 July 1965, he died from a pulmonary oedema. The parties had agreed that pulmonary oedema was a disease for the purposes of the Workers Compensation Act 1958 (Vic). It had arisen out of a sudden physiological change for the worse in Mr Lucas’s lungs and out of the work-aggravated and accelerated coronary artery disease and myocardial infarction. Mr Lucas’s pulmonary oedema was the terminal event in a long history of cardiac disease.
[22] [1967] HCA 30; (1967) 116 CLR 537; Barwick CJ, Taylor, Windeyer and Owen JJ; Kitto J dissenting
The majority of the High Court decided that Mr Lucas had not suffered a further injury within the meaning of the legislation. Windeyer J explained it in this way:
“… It seems to me that it is impossible to bring this occurrence within that definition. It was not in itself a disease contracted in the course of employment. Was it the aggravation … of a pre-existing disease? It seems to me that it cannot be said that it was. ‘Aggravation’ means, I think, that an existing disease had been made worse, not that it has simply become worse.”[23]
[23] [1967] HCA 30; (1967) 116 CLR 537 at [29]; 593
This is consistent with the views later expressed by the Full Court of the Federal Court in Commonwealth v Beattie.[24] It was in a different factual and legislative context requiring consideration of whether incapacitating pain brought on by activity undertaken in the course of employment could constitute the aggravation of a physical injury notwithstanding that there was no pathological change. In their joint judgment, Evatt and Sheppard JJ said:
“ It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.
[24] [1981] FCA 88; 35 ALR 369; Evatt, Sheppard and Kelly JJ
What is an injury be it physical or mental?
In Canute v Comcare[25] (Canute), the High Court made three general observations about the concept of an “injury”:
“… First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.”[26]
[25] [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 91 ALD 552; Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ
[26] [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 91 ALD 552 at [10]; 540; 448; 555-556
The definition of “injury” is framed in disjunctive terms of “disease”, an injury within the meaning of s 5(1)(b) or an aggravation of a physical or mental injury as prescribed in s 5(1)(c). It is an exhaustive definition. That follows from the fact that Parliament has prescribed that the word “injury means” (emphasis added). It has not prescribed what it “includes”. Had it taken that latter course in the context of the SRC Act, I suggest that Parliament would be taken to have intended to enlarge the ordinary meaning of the word. By choosing the word “means”, Parliament has indicated that it intends the meanings it has given to be exhaustive.[27]
[27] Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342; (1976) 10 ALR 441; 76 ATC 4130 at 353; 455; 4139; McInerney J
When it is used in s 5(1)(b), the word “injury” is not further defined but, if it is to come within that paragraph and so be an injury within the meaning of the SRC Act, it must be one that has four particular features. One is that it is not a disease. That brings into consideration the meaning of “disease”. The second is that it may be either a physical or mental injury. The third is that it must be an injury “arising out of, or in the course of, the employee’s employment.” In this regard, the SRC Act draws a distinction between the consequences of a person’s suffering an injury or a disease. In the case of the former, there does not need to be proof of a specific causal connection between an injury and the employee’s employment.[28] That contrasts with the requirement of the causal connection required by the definition of “disease” in s 5B(1) i.e. that it “… was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.” The definition of “injury” shares its fourth feature in common with that of “disease” and with an aggravation of a physical or mental injury. That feature is that it was not suffered as a result of reasonable administrative action. Beyond those features, I must look to the authorities in order to determine the meaning of “injury” as it is used in s 5(1)(b).
[28] All that is required is that the injury suffered by an employee arises out of, or in the course of, his or her employment: Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45 at 52 per Priestley JA
In Comcare v Etheridge,[29] Branson J, with whom Spender and Nicholson JJ agreed, considered the definition of “injury” as it appeared in the Commonwealth Employees’ Compensation Act 1930 (1930 Act) in 1949. At that time, it had been amended to read:
“‘injury’ means any physical or mental injury and includes an aggravation, acceleration or recurrence of a pre-existing injury.”
Her Honour said:
“ The above definition discloses an intention to put beyond doubt that a mental injury, and also an aggravation, acceleration or recurrence of a preexisting injury, is an ‘injury’ for the purposes of the Act. However, these kinds of the definition does not seek to give the word ‘injury’ a meaning other than that which it bears in common use. In common use, as the Macquarie Dictionary reflects, an injury is a harm sustained. In the context of workers’ compensation legislation an injury has long been understood in Australia to be a sudden or identifiable physiological change including a change internal to the body (see, Kennedy Cleaning Services Pty Ltd v Petkoska per Gleeson CJ and Kirby J at [35]-[36]).”[30]
[29] [2006] FCAFC 27; (2006) 149 FCR 522; 227 ALR 75; 42 AAR 335; 90 ALD 31; Spender, Branson and Nicholson JJ
[30] [2006] FCAFC 27; (2006) 149 FCR 522; 227 ALR 75; 42 AAR 335; 90 ALD 31 at [35]; 531; 84; 344; 40
The case of Kennedy Cleaning Services Pty Limited v Petkoska,[31] to which Branson J referred in this passage, arose in these circumstances. Mrs Petkoska had, for some years, suffered from rheumatic mitral valve disease. Her employment was not a contributing factor to her having contracted that disease or to its aggravation or acceleration. One day, she collapsed at work. As a result of a paroxysm of atrial fibrillation, a blood clot had formed in the left atrium and a piece had broken off. That piece had travelled directly to the left temporo-parietal region of her brain and immediately rendered her incapable of speech and incapacitated for work. A subsequent CT scan showed a lesion in that area of Mrs Petkoska’s brain. As Gleeson CJ and Kirby J said in their joint judgment, “… it is appropriate to conclude that the word ‘lesion’ in the medical reports here meant a sudden change or disturbance to the physiological state of …” Mrs Petkoska.[32]
[31] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting
[32] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [8]; 289; 628-629
Mrs Petkoska claimed compensation under the Workers’ Compensation Act 1951 (ACT) (ACT Act). Where a worker suffered personal injury arising out of or in the course of employment, the employer was liable to pay compensation. “Injury” had been defined in the ACT Act to mean “any physical or mental injury” and to include “aggravation, acceleration or recurrence of pre-existing disease”. “Disease” was defined to include “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development” and “the aggravation, acceleration or recurrence of a pre-existing disease”. Where a worker’s employment was a contributing factor to his or her contracting a disease or suffering an aggravation, acceleration or recurrence of pre-existing disease, s 9(2)(c) provided that the contraction or the aggravation, acceleration or recurrence were deemed to be a personal injury arising out of the employment of the worker.
