Chugha and Comcare (Compensation)
[2020] AATA 2835
•10 August 2020
Chugha and Comcare (Compensation) [2020] AATA 2835 (10 August 2020)
Division:GENERAL DIVISION
File Number(s): 2018/3047
Re:Kuldip Chugha
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member Ward
Member Durkin
Member Stephan
Date:10 August 2020
Place:Adelaide
1.The Reviewable Decision of the Respondent dated 4 April 2018 is set aside.
2.It is directed that within 14 days of the date of this determination each party may apply to the Tribunal for orders in relation to costs and if not agreed, either party can apply to the Tribunal for the costs to be taxed.
...........................[Sgnd].........................................Member A Ward
CATCHWORDS
Application to cease payments – psychiatric injury – credit in dispute – Facebook and social media – hearing via Microsoft Teams – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975
Safety Rehabilitation and Compensation Act 1988
CASES
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Davies v Nilsen [2016] VSC 557
Foong v Ghaly; Foong v McLellan [2017] NSWDC 303
SECONDARY MATERIALS
COVID-19 Special Measures Practice Direction – Freedom of Information, General and Veterans’ Appeals Divisions
REASONS FOR DECISION
Member Ward
Member Durkin
Member Stephan
10 August 2020
INTRODUCTION
The Applicant, Mr Kuldip Chugha suffered mental injury in the nature of a major depression as a result of workplace bullying and intimidation.
By determination dated 4 September 2013, the Respondent, Comcare, accepted liability for the major depressive disorder pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”).[1] The date of the injury was deemed to be 1 March 2013. The Applicant’s capacity to work as a rehabilitation officer for Comcare was adversely affected and he required extensive psychiatric treatment.
[1] Exhibit 1: T-Documents (“T”), T9/124-125.
On 14 February 2018, the Respondent made a “no present liability” determination that the Applicant was no longer entitled to compensation under ss 16 and 19 of the SRC Act.[2] This was made on the basis that the Applicant’s employment was no longer a significant contributing factor to his condition, resulting in him no longer suffering from an injury as defined in s 5B of the SRC Act (“the first decision”).
[2] T37/261-263.
On 4 April 2018, the Respondent affirmed the first decision, concluding that the Applicant may have contemporaneously had depressive symptomatology but that the 2012/2013 employment factors were no longer contributing to his accepted condition (“the reviewable decision”).[3] On 31 May 2018, the Applicant applied to the Tribunal for a review of that determination.
[3] T41/286-291.
BACKGROUND
This current review does not involve a re-hearing of the accepted claim. However, for clarity it assists to remind oneself of the original circumstances of injury. The Applicant enjoyed his work as a senior rehabilitation consultant. He told doctors that he had a problem when in about 2000 he was advised by his then supervisor that a promotion was imminent, but his supervisor was replaced by a new supervisor, Mr Ian Pope. The Applicant said that Mr Pope refused to promote him, and he took this up with his superiors and was eventually promoted as promised.
Following that event, the Applicant said that Mr Pope began to treat him “unfavourably”. He was not cordial in usual office interaction.
The Applicant had an “extremely difficult” two years under Mr Pope’s management. This came to an end in about 2002 and he was mindful of an improvement in his emotional condition. However, Mr Pope became the Applicant’s supervisor again in June 2012. This caused an exacerbation of his distress due to a continuation of inappropriate behaviour which included bullying and intimidation and a feeling of discrimination against him because of his accent. All this led to a deterioration in the Applicant’s medical condition. He sought treatment for these problems from his general practitioner, Dr Catherine Mutton. Eventually he became unable to continue working due to his psychiatric condition. This was assessed by qualified psychiatrists at the time as being caused by his employment. These psychiatrists were aware that the Applicant had a prior motor vehicle accident claim, which also had a component for psychiatric injury.
The Applicant was humiliated and angry at this treatment at the hands of his supervisor, and, as noted above, the Respondent accepted his claim in September 2013.
Dr Richard Allison was (and is) the Applicant’s treating psychiatrist. He reported in June of 2014 that the Applicant’s ‘recurrence of depression occurred in the context of bullying in the workplace’.[4] He noted that when he made those comments the bullying had ceased, but the effect of it had not. The Applicant at that point had not recovered. The bullying remained the most significant cause of the Applicant’s ‘current episode of depression’.[5]
[4] T14/149.
[5] Ibid.
