de Leon and Comcare (Compensation)

de Leon and Comcare (Compensation) [2017] AATA 563 (28 April 2017)
Division:General Division
File Numbers: 2015/1969 and 2015/2626
Re:Cynthia de Leon
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:28 April 2017
Place:Sydney

The decision under review is affirmed
.............................[sgd]...........................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
COMPENSATION – further claim for compensation – permanent impairment and non-economic loss – aggravation of major depressive disorder – whether applicant continues to suffer an aggravation of major depressive disorder compensable by respondent - whether applicant suffers a permanent impairment as a result of the injury – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 16, 19, 24, 27
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
28 April 2017
INTRODUCTION

In or around 1999, the applicant commenced work with the Australian Taxation Office (ATO).
On 1 July 2004, she joined the small business team and expressed a wish to be primarily involved in technical rather than compliance work. She was assigned to compliance work.
The applicant reported an incident at work when she attended her first site visit prior to November 2004. She said the technical officer she went with was not able to answer questions asked by the client and had lost her temper. The applicant reported this to her incident manager and requested to be assigned a different officer. This request was denied.
The applicant was then given further assignments with that particular officer and, as a result of another allegedly unprofessional audit conducted by the same officer and the applicant on or about 13 April 2005, the applicant took time off work and received medical treatment.
She was off work for a considerable period of time and, after attempts to return to work, subsequently signed a consent agreement which was filed with the Tribunal and dated 19 November 2009.
This consent agreement set aside the decision by the respondent dated 27 June 2007 rejecting the applicants claim and in substitution it was decided:
(a)The applicant sustained an aggravation of major depressive disorder on 13 April 2005 as a result of the audit incident which occurred during the course of her employment; and
(b)The respondent was liable to pay compensation to the applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of the injury.
On 3 April 2014, the applicant lodged a claim with the respondent for permanent impairment and non-economic loss.
On 16 December 2014, the applicant was sent by the respondent to see Dr Hong, a Consultant Psychiatrist, as a result of her seeking permanent impairment and non-economic loss.
Dr Hong’s medical report dated 23 December 2014 stated that there was no evidence that the applicant's former employment continued to contribute to her current mental state. Accordingly, the respondent, by Determination dated 9 February 2015 (the ‘Initial determination’) denied liability to pay compensation to the applicant under Sections 24 and 27 of the SRC Act for the applicant’s claimed permanent impairment and non-economic loss arising from a previously accepted condition, namely aggravation of major depressive disorder, single episode.
The delegate determined that the report of Dr Hong dated 23 December 2014 supported a finding that the applicant's current psychological condition was no longer related to work-related factors.
The applicant’s solicitors requested reconsideration on the applicant's behalf and, in a Determination dated 31 March 2015, the respondent found that the applicant no longer suffered from the effects of her compensable condition and consequently her entitlements to medical treatment and incapacity were denied pursuant to sections 16 and 19 of the SRC Act.
In a Reconsideration of Determination dated 8 April 2015, the respondent affirmed the Initial Determination of 9 February 2015 and noted that the applicant had not been exposed to the employment factors that led to a condition since early 2008 and therefore considered the applicant's employment no longer contributed to the accepted condition. The delegate also referred to the determination dated 31 March 2015.
On 20 April 2015, the applicant lodged an application to the AAT for a review of the 8 April 2015 Determination and also requested a reconsideration of the Determination dated 31 March 2015. By reconsideration dated 20 May 2015 the respondent affirmed the earlier decision of the delegate determining that the applicant suffered from a non-compensable condition which was not related to her employment with the ATO.
On 25 May 2015 the applicant lodged an application to the AAT for review of that decision.
LEGISLATION
The relevant legislation governing this case is section 14 of the SRC Act and, of relevance to that section, are sections 5A(1) and 5B of the Act.
Section 14(1) of the Act provides that:
Subject to this part, Comcare is liable to pay compensation in accordance with this Act in respect of the injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
‘Injury’ is defined in subsection 5A(1) of the SRC Act as:
…
(a)a disease suffered by an employee,
(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 employees 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 employees employment) that is an aggravation of that injury 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 employees employment
…
‘Disease’ is defined in section 5B of the SRC Act as an ailment suffered by an employee or an aggravation of such an ailment. Ailment is also defined as meaning any physical or mental ailment disorder or defect or morbid condition (whether of sudden onset or gradual development).
Section 16 of the SRC Act relates to Comcare being liable to pay medical treatment in relation to an injury that is reasonable for the employee to obtain in the circumstances and Section 19 relates to Comcare being liable to pay to the employee, in respect of the injury, weekly compensation during the period the employee is incapacitated.