On appeal, the employer had argued that the ACT Act had established mutually exclusive classifications of claims for compensation for an “injury” and those for compensation for a “disease”. This was rejected by the High Court. In their joint judgment in Kennedy Cleaning Services Pty Limited v Petkoska, Gleeson CJ and Kirby J underlined previous authority to the effect that:
“… the inclusion in the definition of ‘injury’ in s 6(1) of the Act of ‘mental injury’ makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.
Secondly, the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case. All the members of this Court in the majority in Zickar [Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310] referred with approval to the remarks of Murphy J in McIntosh [McIntosh ……..[1991] 2 VR 253] with whom both Crockett and Cummins JJ agreed … In McIntosh, the Court was considering a case involving a sudden rupture of blood vessels and a consequent cerebral haemorrhage arising from arteriovenous malformation. It was called upon to decide whether such a rupture could amount to a ‘physical injury’ within the Accident Compensation Act 1985 (Vict.). In the passage specifically approved in the joint reasons in Zickar …, this is what Murphy J said:
“If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from a defect, disorder or morbid condition, which enables it to occur.’”[33]
[33] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [35]-[36]; 298-299; 636
Distinguishing between an injury (physical or mental) and a disease
In order to determine whether a person has suffered an injury or a disease, close regard must be had to the evidence. After reviewing some of the previous authorities, Gleeson CJ and Kirby J said in Kennedy Cleaning Services Pty Limited v Petkoska:
“… All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and the incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment …. If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met. …
The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as an alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.”[34]
DID MRS BUI SUFFER AN INJURY BETWEEN 16 AND 26 APRIL 2012?
[34] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [39]-[40]; 300-301; 637 (citations omitted)
The evidence
Dr Cooray has been Ms Bui’s psychiatrist since 29 April 2010[35] after her general practitioner, Dr Patrick, referred her.[36] Professor Mendelson and Dr Hollander, who is also a Consultant Psychiatrist, have both interviewed Ms Bui in the context of reporting on her fitness to return to work on 23 May 2011 and in connection with APC’s consideration of her claim for compensation.
[35] Exhibit C at 1
[36] Exhibit C
Dr Hollander
I will begin with Ms Bui’s condition when she returned to work. That was addressed by Dr Hollander in his report dated 7 March 2011. APC had asked him to assess Ms Bui with respect to her continued fitness for duty in her role as a Postal Manager, Grade 3 position. Dr Hollander reported that Ms Bui had suffered from “Major Depressive Disorder – Severe – with Mood Congruent Psychotic Features” but that it was now in full remission. She was medically fit to meet the inherent requirements of work as a Postal Manager Grade 3 although Dr Hollander noted that:
“… it would be helpful to implement a return to work through a graduated increase in hours over approximately a one month period of time. Additionally, it would be helpful to provide ongoing support of Ms. Bui to attend her medical appointments and providing immediate feedback to her should there be any evidence of recurrent symptomatology developing in the workplace, as reviewed in the recommendations below.”[37]
[37] T documents; T42 at 232
Apart from a graduated return to work over a period of one month, during which she increased her hours, Dr Hollander said that no other restrictions were indicated.[38] She was medically fit to undertake instructions from her Area Manager in the workplace and redeployment was not indicated on the basis of her medical condition. Dr Hollander recommended that Ms Bui and her treating psychiatrist develop a relapse prevention plan identifying early warning signs or markers and a series of interventions to be implemented should they occur. Her work colleagues might assist her in identifying any early signs of relapse, Dr Hollander suggested. Potentially, those signs might manifest themselves as
re-emerging anxiety, tearfulness or periods of distractibility. Ms Bui should attend her treating psychiatrist on a regular basis for ongoing treatment, management and monitoring. APC should review her progress and ability to cope with work duties three months after she has resumed work.[39]
[38] T documents; T42 at 232
[39] T documents; T42 at 234-235
Dr Hollander noted:
“… Potential factors which may limit her prognosis include the protracted and multiple legal matters between Ms. Bui and her employer, and the potential for any residual feelings arising from that process to impact upon her health during the occupational rehabilitation process. However, Ms Bui reports that her previous supervisor has changed, and she presents with strong motivation to succeed in the return to work process, and to remain engaged in assertive treatment to maintain her health.”[40]
[40] T documents; T42 at 235
I will come to Ms Bui’s return to the workplace and her views of what occurred. For the moment, I will refer to the medical evidence regarding her condition following events in the workplace in the period from 16 to 26 April 2012. At the time, Dr Patrick was her General Practitioner and Dr Cooray her treating psychiatrist.
Ms Bui’s history as recorded in the clinical notes of Dr Patrick and Dr Cooray
Ms Bui consulted Dr Patrick about various issues dating from July 2003. His notes begin references to medications he prescribed in July 2003 and reflect prescriptions issued on 2 January 2013. The medications he has prescribed have included Temazepam, Luvox, Efexor-XR, Amoxil and Risperdal in various dosages. He hand wrote a note on 8 October 2010 that Ms Bui had received a letter from APC regarding her returning to work. Other consultations followed. His handwritten notes show that he referred Ms Bui to Dr Cooray on 20 March 2011. I have set out passages from his clinical notes that relate to issues relevant to this matter. They are reproduced in the table at [32] below in bold font to distinguish them from Dr Cooray’s notes.
Dr Cooray’s notes suggest that Ms Bui first saw her on 29 April 2010 with further consultations on 19 May 2010 and 26 July 2010. Dr Cooray’s note of the consultation on 26 July 2010 stated that Ms Bui had decreased sleep, was not tired, increased energy, racing thoughts and no anxiety. In answer to Ms McMahon, Dr Cooray said that she had never seen Ms Bui like this either before or after that day. At that time, Ms Bui was not working.