On 14 February 2018, the Respondent determined that it had no liability for medical expenses or incapacity payments.
At that time, and up to the hearing of this matter, the Applicant maintained that he continued to suffer symptoms and disability and that his employment continued to contribute to the ongoing condition to a significant degree.
The Respondent made challenge to the Applicant’s credibility, and also the extent of his asserted disabilities as the Applicant maintained them to be, citing activities that it considered would be inconsistent with the diagnosis. The Respondent also emphasised the extent to which other factors may be the mainstay of the major depressive illness rather than the original bullying incidents.
Hearing and COVID 19
The hearing commenced on 2 December 2019 but was required to be adjourned as considerable information that was not yet before the Tribunal was to be relied on by the Respondent.
At the time the hearing was set to resume, the restrictions necessitated by the COVID-19 pandemic had come into effect. The parties and Tribunal agreed that the hearing should proceed using Microsoft Teams and that the participants would be isolated and use webcam and computer screens for the purpose of giving evidence. This enabled key players in the proceedings to have their face on the active screen, including the three Tribunal Members, Counsel and the relevant witness. Other participants could observe the proceedings but did not need to have their images on the screen, as in the case of a person sitting in the back of a hearing room.
It will be noted here at the outset that the Tribunal did not experience difficulty in the issue of assessing the evidence of witnesses who were giving evidence in this way. The Tribunal was not impeded in its ability to hear them and to assess witnesses’ facial and vocal expressions when issues of credibility were serious and controversial, and the matter involved assessment of psychiatric injury.
The proceedings took place pursuant to the COVID-19 Special Measures Practice Direction – Freedom of Information, General and Veterans’ Appeals Divisions (“COVID-19 Practice Direction”) given under s 18B of the Administrative Appeals Tribunal Act 1975 dated 27 April 2020. Further comments as to issues arising out of this procedure will be made at the end of these reasons.
THE APPLICANT
The Applicant gave evidence over a long period of time. This was a full morning in person when the hearing commenced in December 2019 and another day and a half via Microsoft Teams after it resumed April 2020. He gave evidence as to his problems with sleep, lack of motivation, lack of enjoyment of life and rumination on his changed circumstances and loss of the work he enjoyed. He was cross-examined on activities that seemed, on the face of them, to be inconsistent with an ongoing major depressive disorder. These were evidenced via screenshots from social media.
The Applicant was involved in a motor vehicle accident on the 13 December 2001, which went to judgement in the District Court in South Australia. He claimed physical and psychiatric injuries arising from this accident and his wife had a loss of consortium claim. There was a period off work as a result of these injuries.
The Applicant’s credit was in dispute in these proceedings. Whilst off work, he has undertaken activities which, at first glance, would indicate an ability above his stated functional level. These include running for election over two years for the Liberal party in the Legislative Council (Upper House in South Australia) before withdrawing. He was active in the annual Diwali Festival, as President of the Punjabi Association of South Australia, as a Liberal Party member, as an advocate for local Punjabi community members needing assistance and as a greeter and host for visiting dignitaries. He has travelled overseas. The Applicant has posted photographs and comments on Facebook of many of these activities. He has acted as an advocate and support person for other people in his community in Administrative Appeals Tribunal (“AAT”) proceedings.
In addition, for the Diwali festival, the Applicant is mentioned by name on advertising material along with a telephone number he shares with his wife as the principal contact for interested parties.
There was an effort to downplay these matters for the purpose of the hearing. The Applicant would explain his activities as being orchestrated by others including family, friends, media persons and associates. His evidence was that his involvement was reluctant. However, in a number of instances the evidence indicated his active participation, often as initiator of these events. One might find difficulty in accepting these assertions at face value as to the extent to which he has been “pushed” into these activities.
In oral evidence, he exaggerated on matters, such as being taken overseas because he was suicidal when a medical report arising out of a consultation about two weeks prior to the trip said there was no suggestion at all of suicide. Thus, his evidence is difficult to accept at face value and needs to be carefully analysed and corroborated.
Then, the attacks on his credit because he had referred to himself as a “Doctor” when he was not qualified as medical practitioner. This had some relevance in the District Court case in South Australia which arose following a motor vehicle accident. The Tribunal did not place much weight on that issue in these proceedings as it seemed historical and not directly relevant to the bullying he suffered in his employment. We find embarrassment that might have arisen over claiming to be a doctor when he was not entitled to do so was not a cause of ongoing depression. It can be relevant in assessing credit and we have noted the very cautious approach we have taken to his evidence and his account of matters to the various doctors who have assessed him.
