Coe and Comcare
[2007] AATA 1096
•5 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1096
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/882
GENERAL ADMINISTRATIVE DIVISION ) N2006/1134 Re LINDA COE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Saw Hooi Toh Date of hearing 1 & 2 February 2007
Date of Decision 5 March 2007
PlaceSydney
Decision The reviewable decision is affirmed. [sgd] Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
WORKER’S COMPENSATION – claim for post traumatic stress disorder – whether Applicant suffers from PTSD – whether PTSD or other psychiatric illness arose out of work related explosion – held Applicant’s psychiatric condition is not PTSD - held Applicant’s psychiatric condition not caused by explosion at work.
CASES
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
Senior Member, Mrs Josephine Kelly and Member, Dr Saw Hooi Toh Introduction
1. On 12 December 1979 when Ms Coe was 20 years old, she was injured in an explosion at the then Department of Defence’s Office of the Defence Production factory at St Marys. She was in Nepean Hospital for 9 days. Liability was accepted at the time for lacerations to face and neck, embedded foreign bodies to left of the umbilicus, disturbed hearing and cerebral concussion.
2. Ms Coe currently suffers from a psychiatric illness. Her case was that the appropriate diagnosis is post traumatic stress disorder (“PTSD”) resulting from the 1979 explosion, the onset of which occurred at that time.
3. For convenience, in this decision the Department of Defence’s Office of the Defence Production St Mary’s site will be referred to as ADI, which took it over in 1989.
4. The only issue in these proceedings is whether the psychiatric condition she presently suffers was relevantly caused by that explosion. The subsidiary issues are:
-the appropriate diagnosis of Ms Coe’s psychiatric condition;
-the date of onset
-the date of onset of incapacity or periods of incapacity;
-her need for medical treatment
5. For the reasons which follow, we find that Ms Coe’s psychiatric condition is not PTDS and was not relevantly caused by the explosion.
Background
6. The following is a summary of relevant facts which are either not in dispute or reflect contemporaneous records. It is useful to set out this material in chronological order because of the lengthy lapse of time since the injury.
7. Ms Coe left school at the end of 1974. From 1975 to 1977 she had a number of jobs including shop assistant and clerical assistant at the Australian Taxation Office (ATO), from which she resigned when she became pregnant. Her first son was born in September 1978 and she separated from the child’s father about 6 weeks before the birth.
8. In June 1979 Ms Coe commenced work at ADI. On 10 December the same year she was injured in the explosion. She suffered a lacerated face and neck, a stellate wound to the left of her umbilicus in which pieces of Perspex were lodged, and a disturbance of her hearing, probably as a result of the blast, and cerebral concussion. Dr Mullins, surgeon, sutured her facial laceration and removed Perspex from the abdominal wall.
9. On 11 December Ms Coe signed a statutory declaration about the explosion in which she said: “I was standing there talking to Jenny Smith. The next think I remembered was someone carrying me out of the building”.
10. On 15 December Ms Coe returned to theatre for delayed primary closure of abdominal wound. Some time before discharge, she complained of partial deafness. An ENT consultation was arranged. She was found to have a perforation of the right eardrum. She was discharged from hospital on 20 December.
11. We are not certain when Ms Coe returned to work in 1980. A photocopy document appears to show that she returned to work (but to a different job) on 9 January 1980. However, Dr Parer, surgeon, who saw her on 8 January thought she was unfit to return to work and would be reviewed in a further 3 weeks. On 25 January Dr Mullins saw Ms Coe and certified her fit to resume normal duties from 29 January 1980. It may be that the photocopy which indicates her return to work was 9 January is not accurate or has been obscured in part. It seems likely that she returned to work on 29 January in accordance with Dr Mullins’ letter.
12. On 25 May 1980 Ms Coe was admitted to hospital for repair to her tympanic membrane but no operation was performed because it had healed. On 3 June 1980 Dr Smith (ENT specialist) found Ms Coe’s hearing was within normal limits, the prognosis was good and “she has no problems”.