Dr Cooray wrote an open letter dated 23 September 2011 reporting that she had seen Ms Bui on a regular basis leading up to her RTW. That was four months or so after Ms Bui returned to work on 23 May 2011. Dr Cooray set out her assessment of Ms Bui’s mental state concluding that she was mentally fit to carry out the duties of Post Manager Level 3 and was managing the stressors of the RTW well. The substance of that letter appears in the table set out in the following paragraph. Dr Cooray’s notes do not record a further consultation until 15 December 2011. I have set out Dr Cooray’s notes of Ms Bui’s attendances in the following months beginning with that on 15 December 2011 and ending with that on 21 November 2014. Dr Cooray has not seen Ms Bui since that last consultation.
Interposed with Dr Cooray’s notes are letters she wrote to Ms Bui’s General Practitioner, Dr Patrick, and to APC as well as references to evidence she gave at the hearing:
Date
Note/Letter
23 September 2011
(Dr Cooray)I am the treating Psychiatrist for Ms. Nina Bui.
I have been seeing her on a regular basis for 3 months up to her Return to Work Programme.
She is maintaining her mental wellbeing very well through ongoing medications and regular counselling sessions.
She is mentally fit enough to carry out Post Manager Level 3.
She is managing the stressors associated with the Return to Work Programme well.
Another consideration that may need to be taken into account relating to her work would be the fact that she is on Psychotropic medications. These medications can cause a constant dry mouth, therefore she may need to drink water to alleviate that problem. This can lead to Ms. Bui needing to use the rest room more than usual.
I hope you can consider this issue in her favour and provide her the opportunity to use the rest room as needed.[41]15 December 2011
Effexor 150mg morn.
struggling at work6 January 2012
(Dr Patrick)Prescriptions added: KEFLEX CAPSULE 500mg 1 b.d.. c.c.
…19 January 2012
struggle continues
19 January 2012
Letter from Dr Cooray to Dr PatrickThis is an update of Nina Bui’s current mental state.
As you are aware, she is in the process of returning to work. She struggles throughout the process as she feels her work colleagues are unsupportive and do not want her there.
However, her mental state has remained stable over time.
…”[42]16 February 2012
did not attend
5 March 2012
attending work full time.
no issues so far
applying for other jobs
Doing MBA[A letter from RMIT dated 24 June 2011 welcomed Ms Bui back to her studies. A further letter dated 27 March 2012 set out the five subjects she had completed during Semesters 1, 2 and 3 of 2011 and the two subjects for which she was enrolled for Semester 1 of 2012.[43]]
28 March 2012
(Dr Diane Patrick)V. stressed ċ work. Feels under pressure. Having assessment. [illegible]
working v. hard.[44]
…2 April 2012
did not attend
11 April 2012
still struggling at work
given prescription [illegible] 40mg [illegible]14 April 2012
(Dr Patrick)Referral to Dr Cooray
…[45]27 April 2012
Anxious Being harassed at work by assessor.
MC unfit to work on 27/4/12
fit to return on 30/4/12
á [illegible] to 150 [illegible]
[illegible] to continue her work as per normal[46]30 April 2012
- MC 30/4/12-2/5/12 incl
- still anxious & not feeling fit enough to face the harassment of the assessor2 May 2012
struggling at work
not going to work
not sleeping
á anxiety
risperidone 1 mg [illegible]“So she didn’t make any complaints, specific complaints to you at that time about why she wasn’t coping? --- Yes. If – yes, she mentioned, like, you know, that she wasn’t getting enough support from the, you know, the people that she worked with. And she was feeling that she was not wanted there, kind of, you know, kind of feeling. And, you know, even anxiety and that trouble.
Who wasn’t she getting the support from and where have you recorded that in your notes? --- Yes. No. I – this is all – I don’t have a record in the notes but that’s what she was referring me to, regarding her struggles she had at work at that point of time.”[47]
“… [O]ther than what you’ve recorded in your notes on 2 May that she wasn’t sleeping and she had increased anxiety, were there any other symptoms that she reported to you at that time? --- I can’t remember really.
Would you have recorded - - -? --- If there’s significant, you know, symptoms, then I would have been, you know, written it in my notes.
Okay. Did you do a mental state examination at that time? --- Yes. Yes. Every time we do that.
…
Okay. So where in your notes on 2 May were your observations of her mental state? --- Yes, that’s what it is, you know, decreased anxiety and, you know, what she presented with.”[48]
9 May 2012
ready to back to work
sleeping well
â anxious
[illegible] 225mg [illegible]
risperidone 1mg [illegible]Dr Cooray gave Ms Bui a clearance medical certificate to return to work.[49]
22 May 2012
Anxiety/Depression relates to assessment program
- Script for Temaze. One Risperdal
MC 22/5/12 – 24/5/12
Return to work on 25/5/1228 May 2012
Struggling
â sleep
á anxiety
MC for 3 days risperidone 2mg [illegible]“And did she talk to you about any events that had caused these symptoms at that time? --- Any events?
Yes? --- No. Again, if there was any specific events, then I would have mentioned that. I know she is referring to what – you know, something that has happened – what the Australia Post do and all that, but according to my recollection and my notes, and that is the report of 2013.
Okay. And that was the first time she raised those issues with you when she requested that report from you in 2013? --- Yes. Yes, I think so. Otherwise it should have been – I would have mentioned that in the notes.”[50]20 June 2012
RISPERDAL TABLET 1mg dosage changed from 1 nocte Oral – Swallowed to 1½ nocte Oral – Swallowed BP …
9 July 2012
doing well
á rusoeruidibe 1½ [illegible]13 July 2012
States that she is still being harassed at work. Minor error has lead [sic] to staff at another post office losing their bonus. MC 13/07/12-16/07/12. incl
25 July 2012
Actions:
Prescriptions printed:
Efexor-XR CAPSULE 150mg 1 daily cc
Efexor-XR CAPSULE 75mg 1 daily cc
RISPERDAL TABLET 1mg 1 ½ nocte
Stressed at work. Still feeling harassed. MC 25/07/12 and 26/07/12. Return to work on 27/7/1227 July 2012
Could not sleep. Unable to attend work. MC 27/07/12.