An attack on his credit would be more sustainable if the Applicant had kept these from his certifying doctors.
However, it is clear that the Applicant was telling Dr Allison about his achievements, such as the festival, or meeting with Malcolm Turnbull, or running for parliament. Dr Alison was of the view that these well-documented and frequent episodes of motivated behaviour were transient moments of “excitement” that were not sustained and often were followed by periods of a low mood. He opined that such periods of increased activity and engagement being unsustainable renders the Applicant unfit for occupational activity.
Dr Alison’s evidence was that there have been several instances when such behaviours were regarded as excessive, marked by a grandiose attitude and occasionally to the extent that a possible state of hypomania was considered to have existed. To confound this observation, such states may have been induced by the concurrent antidepressant treatment. Regardless, such states did not fulfil criteria for a formal diagnosis of hypomania and thus do not exclude the possibility the increased activity reflected inherent capacity.
What is important from the evidence is that these episodes do not evince a prolonged capacity for work. Dr Allison thought the Applicant’s participation in these activities (involving public interaction) would be embarrassing due to the Applicant’s reduced capacity.
The Applicant’s wife gave similar evidence. She thought his foray into politics was misguided, saying in evidence, ‘He don’t bring even coffee or make lunch or anything. So how they can help in the politics? Why he’s pretending. Why he show off’.[6] She said she wanted to ring Mr John Gardener (now a minister in the South Australian Government) and say to him ‘please can you stop, he is not feeling well’.[7]
[6] Transcript (30 April 2020), 12.
[7] Ibid 11.
She said the pictures (as in posts on social media) were a show for the public but they were ‘just all the – all fake pictures’.[8] Mrs Chugha said, ‘You think who these people on the Facebook all the pictures, that’s true’. No. All picture is fake. Definitely fake. Just they show to I am involving the politics’.[9] We take that to mean that the impression given by the various posts was false, not that the photographs had been doctored.
[8] Ibid 12.
[9] Ibid 11.
These comments are important when one analyses the social media information. It can provide a false picture of happiness and excitement. So much has been raised in the few cases dealing with this, when it is such an apparently extensive phenomenon and we instance the comments of Gibson DCJ in the cases of Foong v Ghaly; Foong v McLellan:[10]
Social media entries are commonly tendered in personal injury proceedings in relation to claims for damages where a plaintiff is asserted not to have suffered the kind of ongoing disabilities that are claimed to have been suffered. It is a valuable source of material, in that it has been created by the party against whom the material is tendered.
It would seem disingenuous for a party who has created such entries to object to their tender, although common sense suggests that some social media entries may well exaggerate or indeed fantasize about the lifestyle of the person who posts the material. These are, however, matters which can be raised in evidence by the party whose posts are challenged (see, for example, Davies v Nilsen [2016] VSC 557 at [35]).
[10] [2017] NSWDC 303, [28]-[29].
Dr Allison thought these public ventures were embarrassing and beyond the Applicant’s capacity. He would note deterioration in mood and affect after one of these exhilarating episodes. The Applicant’s wife tended to confirm he was an embarrassment and would be grandiose at one moment and then flat. Therefore, if these events did evince some capacity, it was not lasting enough to be sustainable in a work environment.
Mrs Chugha also gave important corroborative evidence as to the persistence of the condition. She noted the Applicant had emotional problems following the motor vehicle accident, but that he had improved. This is also consistent with his return to his work as a senior rehabilitation consultant with the Respondent in 2012. She said in her evidence that over the last three to four years he had been behaving differently. She described his lethargy and her need to push him to undertake activities such as going to the Temple.
We pause here to note that Mrs Chugha gave her evidence in a compelling manner. She did not have an interpreter and was heavily accented. Sometimes her evidence was hard to follow but could be clarified with further questioning. She was upset at times but giving evidence can be difficult for people and the Tribunal accepts over time she has become exasperated with her husband’s situation as she has seen it over the last four years. We accept her evidence as genuinely trying to assist the Tribunal.
