BZMK and Comcare (Compensation) - [2022] AATA 136

BZMK and Comcare (Compensation) [2022] AATA 136 (2 February 2022)
Division:GENERAL DIVISION
File Numbers: 2017/4578, 2017/5514
Re:BZMK
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:2 February 2022
Place:Melbourne

The Tribunal affirms the decisions under review.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – denial of liability for permanent impairment – determination to cease liability for medical expenses and incapacity payments – initial diagnosis of adjustment disorder – whether psychological condition of major depressive disorder was contributed to, to a significant degree, by employment – decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Military Rehabilitation andCompensation Commission v May [2016] HCA 19
Wiegand v Comcare [2002] FCA 1464
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Dr Stewart Fenwick
2 February 2022
BACKGROUND

BZMK has applied to the Tribunal for review of two decisions made in 2017 in respect of an accepted claim for adjustment reaction with mixed emotional features, which was originally approved on 29 October 2014. The claim arises from BZMK’s experience of supervision issues in the workplace, said to last for some years. The matters can be briefly summarised as follows:
(a)2017/4578: by a claim dated 7 December 2016, BZMK sought compensation for a permanent impairment described as ‘Mental – Major Depressive Disorder’ (MDD), citing impaired mental and emotional functioning. The claim was rejected, and this outcome was maintained in a reconsideration decision dated 15 June 2017 (‘permanent impairment decision’). BZMK lodged an application at the Tribunal for review of this decision on 31 July 2017; and
(b)2017/5514: on 15 June 2017 Comcare made a determination that there was no present liability for medical expenses and incapacity payments. This decision was varied in a reconsideration decision dated 17 August 2017 (‘cessation of liability decision’). (The variation related to the calculation of incapacity payments under s 20 rather than s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act)). BZMK applied to the Tribunal for review of this decision by application dated 7 September 2017.
At the time of the decisions under review, BZMK’s condition was diagnosed as Major Depressive Disorder. Comcare determined that BZMK did indeed have a permanent impairment but considered that employment was not the most significant contributing factor because of a history of psychological illness.
Following a twenty-year career in the Royal Australian Air Force (RAAF), BZMK was medically discharged in 2002. She was then appointed to a civilian role in the Department of Defence and, at the time of her original claim, BZMK was performing a technical assessment role in a team responsible for aircraft spare parts. BZMK’s claim was founded upon allegations of harassment and bullying over a period of approximately two years. Her issues came to a head on 23 May 2014 when BZMK spoke to a colleague in an emotional outburst considered out of character, and involving threats of harm to herself and her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BZMK and Comcare (Compensation)

Details

AGLC: BZMK and Comcare (Compensation) [2022] AATA 136
Case: [2022] AATA 136
Decision Date: 2 February 2022

CaseChat Overview and Summary

This matter concerned an appeal by BZMK against Comcare's denial of liability for permanent impairment and the cessation of liability for medical expenses and incapacity payments. The dispute centred on whether BZMK's psychological condition, initially diagnosed as an adjustment disorder, was a major depressive disorder that was contributed to, to a significant degree, by her employment. The case was heard by Stewart Fenwick Dr.

The court was required to determine the nature and extent of BZMK's psychological condition and whether it constituted a major depressive disorder. A key issue was whether this condition was significantly contributed to by her employment, particularly in light of her pre-existing mental health history, which included hospitalisation for an overdose in 1982, consultations for work-related stress in 1999, and ongoing treatment and prescription of antidepressants between 2002 and 2013.

The court considered extensive medical evidence, including reports from various psychiatrists and psychologists. It noted that initial diagnoses of adjustment disorder may have been influenced by limited information regarding BZMK's medical history at the time. The court found that BZMK had been prescribed antidepressant medication almost continuously from the early 2000s to 2013, suggesting a prolonged pattern of use, which some medical experts described as prophylactic. While BZMK's treating doctors, Dr Fotakis and Dr Pomorin, emphasised her capacity to cope well prior to 2014 and attributed her condition to workplace circumstances, the court also acknowledged the opinion of Dr Weissman, who, when presented with a broader medical history, suggested a longstanding depressive condition. The court was satisfied that the cessation of antidepressant medication was likely to reduce BZMK's resilience to stressors.