1 August 2012
M/C for 3 days
6 August 2012
Stressed. Australia Post has issued a work assessment. MC 06/08/12-10/08/12 incl ACTIONS: RISPERDAL TABLET 1mg dosage changed from 1½ nocte Oral – Swallowed to 3 nocte Oral – Swallowed Return to work on 13/08/12.
20 August 2012
not doing well
had to resign from work21 August 2012
Has been demoted. Unable to face work MC 20/08/12-03/09/12 incl ACTIONS:
RISPERDAL TABLET 1mg dosage changed from 3 nocte Oral – Swallowed to 2 nocte Oral – Swallowed
RISPERDAL TABLET 1mg changed to RISPERDAL TABLET 2mg
RISPERDAL TABLET 2mg dosage changed from 2 nocte Oral – Swallowed to 1 nocte oral – Swallowed
EFEXOR-XR CAPSULE 150mg dosage changed from 1 daily c.c. Oral – Swallowed to 2 daily c.c. Oral – Swallowed
EFEXOR-XR CAPSULE 75mg ceased.
Prescriptions printed:
EFEXOR–XR CAPSULE 150mg 2 daily c.c.
RISPERDAL TABLET 2mg 1 nocte3 September 2012
resigned from work
so sad about that
? â [illegible]1 October 2012
feeling OK
Effexor 150mg [illegible]
risperidone 1mg [illegible]1 November 2012
Tension type headache: Examination:
…
EFEXOR-XR CAPSULE 150mg dosage changed from 2 daily c.c. Oral – Swallowed
…5 November 2012
doing well
? Law suit against Australia Post
prescriptions given – on [illegible] 150mg [illegible]
risperidone [illegible]6 December 2012
Stressed about Australia Post and case. Felt threatened by a phone-call from Australia Post lawyer.
2 January 2013
Prescriptions printed:
EFEXOR-XR CAPSULE 150mg 1 daily c.c.
RISPERDAL TABLET 2mg 1 nocte
…7 January 2013
did not attend
12 January 2013
Letter from Dr Cooray to Dr PatrickThis is an update of Nina Bui’s current mental state.
She has struggled for most of last year, with her effort to re-instate back to work.
However, she had managed the stressors adequately throughout that period.
I last saw her on the 1st of October 2012.
She is on venlafaxine-XR 150 mane.
Risperidone 1mg noct.[51]25 January 2013
feeling anxious
over court case28 February 2013
Letter from Dr Cooray to Dr PatrickThis is an update of Nina Bui’s current mental state.
Her mental state has been stable over the last few months however she is currently feeling anxious again, mainly triggered by the events related to the upcoming court case.
…[52]25 March 2013
still feeling anxious
court case on 17/4/13
given prescriptions for
[illegible] 150mg x 30 x 2
risperidone 1mg x 60 x 222 April 2013
did not attend
19 June 2013
did not attend
10 July 2013
I saw Mrs Bui in April 2012. She stated that she felt harassed at work. An assessor had been assigned to monitor her work. She stated that she felt intimidated as he sat extremely close to her. She states that his knees touched her and she could feel his breath on the back of her neck. She states that she asked him on more than one occasion to move away, but he refused. These working conditions aggravated her anxiety and depression to the extent that the doses of her medication had to be increased and another medication added. She finally resigned in August 2012 due to ill health.[53]
15 July 2013
going to AAT (… [illegible])
wants to sue Australia Post.
tries to get back to work
due to á stress at work place could not manage to keep up with the work.
She is not having anxious, depression when not at work.
Venlafaxine 300mg [illegible]
risperidone 1 mg [illegible]
Need a [illegible]12 August 2013
send a letter to tribunal.
planning to go to Sydney.
all the family is now in Sydney
prescriptions given for
Venlafaxine 300mg x 56 x 5
risperidone 1mg x 60 x 212 August 2013
I am the treating Psychiatrist for Ms Nina Bui.
She is not mentally well at present, thus not being able to prepare for the tribunal proceedings.
I would appreciate if you can consider delaying these proceedings until she is well.[54]12 August 2013
Letter from Dr Cooray addressed To Whom It May Concern
13 August 2013I am the treating Psychiatrist for Ms Nina Bui.
She is not mentally well at present, thus not being able to prepare for the tribunal proceedings.
I would appreciate if you can consider delaying these proceedings until she is well.[55]Letters in same terms as above.
13 August 2013
Letter from Dr Cooray addressed To Whom It May ConcernI am the treating Psychiatrist for Ms Nina Bui.
She tried to go back to work in 2012.
Ms Bui said that she felt harassed by her assessor who had been assigned to monitor her capacity to work. She said he sat extremely close to her and she could feel his breath on the back of her neck. These conditions under which she had to perform increased her anxiety and depression which led to her increasing her medications. She finally resigned in August 2012 as she could not cope any longer.[56]2 September 2013
moving to Sydney today
enough prescriptions
á risperidone 2mg [illegible]30 September 2013
not going well.
á anxiety over court proceedings
provide a letter6 November 2013
did not attend
20 November 2013
á anxiety
need a report12 February 2014
no change in mental state
want to do things without a Lawyer
but cannot go anywhere without going through proper channels
no prescriptions given17 March 2014
mentally stable
no prescriptions given6 June 2014
mentally stable
hearing on 21st July
(150 + 75) 30 x 2 → venlufaxene – x [illegible]
225mg [illegible]60 x 2 ← risperidone 1mg [illegible]
30 June 2014
teary + angry with lawyers wants to fight the injustice.
á risperidone 2mg [illegible]17 July 2014
Hearing due on Monday
Actions:
Prescriptions added: VALIUM TABLET 5mg 1b.d. p.r.n.
RISPERDAL TABLET 2mg changed to RISPERDAL TABLET 1mg
RISPERDAL TABLET 1mg dosage changed from 1 nocte Oral – Swallowed to 2 nocte Oral – Swallowed
EFEXOR-XR SR CAPSULE 150mg dosage changed from 1 daily c.c. Oral – Swallowed to 2 daily c.c. Oral – Swallowed
Anxiety and panic attacks. Unable to attend Hearing MC 21/07/14-25/07/14 incl.18 July 2014
still angry with the situation.
tribunal – next week22 August 2014
feeling better today
22 August 2014
Prescriptions printed:
TEMAZE TABLET 10mg 1 nocte p.r.n.