13. On 22 September 1980 Dr Mullins saw Ms Coe and found that the scar on her face “had improved enormously” and could be easily hidden by makeup but Ms Coe chose not to use it, and that further improvement may occur. The wound from her laparotomy had almost disappeared, the stellate wound was also soundly healed, and there was no sign of herniation. The wound to her neck “has healed almost without mark and she appears to me to have adjusted to the effects of the operation very well, and to accept that she could have been very much worse, and this gives her cause to value any disability that exists now as being fairly small”.
14. There is a note on the work medical file dated 10 November 1980: “Return to work after 1/52 off last week … “nerves” – was feeling very …” (the copy is illegible and incomplete). The following page stated: “(see above accident in Factory on 10.12.79. Presently being treated by GP and will be seeing hypnotist on 19/11/80. Advise to see own G.P. Not fit to return to work”.
15. During 1981 Ms Coe saw various medical practitioners for medico-legal assessment in relation to a claim for damages arising from the explosion. Various reports were in evidence, however, the most relevant to our determination were those of two psychiatrists, Dr Revai, who saw Ms Coe on 17 June 1981 at the request of the Commonwealth Crown Solicitor, and Dr McMurdo who saw her at the request of her solicitors on 1 September 1981.
16. In summary, Dr Revai thought that:
“She appeared to be overinvolved with her facial appearance”.
“I could not satisfy myself that there were any other signs of anxiety inappropriate to an unmarried mother with a two year old son who is hyperactive. I feel that any anxiety she has now would be helped by her joining the Hyper-activity Association for treatment for her son.”
17. Dr McMurdo stated:
“I could find no real evidence of any memory impairment nor any severe clinical depression….
Assessment
Miss Steffen suffered a very frightening accident which could have been much more serious. It has caused her to be fearful of working in that situation and she avoids the section where the accident occurred. She believes she is now more tense and self-conscious and this is aggravated by the scarring on her face.
The situation is compounded by the responsibility of her having a child and being a single mother.
It seems probable that the anxiety which Miss Steffen manifests and the symptoms of headaches are related to the accident, though there may be some aggravation because of her own social circumstances. She was advised to get out as much as possible and to try to gain more social contacts.
With regards to the prognosis, if she could develop a good relationship and be able to settle down and perhaps have her own home then I would hope that there would be a considerable improvement in her general nervous stability. Should the situation not improve over the next twelve months or so then she might benefit from a course of assertive training and relaxation.”
18. In October 1981 Ms Coe resigned from ADI, and her common law claim was settled in February 1982. She married in September of that year and gave birth to her daughter in July the following year. She separated from her husband when the baby was 6 weeks old. There were a number of separations thereafter.
19. Ms Coe worked as a clerical assistant for the ATO from January 1987 until September 1988. In January 1989 her mother died and she returned to live with her husband. In August Ms Coe gave birth to her second son who suffers from a mild form of cerebral palsy. She separated from her husband around the same time.
20. Although Ms Coe’s solicitors advised Comcare of the names of her general practitioners from 1979 onwards, no records or reports from her general practitioners from 1979 to 1992 were in evidence. The clinical notes and some reports from Dr Barrett, her general practitioner since 1992 were in evidence. We found Dr Barrett’s clinical notes practically impossible to decipher and therefore will refer to her report of 6 February 2003 in some detail later in this decision.
21. Ms Coe was also employed from November 1999 to October 2000 doing periodic casual work for a labour hire company as a material handler which required finding parts and taking them to the production line.
The present claim
22. Ms Coe apparently had no communication with Comcare or its predecessor from May 1984 until September 2001 when a solicitor she had consulted sought to resurrect her claim. In 1984 she was advised that the net award of damages she had received had to be offset against compensation paid or payable before she would be eligible to receive further compensation payments. She was also advised that the amount remaining to be offset was $10,462.90 and that in order to determine any possible future entitlement to compensation payment she should “continue to send evidence of incapacity for work (such as medical certificates) and medical costs (accounts/receipts) related to the compensable conditions”.