The Applicant was challenged on some very bad investment choices made by him following the accepted injury. The evidence was imprecise, but it appears he lost the amount of $200,000 and had to sell some investments. He downplayed this as a source of significant upset and ongoing unhappiness, which frankly was hard to accept. However, it does not feature to any significant extent in his treating psychiatrist’s notes which do have wide ranging topics covered including those which, as discussed, would be inconsistent with a debilitating condition. Whilst it must have affected him more than to the extent he admitted, it does not loom in the medical evidence as the factor that would take over to a significant degree as the cause of his ongoing problems.
The Applicant was odd with regards to rehabilitation, making some odd comments, but this might be a misunderstanding. However, other than obtaining regular treatment there was little evidence as to a structured return to work plan.
There was also evidence about his caste and his view of the caste system in India and its application beyond India and in this century. The evidence was not consistent but not a great deal has been made of this issue in the medical considerations or parties’ submissions. It remains of peripheral interest at best.
The Tribunal also confirms that whilst many issues were raised over the course of the hearing, some matters were less relevant than others, as in the example above. In this regard we are mindful of the comments of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[11]
[11] [2003] FCAFC 184.
CONSIDERATION OF MEDICAL EVIDENCE
The case before the Tribunal represented a challenge because of the seemingly polarised views of the evidence presented by the psychiatric experts for the Respondent and the Applicant. It is salient to remind ourselves that the issue of psychiatric diagnosis is rarely simple and often requires longitudinal assessment beyond relatively brief, cross-sectional arrangements. Psychiatric opinion based on limited interview arrangements, documentation review and dependence on the experience of the assessor in medicolegal settings must stand tested against the opinion of the treating health professional which carries potentially significant weight in evidence.
With regard to the need for definitive diagnosis in the psychiatric domain, it must also be borne in mind that negative human emotions do not by their nature signify a psychiatric condition. Experiences of sadness, anger, hatred, resentment etc. are normal expressions of human feelings often exercised within the interpersonal domain. Even if exerting severe or deleterious impact upon the individual’s relationships or functioning this does not demand a psychiatric disorder representing a mental illness or disease of the mind or mental incapacity.
The evidence presented by the Applicant’s treating psychiatrist, Dr Allison, reflects a longstanding therapeutic relationship between doctor and patient. Dr Allison was clear in his opinion that the Applicant continues to suffer from the condition which had its origins in the 2013 incidents. Dr Allison states in the record that, as recently as November 2019, the Applicant has a formal psychiatric diagnosis of a major depressive disorder and ‘which more than amply fulfil the DSM5 diagnostic criteria for major depression’.[12]
[12] Exhibit 12, 5.
Dr Allison elaborated that the Applicant predominantly suffers from a loss of enjoyment of life in the absence of suicidal thinking, in addition to poor concentration, energy and motivation, has persistent fatigue and that processing information from conversations is so limited that anything ‘more than eight words’[13] in length would not be registered. This remains Dr Allison’s primary opinion which thus determines the view that the Applicant’s functional capacity is extremely poor and renders him unable to engage in meaningful return to work which, were it to occur, could be a source of further deterioration in his mental state.
[13] Ibid.
Dr Allison was informed of the history of the Applicant’s activities in recent years, some of which he was previously unaware of. As noted previously, the evidence before the Tribunal consists of a variety of such activities; salient amongst these are the long term use of social media with frequent comments entered into Facebook reflecting the Applicant’s sharp awareness of current affairs, a longstanding interest in politics, the Applicant’s significant presence at political functions, the Applicant’s’ two year attempt at parliamentary preselection, his ongoing and current presidency of the prominent Punjabi Association of South Australia where he has been involved in assisting with the organisation of the pre-eminent annual festival, the Diwali, and his other actions such as advocating for fellow Punjabis in search of employment.
Dr Allison’s evidence was that actions such as involvement in social media, specifically the use of Facebook, did not require other than the most trivial of exertions and that formulating one line while in bed was not convincing as reflecting any meaningful non-depressive state. Nevertheless, he was questioned whether such behaviours were consistent with his diagnosis which in his opinion resulted in substantial levels of social, occupational and relational disability. Dr Allison explained that such periods of activity are transient times of relative “excitability”, but that such recruitment of energy is never sustained and thus has an important bearing on the issue of endurance for occupational activity. He reported that, in addition, he understood that the Applicant may assert ownership of initiating or progressing such activities that were in fact attributable to others.