Insomnia …21 November 2014
still angry ċ Australia Post
tribunal – postponed or cancelled
not sleeping
[illegible]risperidone 2mg [illegible][illegible] 10mg [illegible]
[41] Exhibit B at Annexure NB5
[42] Exhibit 5
[43] Exhibit D
[44] Exhibit 2
[45] Exhibit 2
[46] Exhibit 2
[47] Transcript at 219
[48] Transcript at 220-221
[49] Transcript at 219
[50] Transcript at 219-220
[51] Exhibit 5
[52] Exhibit 3
[53] Exbibit B; Annexure NB5
[54] Exhibit 4
[55] Exhibit 4
[56] Exhibit 4
Dr Cooray
Dr Cooray wrote a report dated 12 January 2014 in which she set out Ms Bui’s history prior to her return to work in May 2011. When she first saw her, Dr Cooray said in her oral evidence, Ms Bui was in remission and free from psychiatric symptoms but in need of longer term management. In relation to Ms Bui’s history after her return to work, Dr Cooray wrote:
“There was a return to work plan on May 2011. She struggled throughout the return to work plan process, as she felt that her supervisors and work colleagues are unsupportive and do not want her there. However her mental state remained stable over the time, with occasional anxiety.
She remained on venlafaxine 150mg/day. She tried hard to cope with the harassment she felt during the process of return to work, and I have provided letters from time to time to the employer requesting more assistance to help her stay in her job (i.e. ask to allow her toilet breaks as she drinks water frequently due to dry mouth caused by her medications, and also her anxiety can cause lack of control over bladder functions).
I have also provided medical certificates for Nina Bui, as she seems to be struggling at work mainly with her supervisors, and her mental state is deteriorating.
I increased her medications at that time (venlafaxine 225mg/day), and also added resperidone 1mg/ to prevent any psychotic symptoms as she developed previously.
Her medications have gone up in the dosage, due to worsening of symptoms. Finally, she resigned from her work due to ill health.
Her mental issues could be managed on relatively low doses of medications since the cessation of work.
Since then I continued to see her on a regular basis. Her mental state was stable and she functions well. In the meantime all her family moved to Sydney. She now stays with a friend while she goes through her legal proceedings.”[57]
[57] Exhibit C
During cross-examination, Ms McMahon asked Dr Cooray to comment upon Professor Mendelson’s opinion that Ms Bui was suffering from Dysthymic Disorder and that, in late 2007, she had suffered an episode of Major Depression with mood congruent psychotic symptoms. Ms McMahon told Dr Cooray that Professor Mendelson was also of the view that her psychotic symptoms and severe depression had resolved with treatment but that she had continued to suffer from fluctuating emotional symptoms and continued to feel resentment and grievance after her return to work in 2011. The following exchange took place between Ms McMahon and Dr Cooray:
“… Do you agree or disagree with that? --- I – the reason – about the resentment, I would say she has a lack of confidence that people would want her to be there. And I tried to correct that, you know, in the sessions and trying to see the work in a positive frame of mind, but it was very hard for her. All that resentment is lack of confidence that she can survive in that environment. I would say that.
But she has repeatedly described her feelings towards Australia Post to you as anger or being angry with them? --- She was, yes. When she can’t make it and she was very angry, yes. She was trying hard for a while to reinstate back at work.
And when she wasn’t able to reinstate she was angry about that? --- Yes.
And he expressed the opinion that if there had been any specific exacerbation of her clinical symptoms in late April 2012, that those symptoms or the increase in symptoms had been transient, as you had said she was ready to return to work, had decreased anxiety and was sleeping well on 9 May 2012? --- Yes.
So would you agree with that? --- I agree, yes.
Yes. And he goes on to say that:
The dysthymic disorder means that the depressive symptoms with [sic] fluctuate either in response to stressful life events or spontaneously.
Do you agree with that? --- Yes, but by the time she came to me and how she presented to me, my diagnosis was major depressive disorder. It’s a little bit different dysthymic disorder.
I think he – as I understand his report, he conceded that there was an episode of major depressive disorder, and that those symptoms had been treated and responded to treatment? --- Yes. Yes.
Because, as I understood your evidence, when you started to talk to Mrs Bui you said in 2010 she was in remission? --- Yes.
So she didn’t have a major depressive disorder at that time? --- Not a major depressive disorder or even dysthymia for that matter. Dysthymia is a condition where you persistently have depressive symptoms at a low grade. Not at the level that you stop functioning but at a low grade. But I did not see that. When she is good, she is really good.
But she was being maintained on a dose throughout the whole period of time of Effexor or Luvox antidepressant? --- Yes. Yes.
Yes. Okay. And naturally that’s what they’re given to treat the depressive symptoms. Is that correct? --- The depressive symptoms, yes.
Yes? --- And even when she is doing well, when her mental state is good, we still – I still want to keep her on antidepressants to, you know, maintain her wellbeing in case she has any depressive symptoms, as a preventative measure.
Yes. And the same with Risperdal, that’s given to prevent any psychotic symptoms. Is that correct? --- No. Risperidone has been reduced when she started working. That’s the idea, to prevent the going down the psychotic pathway as she did in the past but with anxiety going down, she doesn’t need to continue Risperidone as antidepressant.
And that’s when you’ve told the tribunal you decreased her medication, the Risperidone? --- Yes, that’s right.”[58]
[58] Transcript at 222-224
Dr Patrick
In examination, Dr Patrick said that Ms Bui had been stable in the period before 27 April 2012. He knew that the assessor’s sitting too close to her would aggravate the trauma she had experienced when she first travelled to Australia. That trauma would mean that she would be more affected by the assessor’s sitting too close than other people would. Dr Patrick agreed with Ms Bui’s proposition that he had slowly increased her medication from April 2012 until her resignation in August 2012.
In cross-examination, Dr Patrick was asked whether Ms Bui had consulted him for anything related to her psychiatric condition between 23 May 2011 and 14 April 2012. Dr Patrick noted that, on 10 September 2011, her Effexor had been increased by two as a result of her increased anxiety or depression. He had not recorded the particular circumstances that had led to that but it is possible that Dr Cooray had stated that it should be increased and he had given her the script. He had not changed the dose but, as Ms Bui was only on 150mg in April 2012, the psychiatrist must have changed it. In general, Dr Cooray was responsible for adjusting Ms Bui’s medication. Dr Patrick said that he had increased Ms Bui’s medication on 27 April 2012, though. He had done so because Ms Bui was feeling very anxious and harassed at that stage.