23. On 25 September 2001 Ms Coe’s solicitor wrote to Comcare: “We are instructed that Ms Coe’s ongoing difficulties include extremely poor memory and ongoing anxiety (it is unknown to us whether brain damage was ever investigated) together with chronic depression, inability to re-learn how to drive a car … hearing loss in both ears which is deteriorating and continuous neck pain and stiffness”.
24. Nearly a year later, on 15 August 2002, Dr McCusker, consultant neurologist, saw Ms Coe and provided a report to Dr Barrett. The doctor reported that Ms Coe presented because of problems with memory and anxiety. During the consultation Ms Coe said she had a lot of headaches. Dr McCusker thought Ms Coe was unlikely to have a serious memory impairment given her description of the episode of loss of consciousness: “She most likely has pseudo dementia related to her stress and depression and probable post traumatic stress disorder.” Dr McCusker suggested that be treated first and if complaints of memory impairment persisted further investigation could be taken.
25. In September 2002 Ms Coe was referred to Nepean Anxiety Disorders clinic, and in November an initial assessment was done and she was referred to Penrith Mental Health Team for psychological assessment. Ms Coe has been seeing Ms Melanie Clark, psychologist since December 2002. We will refer in some detail to Ms Clark’s report shortly.
Consideration
Ms Coe
26. Cross-examination of Ms Coe established that her memory was not good. In general terms, she accepted that contemporaneous notes of doctors reflected what she had said at the time, although she did not presently recall saying certain things. Her memory of the explosion was confused.
Lay witnesses
27. We had written statements from Ms Coe’s sister and father, and a woman who was a friend of Ms Coe’s at the time of the explosion. In summary, the evidence was to the effect that that Ms Coe changed after the explosion, becoming more withdrawn, not wanting to mix with people, and that she was too nervous to drive. In particular her father described an incident where he was with Ms Coe after the explosion when she was driving. When a car horn beeped, she “went into shock and refused to drive” . Her friend stated that she had run into Ms Coe “a couple of times since the accident, given her telephone number but she never got in touch”.
28. We accept that these witnesses were doing the best they could, however, they were providing their recollections from 27 years ago in the context of these proceedings in which Ms Coe asserts that her current condition is caused by the explosion. They were not cross-examined. Further, their evidence was in the main in general terms. We do not give great weight to these statements.
Dr Barrett
29. In her report of 6 February 2003 Dr Barrett wrote that Ms Coe had presented in 1992 with depression and has had continuing chronic depression, anxiety and agoraphobia since. She presented with increased depression in September 2002 associated with suicidal thoughts and was referred to the Penrith Mental Health Team, as set out earlier. The doctor reported that Ms Coe has been on a number of antidepressants in the past 20 years (the first number is illegible on our photocopy but that is what we understand from the clinical notes) and has seen several counsellors. She said that Ms Coe has been a sole parent for more than 14 years, is on a supporting mother’s pension, and has a son with cerebral palsy, and then “Both of these factors would add stress to her life.” The doctor concluded that Ms Coe suffered PTSD, long term depression and anxiety.
Ms Clark
30. In her report dated 20 December 2004, Ms Clark states that “Ms Coe presented with symptoms of Posttraumatic Stress, Disorder, Depression and Social Phobia” but later explains that: “The following trauma symptoms were not disclosed during initial assessments. Consequently the information below was collected over numerous sessions”. She goes on to give detailed descriptions of various symptoms Ms Coe has described over time on which she bases her conclusion. She reports that Ms Coe believed that the explosion triggered the symptoms which she had experienced since that incident. Ms Clark said that the symptoms caused clinically significant distress such that Ms Coe had been unable to sustain paid employment since the accident.
31. In October 2004 Ms Coe told Ms Clark that she had been unable to deal with the issue of compensation in relation to the explosion until about three years ago as it was too traumatic to discuss with other people. Ms Coe thought that compensation had been pursued by the union but that she was too distressed to enter the courtroom and did not want to have to talk about the explosion on the day, and an out of court settlement was reached. Ms Coe gave similar evidence before us.