Dr Allison noted that such periods of apparent increased action at times seemed to be associated with a quality of inflated self-esteem or capacity. For example, the Applicant’s ongoing interest in politics including an attempt at preselection for parliament or the time when the Applicant had described a wish to be a senior government official. Dr Allison had been concerned this may have been an abnormal inversion of the depressed mood disorder characterised by an elevation of mood, technically referred to as “hypomania” and possibly induced by the use of antidepressant medication. Dr Allison however considered that this was not confirmed on further examination and did not fulfil the criteria for such a diagnosis.
Dr Allison opined that the Applicant was ‘totally and permanently disabled’[14] as a result of his primary diagnosis. He believed that the Applicant suffers from a further additional consequence of “chronic” severe depression, which is an erosion of cognitive capacities. This recognised complication of severe depression was also confirmed in the assessment by the neuropsychologist Dr Sara Lucas. The concern regarding deterioration in cognitive powers was noted by other assessing psychiatrists. Such observations were persistently described as associated with defects in language expression, issues of command of English and the Applicant’s accented speech aside. This was earlier manifested as significant difficulties in the listener understanding the Applicant’s verbal responses. At worst, some isolated incidents of this were reported by both Dr Allison and Dr Alison Moffatt, another assessing psychiatrist, as possible “thought disorder” or “psychosis” where a breakdown in fluency of ideation occurs. However, such mental state phenomena have not subsequently been observed as ongoing.
[14] Transcript (30 April 2020), 29.
Nevertheless, Dr Allison continues to opine that “auditory processing”, that is the Applicant’s ability to comprehend spoken information remains impaired as one element of ongoing cognitive defects. In this regard, Dr Allison was advised of the Applicant’s performance in the Tribunal hearing, where under cross-examination the witness demonstrated endurance, full engagement, followed proceedings with full mental capacity and without complaint (command of English and accented speech aside) and gave account of his history in response to questions without faltering. The Tribunal found this observation is in contradistinction to the view of the treating psychiatrist’s assessment of ongoing severe disability. Dr Allison responded to this information, stating, ‘maybe I have underestimated him’.[15]
[15] Ibid 56.
It is noted that Dr Allison provided evidence of long-term therapy utilising numerous trials of antidepressant medication, sometimes with additional augmenting psychiatric medication, in an attempt to alleviate or eliminate the depressed mood. This has not produced a sustained remission of the condition. This treatment occurs concurrently with long term counselling provided by Dr Allison. In addition, there has been long term consultation with clinical psychologist Mr Tindaro Fallo.
Mr Fallo provided evidence that the Applicant continues to suffer from the index condition and is in accord with Dr Allison’s view of this and the consequent disability. Mr Fallo opined that over the time of consultations with himself, the Applicant has not in any substantive way “changed”. That is, there has been no improvement (it is noted that this was consistent with Mrs Chugha’s observations). Mr Fallo asserted, however, that therapy has prevented the condition from worsening over this time.
The Respondent’s expert witness, Dr Shiva Gunapu, was cross-examined at length. He had reviewed the Applicant on two separate occasions and was apprised of previous psychiatric reports including those of the treating psychiatrist, Dr Allison. In summary, Dr Gunapu confirmed the material in his reports and was able to elaborate on this material in considerable detail. The evidence at times required considerable clarification by repeated enquiry from the Applicant’s representative and the Tribunal.
Dr Gunapu asserted that the Applicant’s current condition was predominantly determined by factors other than the compensated condition that had resulted from the 2013 incidents at work. He acknowledged quite clearly that he did not dispute that prior finding, namely of a psychiatric diagnosis of a depressive disorder, but that the present psychological status was primarily due to other factors. These additional factors were explained as a combination of character traits, motivational influences that were possibly both 'conscious or unconscious’[16] in nature and attitudinal factors in relation to his situation.
[16] Transcript (7 May 2020), 16.
Dr Gunapu did not refute that there was extant a current depressive disorder but believed that it was not the major contributory factor to the Applicant’s functioning and therefore to the issue of work capability. Dr Gunapu stated that the issue with the depressed mood was a question of the “intensity” of the mood state, that is, the degree of symptom expression and he opined that he would formally describe this as a major depression in “partial remission”. This diagnosis therefore is in contrast to that of the treating psychiatrist’s opinion of a major depressive disorder of far greater severity. In providing a specific response to the Tribunal enquiry regarding Dr Allison’s report, where he outlined a variety of criteria he believed amply fulfilled the diagnosis of such a severe depressive disorder, Dr Gunapu informed the Tribunal that he did not accept that all such criteria were due to the condition but were strongly influenced by the above identified additional personal and intrinsic factors.