The following exchange took place between Ms McMahon and Dr Patrick:
“… So on 27 April the only record you’ve got in your notes was that she told you she was being harassed at work by an assessor that sits too close, is that correct? --- Yes, correct.
She didn’t tell you any more about it? --- She was – he – hang on, that’s basically it, sitting too close, sitting very close to her, et cetera.
Okay, Well, she didn’t say to you and you didn’t record that he was touching her? --- Not there but in my letter later, when was this letter ---
Your letter is 10 July? --- Yes, 2013.
2013? --- Yes.
Yes. When did she tell you that he was – his knee touched hers? --- Well, the only – the only record I’ve got on 10 July – I haven’t got a record of that earlier, according to my notes. So I can’t remember being told that earlier and the notes don’t say that.
So do you think that Mrs Bui first told you that on 10 July 2013 when she requested that you provide a report to her? --- It’s possible she had added more detail about it for the report being accurate. I mean I didn’t write all – I don’t, in my notes, write every event about the harassment, is sitting too – just sitting too close is all I’ve put.
Yes, But you’ve given evidence to Mrs Bui that you were aware of her past sexual event? --- Yes.
And that you’ve given evidence to this tribunal, therefore you knew that that would make her feel more anxious? --- Yes.
So it would have been a significant thing for you to record if she reported sexual harassment or being physically touched? --- Well, sitting too close – a male sitting too close to would make her feel much more anxious on the past history.
How close was he sitting? --- Well, at the same desk, from memory, and closely at the same desk, that’s all I can remember.
But she didn’t tell you how close? --- Well, I haven’t recorded how close. Maybe she did tell me but I can’t – I have no records of how close. Too close.”[59]
[59] Transcript at 201
Dr Patrick agreed with Ms McMahon that Ms Bui has been anxious since she first consulted him in 2006. He had given her a Medical Certificate on 27 April 2012 when she had reported that she was anxious and being harassed at work by an assessor. No other symptoms were recorded in his notes. As for her work, he had advised her to continue to work as normal. He had given her a certificate for 27 April 2012 but she returned on 30 April 2012 saying that she could not go back to work. On that day, Ms Bui told him that she was still anxious. Dr Patrick did not record any other symptoms. He next saw her on 22 May 2012. By that time, Dr Cooray had returned her to work on 10 May 2012 but Dr Patrick did not have a record of that in his notes. Dr Patrick was asked whether Ms Bui had reported any further incidents at work when she consulted him on 22 May 2012. He replied:
“No, she just gave us the impression that the – the assessment program and the constant meetings were causing her to be, you know, more anxious and feeling depressed.
Because she actually hadn’t been under any assessment since 26 April 2012, so you weren’t actually aware of that? --- No, I can only go on what the patient – the (indistinct) patient, yes.”[60]
[60] Transcript at 202-203
Dr Patrick said that he did not agree with the assessment written by Dr Cooray in her letter dated 12 January 2013 to the effect that Ms Bui had managed her stresses adequately throughout 2012. He pointed to his note on 2 August 2012 that she had been demoted and unable to face work. He did not have any note of Ms Bui’s having settled her case and resigning her employment.
Dr Patrick knew that Ms Bui’s husband worked in Sydney but he did not know any details of where Mrs Bui lived or whether she had moved to Sydney where her husband worked or whether she had returned to Victoria. He agreed with Ms McMahon’s proposition that Ms Bui only ever talked to him about her employment. On 22 August 2014, Ms Bui had consulted him about insomnia and saw him again on 21 November 2014. She did not report any psychiatric symptoms to him at all at the time.
Dr Patrick said that Risperdal is an antipsychotic drug. Ms Bui had not reported any psychotic symptoms to him but more those of chronic depression. She becomes depressed and then has psychotic symptoms. If the depression is well-controlled, the psychotic symptoms are fewer. Ms Bui was very stressed. Risperdal was prescribed as a preventative drug to stop Ms Bui’s suffering from psychotic episodes but also for her severe anxiety.
In April 2012, Dr Patrick agreed, he had recorded only anxiety as Ms Bui’s symptoms. Ms McMahon put to him that Dr Cooray had said on 9 May 2012 that Ms Bui was sleeping well, her anxiety had decreased and she was ready to return to work. In light of that, she asked Dr Patrick whether he thought that Ms Bui’s anxiety on 27 or 30 April 2012 was transient. Dr Patrick replied that her anxiety was ongoing and so it was not transient. He agreed, though, that she had not seen him in the period from 16 to 26 April 2012 and had not consulted him further until 22 May 2012 when he added Risperdal to her medication.
Professor Mendelson
Professor Mendelson had initially examined Ms Bui in July 2008 when he described her as presenting as resentful and aggrieved when referring to her former supervisor. She had spoken of feeling humiliated and embarrassed in front of her work colleagues.[61] When he next saw her on 29 August 2013:
[61] Professor Mendelson’s earlier report is dated 16 July 2008: T documents; T42 at 242
“… she was again resentful and aggrieved when she referred to the manager she said had been ‘sent to observe me’.
While Mrs Bui appeared somewhat tense at the consultation on 29 August 2013, there was no emotional lability or lowering of mood.
…
She continued to experience fluctuating emotional symptoms after returning to work with Australia Post in May 2011. Whether or not the assessment process to which she was subjected after she resumed work was reasonable is not a medical question.
In my view Mrs Bui had continued to feel resentment and a sense of grievance towards Australia Post after she returned to work in May 2011, due to her earlier experiences, and this was amplified by being subject to the assessment process.
In this situation Mrs Bui lodged a further compensation claim for alleged exacerbation of depression and anxiety, and attributed this to the behaviour of the manager who was her assessor at the workplace.