32. In addition to trauma symptoms, Ms Coe reported a number of comorbid symptoms, anxiety and depressive symptoms, detailed in the report, and could only say that they had been present for many years and not before the explosion. Ms Clark expressed the opinion that Ms Coe’s depressive symptoms appeared to have been exacerbated by an accommodation change six months before the initial consultation in 2002.
33. Ms Clark stated that Ms Coe found attending ongoing medical appointments for her son (who suffers Cerebral Palsy), “very difficult due to anxiety symptoms.”
34. Ms Clark set out the treatment Ms Coe had had which included ongoing follow-up with Dr Barrett, medication, and since December 2002, treatment from Penrith Mental Health Service, usually on a weekly basis with Ms Clark, which involved psychoeducation, arousal reduction techniques and cognitive therapy.
35. Ms Clark’s opinion was that:
“Ms Coe appears to be presenting with symptoms of Posttraumatic Stress Disorder, Social Phobia – Generalised, and symptoms of Major Depression.
“Given the time difference between the explosion and the initial assessment, it is not possible to determine whether the diagnosis of PTSD is related to the explosion, although this is highly likely. However, in my opinion, based on the information received from Ms Coe, the above symptoms are secondary to a traumatic event.”
36. As at the date of the report, Ms Coe had received 47 sessions in addition to phone consultations. Ms Clark sets out areas of improvement since Ms Coe had started treatment but says: “Overall, treatment has been slow due to the long-standing nature of Ms Coe’s anxiety and depressive symptoms, and because of setbacks that have occurred during treatment.” In relation to returning to work, Ms Clark considered that Ms Coe was “too symptomatic to return to work. She is dedicated to treatment, but at times finds it too difficult to attend, due to her level of depression and anxiety.”
37. It is significant to our consideration that the first time a possible diagnosis of PTSD was mentioned was by Dr McCusker in 2002 after the claim for compensation had been resurrected. Dr Barrett had been seeing Ms Coe for 10 years without such a diagnosis occurring to her. It is logically appealing to link Ms Coe’s undoubted psychiatric condition to the explosion, and once such a link had been suggested, it is not surprising that Ms Coe would relate her symptoms to it, particularly in her dealings with Ms Clark which occurred after she had seen Dr McCusker. We do not criticise Ms Coe for doing so. However, for the reasons which follow we are not persuaded on the evidence that that is the correct conclusion.
The Psychiatric Evidence
38. The Tribunal had reports and oral evidence from three psychiatrists, Doctors Dinnen, Skinner and Synnott. Each made a different diagnosis and was unshaken by the opinions of the others. Dr Dinnen concluded the psychiatric condition was relevantly caused by the explosion. Doctors Skinner and Synott did not.
39. In summary Dr Dinnen’s opinion was that Ms Coe suffered PTDS associated with major depression as a result of the explosion. In his report of 9 March 2006 Dr Dinnen did not give a date of onset as such but in relation to prognosis said that “this condition is likely to persist in the future as it has done over the past twenty five years”. Taken literally that would make the date of onset as 1981. In his oral evidence, we understood Dr Dinnen to be more specific, and to say that the onset was around the time of the explosion. He said that the descriptions given by the lay witnesses of Ms Coe’s change of behaviour after the explosion was in keeping with his diagnosis, and that she had had PTSD “since then”.
40. He set out the history of the diagnosis of PTSD which was first recognised in about 1979 following the Vietnam War. He said that neither Dr Revai nor Dr McMurdo would have considered that diagnosis in the Australian psychiatric context in 1981.
41. In cross-examination, Dr Dinnen said that he would not have diagnosed PTSD on the basis of the symptoms described to Dr Revai and Dr McMurdo in 1981. He arrived at his diagnosis by looking back over the years and putting a picture together.
42. Dr Skinner provided three reports, two of which considered reports from Dr Dinnen. She did not consider that Ms Coe fulfilled the criteria for PTSD and explained why. It was not just the delay since the explosion which prevented such a diagnosis. We understood her evidence to be consistent with that of Dr Dinnen, to the extent that the diagnosis of PTSD has been used in Australia from about 1983.