Dr Gunapu further elaborated that the rationale for his primary opinion was based on a number of his observations at interview and the external evidence provided in documentation regarding the Applicant’s behaviours and lifestyle.
Firstly, Dr Gunapu highlighted that the information contained in the transcripts of the Applicant’s social media entries and other associated documents demonstrated a level of activity and interpersonal behaviours inconsistent with a depressive disorder of the severity asserted by Dr Allison. He opined that the specifics of the activities revealed an ability to select and choose what the Applicant favoured as worthy of involvement. This was described as ‘selective motivation’[17] suggesting a contrast to the state of severe depression typically characterised by an inability to motivate. These activities, especially those in regard to political ambitions and interests and the ongoing role of presidency of a prominent ethnic social association, demonstrate the Applicant’s need to be seen as an important individual with status and prestige and hence were powerful motivating factors demonstrating a degree of functional capacity.
[17] Ibid 39.
Secondly, the opinion asserted that such activities, imbued as they were with perceived high social status, were consistent with the Applicant’s characterological needs. Such character or personality-based factors were opined as reflecting “narcissistic traits”. The witness spent considerable time explaining that this was not a formal diagnosis of a disorder. Dr Gunapu explained that the description of personality traits is a comment upon the individual’s pattern of non-pathological predictable behaviours and interactions with the external environment. As such they determine to a degree the person’s choices and reactions to situations including social situations. Specifically, Dr Gunapu clarified that he was not making a diagnosis of a Narcissistic Personality Disorder. He opined that these traits were nonetheless influential in determining the Applicant’s choices.
An example (described above) was the Applicant’s comment as documented in Dr Allison’s clinical file that involvement in a rehabilitation program would “offend” his dignity.
Thirdly, Dr Gunapu noted that there had been an established clinical history and psychiatric opinions regarding the Applicant’s cognitive capacities since the 2013 work incidents. Dr Allison had been concerned about cognitive decline which was shared by Dr Moffatt and Associate Professor Abdul Khalid, who had earlier provided psychiatric opinion. Dr Allison continues to assert that this is ongoing and contributes to functional decline and incapacity. Dr Allison opined that this was as a consequence of the depressive disorder and the assessment by a neuropsychologist confirmed his view. However, Dr Gunapu reported that his observation at his final interview with the Applicant revealed a “dramatic” absence of any such evidence of cognitive deficits. Dr Gunapu stated that this occurred in the absence of any specific changes in treatment that might explain such an observation. Dr Gunapu further added that he was able, during his interview with the Applicant, to converse in the Hindi language and whilst conceding that the Applicant was not completely fluent in Hindi, he assessed that there was no evidence of abnormal cognition. Dr Gunapu therefore refuted the opinion that this was an extant factor explaining incapacity.
Fourthly, Dr Gunapu explained his view concerning treatment received by the Applicant. He reported that the Applicant had over many years been prescribed pharmacotherapy of a large number of medications including, predominantly, antidepressants. He stated that these were often of low doses suggesting suboptimal treatment although the experience of adverse effects as reported in Dr Allison’s clinical treatment notes supplies one reason for such caution. The Tribunal understood that Dr Gunapu considered that such pharmacotherapeutic failure demonstrated that the underlying condition was not predominantly determined by a severe depressed mood, but rather supported his view of additional contributory non-biological factors. Furthermore, his view was that orthodox psychiatric practice would most certainly have seriously considered a trial of electroconvulsive treatment in similar cases where the depressive disorder is of the severity reported by others and with resistance to other offered treatments. Dr Gunapu considered that this was highly unusual and considered that this confirmed the atypical nature of the clinical presentation, suggesting that the depressed mood is not severe.
Dr Allison believed that the Applicant was and remains disabled as a consequence of the original bullying behaviour. He did not audit the bullying issue himself but noted that it had been accepted and that he has treated the Applicant for it for many years. Dr Allison remained of the opinion that the ongoing presence of a major depressive illness was evident and has been unremitting in its severity and had several features consistent with the major criteria of the DSM-V classification of that disorder.