If there had been any specific exacerbation of clinical symptoms in late April 2012 this had been very transient, given that Dr Cooray wrote in her clinical notes on 9 May 2012 that Mrs Bui was ready to return to work and that she was sleeping well. Unfortunately Dr Cooray’s notes do not contain adequate detail concerning any specific symptoms described by Mrs Bui and do not contain any observations on mental status examination.
At the time of my examination of Mrs Bui on 29 August 2013 I did not consider that there was any indication of clinically significant depression or anxiety that caused loss of work capacity. In my opinion she is not precluded by any psychiatric factors from seeking gainful employment for which she is qualified by her training and work experience.
… I have stated that in my opinion Mrs Bui has chronic Dysthymic Disorder as discussed also in my report dated 16 July 2008. The prognosis is for the depressive symptoms and the associated symptoms of anxiety to fluctuate. Such fluctuations could occur in response to stressful life events or spontaneously. The presence of Dysthymic Disorder indicates a vulnerability to Major Depressive Episodes.”[62]
[62] Exhibit 8 at 12-13
Professor Mendelson explained that the expression “Dysthymic Disorder” describes a person who might have fluctuations in mood but those fluctuations are confined to degrees of severity of depression rather than being elated or hyper-manic.[63] He explained that the fact that a person is suffering from a mental disorder does not lead to the conclusion that the person is unable to work. Severe exacerbations may require periods of sick leave but that is not a reason for not employing the person. He went on to explain:
“… [T]here was no evidence of any abnormality that would indicate to me that Mrs Bui was experiencing clinically significant symptoms in terms of psychiatric impairment that would prevent her from working. I did make the point in my reports that patients who have a dysthymic disorder can at times have a major depressive episode. During these periods, as I said earlier, they might require time off work and to be on sick leave. But that in itself, in my view, does not indicate that they are incapable of working. I also did refer to the opinion of the treating psychiatrist. … [O]n 9 May 2012, Dr Cooray considered that Mrs Bui was ready to resume work. But Mrs Bui apparently decided not to do so, and then resigned from Australia Post. So, again, looking at the opinion of the treating psychiatrist, I think it’s consistent with the view that the underlying chronic dysthymic disorder was not a cause of work incapacity but that there were periods when the depressive symptoms became more marked, either in response to environmental stresses or because of the natural history of the condition, and at those times a period of work absence, sick leave, perhaps more intensive treatment was indicated.”[64]
[63] Transcript at 315
[64] Transcript at 316
Professor Mendelson went on to consider the nature and cause of Mrs Bui’s response saying that he had not been provided with an independent circumstance report in relation to events at Ms Bui’s work during April 2012. Therefore, he said, he was:
“… not able to comment whether or not there appeared to have been a specific event or stressor that could have been considered as causing clinically significant exacerbation of Mrs Bui’s symptoms of depression or anxiety.
In my view the reported exacerbation of symptoms could have been motivated by her resentment and sense of grievance towards Australia Post that was related both to events prior to and during April 2006, and since she resumed work in May 2011.
As noted above, however, by 9 May 2012 Dr Cooray considered that Mrs Bui was ‘ready’ to resume work but Mrs Bui apparently decided not to do so and resigned from Australia Post later that year.
I have also stated that in my opinion when I examined Mrs Bui last week there was no indication of loss of work capacity due to her current emotional symptoms or psychiatric impairment.”[65]
[65] Exhibit 8 at 13-14
In cross-examination, Ms Bui put to Professor Mendelson that Dr Hollander had examined her in 2011 and written a report dated 7 March 2011. That was after Professor Mendelson had first seen her in 2006 and seen her on the second and last occasion in 2013. Dr Hollander had examined her and found her ready to return to work and not continuing to feel resentment to APC. How could Professor Mendelson contradict Dr Hollander’s opinion was the tenor of her questioning of him. He replied:
“… [W]hen Dr Hollander examined her in March. I mean, as he stated in his report – I do not recall the date he examined Mrs Bui, but in March 2011 he considered that at that time she did not appear to be, as I would put it, aggrieved or resentful about what happened earlier, and she was ready to go back to work which she did in May 2011. There was subsequent, as she described, there was too many problems and then she eventually stopped work and resigned from Australia Post. Now, when I examined her in August 2013 I certainly formed the opinion that the earlier events prior to the return to work in 2011 were still a factor that were influencing her attitude and emotions towards Australia Post in the sense of ongoing sense of grievance and resentment. Now, it well might be that prior to returning to work in May 2011 these feelings were not apparent to Dr Hollander, but I don’t think that after what had happened subsequent to her return to work one can say that Mrs Bui was entirely able to forget the earlier events and that they had no role to play in influencing her attitude towards Australia Post. So this is why I would disagree with Dr Hollander. That, I mean, it well may be that in 2011 she did not appear to be resentful and aggrieved before returning to work but she certainly was when I examined her in August 2013, and in my view there was a cumulative effect of the earlier experiences as well as what happened after she resumed work in May 2011.”[66]
[66] Transcript at 312-313
Did Mrs Bui suffer an injury between 16 and 26 April 2012?
The evidence of Dr Hollander, who assessed Ms Bui’s fitness to return to work as a Postal Manager, Grade 3, regarding her fitness to return to work in May 2011 is not contradicted by the other medical evidence and nor is the diagnosis of her condition before that date. He was of the opinion that she had suffered from Major Depressive Disorder – Severe – with Mood Congruent Psychotic features but, when he saw her, that condition was in remission. His opinion is consistent with that of Dr Cooray who saw Ms Bui some time later but before she returned to work with APC on 23 May 2011. In light of those opinions, I find that Ms Bui had previously suffered from Major Depressive Disorder – Severe – with Mood Congruent Psychotic Symptoms but that she was in remission when she returned to work.
I also find that Ms Bui has not suffered from Major Depressive Disorder – Severe – with Mood Congruent Psychotic Symptoms since she returned to work. That finding is based on the evidence of Professor Mendelson and also that of Dr Cooray. While Dr Cooray noted occasions on which Ms Bui suffered from increased anxiety and others on which she was struggling between 23 May 2011 and her resignation in or about August 2012, she was of the opinion that Ms Bui not suffering a major depressive illness, however described, or experiencing psychotic symptoms.