43. Dr Skinner’s diagnosis was anxiety disorder with agoraphobia, which was probably present prior to the explosion but which is apparent when Ms Coe feels that she is not receiving adequate emotional support.
44. We prefer Dr Skinner’s evidence to that of Dr Dinnen or Dr Synnott. We accept that both Dr Skinner and Dr Dinnen have extensive experience with patients suffering from PTSD. However, we are persuaded by Dr Skinner’s analysis of Ms Coe’s history. We agree that it is very difficult to obtain the history of a person’s functioning during their late adolescent and early adult years, particularly when that period was more than 25 years ago. Further the history from 1981 until 1992 is not supported by contemporaneous medical records.
45. We consider that Dr Skinner has given appropriate consideration to events in Ms Coe’s life as well as is possible on the available evidence,, before and particularly after the explosion. That consideration led the doctor to describe Ms Coe’s life as “difficult” with a number of major life crises. We did not find Dr Dinnen’s assessment of the effect of events in Ms Coe’s life after the explosion persuasive because in our view he glossed over events which were significant. Further, Dr Dinnen and Ms Clark, psychologist, placed some weight on what they described as Ms Coe’s unwillingness to talk about the explosion and her symptoms at the time describing it as an avoidance mechanism. On the evidence, we agree with Dr Skinner that Ms Coe has a poor long term memory and that the difficulty she has recalling what happened at the time of the explosion is a consequence of that rather than avoidance.
46. Both Dr Dinnen and Dr Skinner considered the reports of Dr Revai and Dr McMurdo, both of whom found no evidence of significant anxiety or depression. Both Dr Dinnen and Dr Skinner said that the symptoms reported to those psychiatrists in 1981 did not support a diagnosis of PTSD.
47. We consider that if Ms Coe had had PTSD from the time of the explosion as Dr Dinnen finds, Dr Revai and/or Dr McMurdo would have noted symptoms which although not leading to a diagnosis of PTSD at that time, would have been noted by a psychiatrist examining her about the impact of the explosion on her, and which may have constituted a different diagnosis of an anxiety disorder. We prefer Dr Skinner’s evidence on that point. We do not consider that Dr Dinnen gave adequate consideration to the reports of Dr McMurdo and Dr Revai.
48. Dr Synnott’s evidence was helpful to the extent that he diagnosed generalised anxiety disorder which was not related to her work injury, which supports our conclusion. Otherwise his evidence did not assist us because he would not engage in helping us to assess the various reports, just stating that other psychiatrists given different histories on different days may come to different conclusions.
49. Finally, Mr Vincent who appeared for Ms Coe emphasised that it did not matter whose diagnosis we found (for example that of Dr Dinnen, Dr Barrett, or Ms Clark), it was a question of the connection with her work which was important. As set out above, we are not satisfied on the evidence that her psychiatric condition is relevantly caused by her employment.
50. He also argued that we could make a finding that Ms Coe satisfied the test set out in Comcare v Mooi (1996) 69 FCR 439,,. However, as we are satisfied that Ms Coe suffers from a psychiatric illness, it is not necessary to address that matter.
The Decision
51. There are two proceedings before the Tribunal. The first document sent by Ms Coe’s solicitors on 25 September 2001 resurrecting her claim referred to various injuries arising from the explosion and there is reference in the evidence in relation to the first proceedings to injuries other than the alleged psychiatric injury. However, we emphasise that before us the only issue was the psychiatric condition in respect of which Ms Coe has been unsuccessful.
52. For the reasons set out above, we affirm the reviewable decisions of 10 June 2005 (proceedings N2005/882) and 7 August 2006 (proceedings N2006/1134).
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine KellySigned: Ms P Nimmagadda
AssociateDate of Hearing 1 and 2 February 2007
Date of Decision 5 March 2007
Solicitors for Applicant Stacks / Forster
Counsel for the Applicant Mr Mark Vincent
Solicitors for the Respondent Sparke Helmore
Counsel for the Respondent Mr Brendan Kelly
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