Ultimately, the court found that the decisions under review were correct and preferable. Accordingly, the Tribunal affirmed Comcare's decisions to deny liability for permanent impairment and to cease liability for medical expenses and incapacity payments.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I set out here a summary of relevant parts of the extensive material lodged in this matter. This provides context for the decisions under review, and evidence at hearing, particularly with respect to BZMK’s medical history. Medical evidence BZMK’s service medical history (Exhibit R2) discloses instances of treatment for mental health issues. The most critical episodes comprise hospitalisation in 1982 after an overdose, consultation over work-related stress issues in 1999, psychiatric treatment, and the prescription of antidepressants in 2001 and 2002. BZMK was diagnosed by two separate psychiatrists with Major Depression, and was treated by a psychiatrist for an extended period. Records of prescription are found in BZMK’s GP medical record (T39 2017/4578, pp 331–333) and a PBS statement. The PBS statement was not formally admitted into evidence but was cited during cross-examination of BZMK. In summary, there are records for the prescription for antidepressants in every year between 2002 and 2013. In early 2005 BZMK was prescribed antidepressants by an RAAF doctor, and discussed her past depression and psychiatric treatment with her GP (T39 2017/4578, pp 261–262). BZMK also consulted her GP about depression in relation to work stress in 2006 and in 2010, relating to a daughter’s medical condition. Upon the incident at work arising in May 2014, Dr Fotakis certified BZMK as unfit for work based on a diagnosis of ‘anxiety, depression secondary to harassment/bullying at work’ (T39 2017/4578, p 414). This appears to have remained the basis for absences later in the year, with further certificates issued, for example, in October 2014 (T25 2017/5514, pp 522–524), and indeed the certificates provided by Dr Fotakis through until BZMK’s separation from employment in 2016. On 14 October 2014 Dr Pomorin issued a letter ‘To whom it may concern’, declaring BZMK unfit for work due to ‘Major Depressive Disorder’ (T25 2017/5514, p 523). Ms Claudina Garcia, psychologist, prepared a report for Comcare, dated 23 September 2014 (T4 2017/5514, pp 30–33) and BZMK consulted Ms Garcia during 2014. Ms Garcia diagnosed ‘Anxiety and Depression’, being at the severe end of the range for both. Her report notes that BZMK informed her about stress migraines in 1999, postnatal depression, and that BZMK stated she took antidepressants ‘on and off for a period of time’. Ms Garcia stated she had insufficient medical material to determine whether BZMK’s condition was an aggravation of a pre-existing condition. Dr Ash Takyar, consultant psychiatrist, prepared a report for Comcare dated 29 September 2014 (T5 2017/5514, pp 34–43). He diagnosed ‘adjustment disorder with mixed anxiety and depressed mood’. Dr Takyar records a history of ‘at least one major depressive episode’, noting that BZMK ‘described a full resolution of symptoms after treatment’. Dr Takyar observed that BZMK was ruminating about feeling helpless and worthless. Dr Peter Farnbach, consultant psychiatrist, prepared three reports during 2015, directed to the Department of Defence, dated 6 January 2015 (T7 2017/5514), 21 August 2015 (T9 2017/5514), and 30 November 2015 (T11 2017/5514). Initially, he agreed with Dr Takyar’s diagnosis, but by the time of his second report BZMK’s condition led Dr Farnbach to diagnose entrenched MDD. Modest gains later in 2015 indicated that her MDD was partially resolved. Throughout, Dr Farnbach notes prominent angry ruminations, and he also notes a preoccupation with the workplace, and concern the employer had a hidden agenda.

Decision

Reasons for decision

Accordingly, I find that the correct and preferable decisions in each of BZMK’s applications is that the decisions under review be affirmed. DECISION The Tribunal affirms the decisions under review.

Ratio Decidendi

Legal Principle Established

The Respondent submits that Dr Chow’s opinion should be preferred, and that this opinion is not ‘illogical’, particularly in light of his interpretation of BZMK’s pre-existing history. Further, BZMK’s ruminations are significantly concerned with the administrative actions noted above. CONSIDERATION The first issue that arises is the nature and extent of BZMK’s condition. I consider that the initial independent diagnoses of adjustment disorder were influenced by the relatively restricted information about BZMK’s medical history available at the time of these diagnoses. I accept that three separate medical experts came to this conclusion but note, for example, that Dr Farnbach records that he had been unable to discuss his diagnosis with BZMK’s treating clinician Dr Pomorin. Put simply, BZMK’s symptoms from May 2014 appeared at this time most explicable by reference to her account of circumstances at work. Equally, the evidence of those practitioners with the most direct relationship with BZMK, Dr Fotakis and Dr Pomorin, appeared to emphasise the view that BZMK had a depressive disorder. There is some lack of precision by Dr Pomorin, partly as his written report postdates his engagement with BZMK by several years. However, Dr Fotakis appeared unambiguous in his opinion that he had been treating BZMK for depression for some time. When Dr Weissman was presented in evidence with a wider picture, particularly as to the prescription of antidepressants, he also expressed a similar view, that is, that BZMK may well have had a longstanding depressive condition. I am satisfied from the evidence overall, that BZMK was prescribed antidepressant medication almost continually from the early 2000s through to 2013. BZMK herself was not able to be specific about her actual use, but the medical record would appear to support the view that there is a persistent and prolonged pattern of use of antidepressant medication. Dr Fotakis described this as a prophylactic measure and stressed, as did Dr Pomorin, that BZMK was asymptomatic and coping well prior to 2014. He also observed that BZMK had largely not been receiving clinical treatment, perhaps bar the engagement of a psychologist in relation to BZMK’s handling of her daughter’s medical condition. Dr Weissman was of the opinion that the prophylactic use of medication was an accepted practice and added that it may occur in cases where depression has resolved. The term prophylactic was not explored at the hearing, but I consider it reasonable to understand it in the ordinary medical sense, that is, a preventive measure particularly in the sense of averting the onset of disease or infection. All of the medical witnesses called by BZMK in this matter demonstrated reluctance to conclude that her condition was a result of anything other than her experiences at work, as described by her. However, there was, I consider, general agreement at the hearing that the cessation of antidepressant medication was likely to lead to a lessening of BZMK’s capacity to withstand the impact of any stressors.