In relying on the evidence of Professor Mendelson and Dr Cooray, I have looked also the evidence of Dr Patrick. In doing so, I acknowledge that Dr Patrick has been Ms Bui’s General Practitioner for approximately twelve years up until 2014. Up until 28 March 2012, there had been a gap of some months since Ms Bui had consulted Dr Patrick regarding any psychiatric symptoms. His notes show that Ms Bui consulted Dr Diane Patrick on 28 March 2012. That is the first note of her reporting feelings of stress or anxiety to Dr Patrick or other members of his practice. At the time, she had been seeing Dr Cooray and the pattern was one that varied between Ms Bui’s reporting that she was struggling at work to, on 5 March 2012, having no issues while attending work full-time, applying for other jobs and doing an MBA.
That continued to be the pattern in Dr Cooray’s notes with anxiety increasing and decreasing at various times. The pattern with Dr Patrick was one of consistent anxiety from 27 April 2012, which was the day after the end of the closed period with which I am concerned. His notes record her as being anxious about being harassed by her assessor. Dr Patrick found her to be medically unfit for work on that day, which was a Friday, but fit to return on Monday, 30 April 2012. He encouraged her to continue her work as normal. When Ms Bui reported on 30 April 2012 that she was still anxious and not feeling fit enough to face the harassment of the assessor, he gave her a medical certificate for a further three days absence from work. Dr Patrick has not altered her medications at that stage although he did on 22 May 2012 when he gave her a further medical certificate for three days and noted that she would return to work on 25 May 2012. Meanwhile, Dr Cooray had, on 9 May 2012, given Ms Bui a clearance medical certificate to return to work. Dr Patrick’s notes in May, June, July, August, November and December 2012 record anxiety and adjustments to medication.
If taken alone, Dr Patrick’s notes record a pattern of continuing anxiety although it was a pattern that began somewhat uncertainly as he initially gave her only very short periods of sick leave. When read with Dr Cooray’s notes, the symptoms recorded by Dr Patrick become part of the ebbs and flows of Ms Bui’s feelings of anxiety and stress. There are occasions when she is recorded as suffering increased anxiety and given a medical certificate but there are others where she is recorded as being less anxious and fit to return to work. Although Dr Patrick did not consider that Ms Bui had managed her stresses adequately throughout 2012, he did not go so far as to say that she was suffering from a major depressive illness, however described, or experiencing psychotic symptoms.
The pattern of ebbs and flows is one which predates Ms Bui’s return to work. The medications prescribed by Dr Patrick from July 2003 are consistent with that. So too is the letter from Southern Health dated 11 May 2010. It was co-signed by Ms Bui’s Case Manager, Ms Cukierman and her Consultant Psychiatrist, Dr Sanghvi. Ms Bui was referred to the Clayton Community Mental Health Service in February 2008 after presenting with psychotic and depressive symptoms and suicidal ideation. Since then, Ms Bui had consistently presented with no psychotic or acute risks. The letter continued:
“ Nina did continue to periodically experience low mood and anxiety in association with ongoing legal proceedings in relation to her employment issues. Since December of 2009, however, Nina has consistently presented with a stable mental state. She has been alert and focused with bright and reactive affect, euthymic mood and good concentration. She reports good functioning in the home and in the community. There is no evidence to suggest an impairment of her cognitive abilities. Nina reports that she feels well equipped to return to her former work duties and responsibilities. In our opinion she is fit to return to a graduated resumption of full time duties.”[67]
[67] T documents; T28 at 136
On the basis of the pattern of Ms Bui’s complaints made to Dr Patrick and Dr Cooray and their treatment, I find that she suffers from fluctuating periods of anxiety and depression. Professor Mendelson described this as Dysthymic Disorder in which depressive symptoms and associated symptoms of anxiety fluctuate. Whatever name is given to it, in Ms Bui’s case it is a pattern that was apparent before the closed period in April 2012 with which I am concerned and continued in the following months. She continues medication to control her depression and psychotic episodes.
I am not satisfied that episodes of fluctuation resulting in increased anxiety for Ms Bui from time to time have led to her suffering from a condition that amounts to a disturbance of the normal functions of body or mind of the sort that would bring it within the definition of a “disease” as found by Drummond J in Mooi. For the same reasons, I am not satisfied that Ms Bui has suffered a mental injury. She has not suffered any a mental injury for I am not satisfied that, to use the words of Gleeson CJ and Kirby J, she has suffered any sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. Therefore, I am not satisfied that Ms Bui has suffered a mental injury.
In addition, I am not satisfied that those episodes have resulted in an aggravation of any pre-existing disease from which Ms Bui has suffered. As I have found, her symptoms of anxiety and depression have been both worse and better. It is a manifestation of her condition, be it described as Dysthymic Disorder or by some other name. The fluctuations are not an indication of her condition being made worse or better but a manifestation of her condition. In the period following 16 to 26 April 2012, her symptoms of anxiety and depression increased but they were short term and Dr Cooray certified her fit to return to work on 9 May 2012 as did Dr Patrick from 25 May 2012. By 9 July 2012, she was doing well even though that was short lived. Therefore, I am not satisfied that Ms Bui suffered an aggravation of a pre-existing ailment so that it can be said to be a disease as that word is defined in s 5B(1) of the SRC Act.
DECISION
As I am not satisfied that Ms Bui is suffering from a disease and has not suffered a mental injury, I am not satisfied that she has suffered an injury as that word is defined in s 5A of the SRC Act. It follows that there is no need to consider whether events that occurred in the workplace between 16 and 26 April 2012 amounted to “reasonable administrative action”. That consideration would only be relevant if I had concluded that Ms Bui had suffered an injury because a disease, an injury or an aggravation suffered as a result of reasonable administrative action is not regarded as an injury. I am not satisfied that Ms Bui has suffered an injury. Therefore, I affirm the decision of the respondent dated 20 August 2012 affirming its earlier decision dated 4 July 2012 that Ms Bui has suffered neither an injury nor an aggravation of an injury.
I certify that the fifty six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………..............[sgd].........................................
Associate
Dates of Hearing 24 and 25 August 2015; 2 and 3 September 2015
Last Submission received 4 December 2015
Date of Decision 8 March 2016
Representative for the Applicant Self represented
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent Mr D Clarke
Mr P Mentor
Clarke Legal
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