Dr Allison’s notes do refer to the bullying, such as a reference in February 2014, ‘still ruminates about bullying by Ian’[18] and the enjoyment he derived from his rehabilitation role before the subject accepted disability. Dr Allison also discussed the issues with other doctors who were assessing the Applicant for medico-legal purposes as to the connexion of the accepted condition and the bullying. At a consultation, in August 2016, he said that in a dispute with a local council, ‘Council members were racist’ which was ‘the same battle he had at work’.
[18] Exhibit 27.
Reference has been made above to a serious inability to comprehend auditory information – that is conversation from others – in Dr Allison’s evidence being limited to ‘nothing more than eight words’.[19] He asserted that there continued to be serious cognitive impairment as a consequence of the chronic depressive state which would have an impact on decision-making and judgement. This is troubling because, in his evidence before the Tribunal that went over many hours, the Applicant was able to demonstrate a capacity to understand the questions and provide coherent evidence. Sometimes he was difficult to comprehend but that was more due to pronunciation and accent than a misunderstanding of concepts in spoken English. This leads to a view that Dr Allison may have over-emphasised this aspect the Applicant’s presentation. That is important as it may point to a greater potential capacity that can be worked on in future rehabilitation attempts.
[19] Exhibit 12, 5.
Dr Allison’s assessment of the Applicant was of a severe loss of enjoyment of life although there was no convincing evidence of a history of suicidal thinking and no evidence of suicidal ideation. Despite the long history of antidepressant and augmenting pharmacotherapy the status of the mood disorder was essentially unchanged. Dr Allison conceded that there were atypical features to the subject mood disorder. Dr Allison was of the view that, whilst there may be a contribution from other factors, such as character, these were not significant.
The picture that the treating psychiatrist had of the Applicant is one of severe disability and in many respects (perhaps due to the passage of time) and in the absence of objective evidence to the contrary, seems to have simply assumed a higher level of disability than in fact was still the case. This may have arisen as a consequence of misunderstanding instances where the Applicant has actually told him of ability, but Dr Allison had considered that he was accepting credit for the work of others. Thus, a situation might arise where the extent of the Applicant’s disability and thus the apparent failure of treatment has been over-emphasised, not as a result of the Applicant misleading Dr Allison, but Dr Allison misunderstanding the full extent of the difficulties in that he has made too much of them.
Dr Allison’s view is that the Applicant has a severe disability. However, that view might well change if he was to undertake detailed analysis of the Applicant’s achievements, without taking a view that this was an embarrassment or taking credit due to someone else, but actually focusing where the Applicant has capacity that could be harnessed towards a proper rehabilitation program, noting the Applicant’s stated desire for employment.
However, the Tribunal bears in mind that both Mr Fallo and Dr Allison made the point that the Applicant is not stable in his activated states and can present shortly after the positive performances as highly depressed and disabled.
FINDING
The Tribunal finds that the Applicant’s accepted condition is still the significant contributing factor of his ongoing disease. With regard to the considerations set out in s 5B of the SRC Act, and the non-exhaustive guidance contained therein we confirm the precipitating cause, that is the bullying behaviour occurred for quite a long time, albeit with a hiatus. The early bullying at work predisposed him to the injury caused by the second bout.
The Applicant was able to return to his work following the motor vehicle accident. He enjoyed his work and derived status from it. This enjoyment was dashed on the return of his perceived tormentor to the workplace in a supervisory role.
The Applicant’s treating health professionals supported the ongoing nature of the symptoms and this was supported by the evidence of the Applicant’s wife.
The Tribunal considers that, notwithstanding the ongoing disability caused by the bullying, the information gathered by the Respondent for the matter may well be of use to the Applicant’s treating professionals to build on his surviving strengths. A more targeted rehabilitation program rather than maintaining his health (as noted by Mr Fallo) may well lead to an improvement and return of capacity. It would also test his resolve to improve, notwithstanding the comment regarding rehabilitation offending him. The finding of ongoing disease or operative injury does not prevent the Respondent reviewing the matter in the future, but a more comprehensive rehabilitation plan prepared in concert with treating practitioners, building on the abilities he has demonstrated (in a sporadic way), would in the Tribunal’s view be a more productive way to approach the Applicant’s ongoing condition.
LESSONS OBSERVED IN USE OF MICROSOFT TEAMS FOR A MULTI-DAY HEARING WITH VARIOUS WITNESSES
The COVID-19 Practice Direction applies. The following observations of the experience of the Microsoft Teams trial might be of interest.
The quality of the instruments used by the participants is very important. Modern computer equipment is essential.
Internet connections need to be strong. In this case one of the witnesses either failed to have a strong internet connection, or had older technology, and this did not work at all and that witness was then required to give evidence by telephone.
In long running compensation matters where there are significant documents before the Tribunal but often appearing in various places, it is difficult in a normal hearing for witnesses to go from one document that might be in the T-documents to another one that might be tendered in another way, and so on. The witnesses often required help to navigate the large volumes of documents. An exception was granted in accordance with Rule 4.8 of the COVID-19 Practice Direction that an instructing solicitor who was assisting the Applicant’s counsel could actually attend in the same room as the witnesses to assist them on matters of technology when necessary (such as adjusting cameras or microphones as witnesses were giving evidence) or to assist with locating documents when it was necessary to jump from one to the other for the purposes of examination or cross-examination.
There was no harm associated with that assistance in terms of the solicitor assisting a witness whilst they were being cross-examined. The solicitor attending to assist on these administrative manners was in full view of the Tribunal at all times as well as having to conform to their ethical obligations. The solicitor would attend the witness when necessary, but not be in the same room the whole time.
Microsoft Teams allows users to “pin” relevant participants to their screen, this means that the Tribunal had a very clear view of the witnesses’ face (and the witnesses and Counsel of the Tribunal member’s faces). Indeed, one had a much clearer view than would be the case in the usual hearing room where the distances are four to six metres for face-to-face. In our opinion, this gives the opportunity for Tribunal members and Counsel to adequately assess the demeanour of witnesses. Often one is met with an objection to a witness giving evidence remotely on the alleged basis of credibility. We did not sense any diminution of our ability to assess a person’s facial expressions, reactions, and overall demeanour in their giving of evidence in this matter.
One has to be strict with the use of the mute facility in ensuring there is no competing noise over the person who needs to be speaking at the time. That includes Counsel speaking over the witnesses (or vice versa) or Members speaking over witnesses. Whilst sometimes this can occur in a hearing room and the listener can still make sense of the conversation, the competing noises completely obliterate each other on the computer speakers. This also occurs with respect to the rustling of papers which, again, in a very paper driven matter such as a General Division of the AAT compensation claim, is something that occurs frequently. The papers are generally close to the computer (for necessity) and therefore the turning of the pages makes a noise that can cause quite a distortion. Using the mute facility on Microsoft Teams tends to eliminate or minimise that noise.
Also, clear directions to participants not to talk over each other and to leave a gap when a question or answer is finished to ensure that there is minimal sound distortion is important. It is not simply a matter of appropriate courtesy but more practically it prevents the spoken word being distorted beyond use.
Also, a gentle reminder to participants to ensure the cameras and microphones are turned off when the hearing rises on an adjournment, so that the behind-closed-door style comments are not broadcast across to participants.
The need to be in control of documents before the Tribunal, clearly emphasised in the existing practice directions and the updated practice directions, cannot be underestimated. Having the witnesses at a solicitor’s office certainly assisted in ensuring that all relevant information would be before the particular witnesses which might not be the case if they were in a further remote location.
There is consideration for unrepresented applicants. In these times of reduced use of the AAT Registry and it would seem to be appropriate on a hearing such as the one we undertook, that if an applicant was unrepresented he or she could attend at the Registry to be placed in a meeting room or in one of the smaller hearing rooms for the purpose of:
(a)accessing the superior technology; and
(b)to also have the assistance of Registry staff with navigation of the various documents and dealing with the technology if the need arises.
The respondents are usually very well equipped on the technology side and are sophisticated and experienced practitioners. We do not see that such a course would cause any unfair advantage for an applicant, but rather be necessary to ensure they are not disadvantaged by the exigencies of the times.
DECISION
The Reviewable Decision of the Respondent dated 4 April 2018 is set aside.
It is directed that within 14 days of the date of this determination each party may apply to the Tribunal for orders in relation to costs and if not agreed, either party can apply to the Tribunal for the costs to be taxed.
83. I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for the decision herein of Members Ward, Durkin and Stephan
........................[Sgnd].................................
Associate
Dated: 10 August 2020
Date of hearing:
2 December 2019
29 April 2020
30 April 2020
1 May 2020
7 May 2020
Applicant
By Microsoft Teams
Representative for the Applicant:
Mr P Milte, Wallmans Lawyers
Representative for the Respondent:
Ms J Battiste on instructions from Australian Government Solicitor
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