Section 24 of the SRC Act relates to permanent impairment where Comcare is liable to pay compensation in respect of the injury and section 27 sets out that Comcare is liable to pay additional compensation for non-economic loss that is suffered by the employee as a result of an injury compensable under section 24.
Both Counsel for the applicant and respondent submitted that, if it were to be found that the injury suffered by the applicant was not compensable or did not lead to permanent impairment, then sections 24 and 27 are not relevant. Both Counsel also seemed to agree that, if the Tribunal found any injury to be permanent and the injury was permanent in the vicinity of 10% total incapacity, the matter should be remitted to the respondent for further assessment.
Both Counsels’ submissions on the law applicable to this case can be summarised as follows:
·If the initially accepted condition of ‘aggravation of a major depressive disorder, single episode’ continued up until the 2015 Determination, then that Determination ceasing liability to pay compensation should be overturned and a Determination of permanent incapacity would flow from that.
·The basic difference between the submissions was that Counsel for the respondent submitted to the effect that the aggravation of 2005 had, to all intents and purposes, ceased. The major depressive disorder which the applicant had suffered from, effectively since her childhood, continued and that any subsequent aggravation of the disorder was caused by other more recent events and not the work related incident/incidents.
·Counsel for the applicant submitted that nothing had fundamentally changed since 2009 when the respondent accepted liability. Whilst there had been other stressful events post-2009, and indeed between 2005 and 2009, the effects of the incidents in 2004 and 2005 at the ATO had never gone away and continued to trouble the applicant. Accordingly, the respondent remained liable and, as there was ample evidence to show that the applicant's condition was permanent, this also enlivened sections 24 and 29 of the Act.
As a result of the above, the Tribunal's role is to carefully look at, and assess, the evidence of the various witnesses and come to the correct or at least preferable view.
In doing so, it is important to look at the background and history.
It should be borne in mind that the full history in this matter was not apparent to anyone, with the possible exception of the applicant, until the third day of the hearing in August 2016.
This was when the applicant, in cross-examination, volunteered details of a sexual assault committed against her when she was nine years old by a young man who was a family employee (gardener). It transpired that she had only mentioned this to one person, a Mr Michael Sakr, a Psychologist/Hypnotist, who treated her in the mid-1990s.
It should also be noted that some of the treating professionals were given a more detailed history that others and some were under the misapprehension when they initially spoke to the applicant that there were no particular incidents of note in her childhood.
After the hearing days in August 2016, several treating doctors and medico-legal doctors were given additional information, including information in relation to the sexual assault, and asked to provide further comment which they did in reports and in oral evidence given during the November hearings.
BACKGROUND
The applicant was born on 10 October 1962 in the Philippines.
It appears the applicant's mother was not a particularly maternal woman and the applicant hardly knew her father, who was not on the scene from the time she was a very young child. She lived from the age of about nine with an uncle and aunt for about one year and after that with her grandparents.
Around the time her parents were looking to separate (when she was seven or eight years of age) there were some steps taken to offer her for adoption to family members. This caused her concern but it appears it did not eventuate.
At about the age of nine she was sexually abused by a gardener at her parent’s property.
It also appears that her mother, on occasions, would use corporal punishment with her, that her grandparents were quite strict and that her grandmother did not approve of some of the men she associated with at school and university.
In the late 1980s the applicant moved to Australia with her fiancé and initially lived in Blacktown with his parents. In June 1989 the applicant married.
The applicant and her husband moved to Parramatta after they married and between 1990 and 1991 she worked for the ANZ bank. It was during this period that she learnt of her husband's infidelity.
Whilst with the ANZ bank, the applicant stated that she had been stalked for about a month and that her manager on one occasion had spoken inappropriately to her.
On 8 July 1991 she commenced working with the Commonwealth Bank of Australia (CBA).
During her time at CBA, she had some difficulty with fellow workers and her team leaders. She complained about her leader getting angry with her and abusing her in front of other workers. This was disputed and it led to her being off work for some two weeks in 1994 and making a Comcare claim (the 1994 Comcare claim) which was subsequently rejected.
During her time at the Commonwealth Bank, she also reported an incident of stalking which lasted for three months which included visits to her branch and telephone calls to her.
In 1994, the applicant consulted a number of health professionals for stress including Dr S Ng, a General Practitioner, and a Mr Michael Sakr, whom she reported the sexual assault as a nine-year-old to.
The 1994 Comcare claim for stress was denied on 19 January 1995 and a report prepared for Comcare by Clinical Psychologist J Farrelly dated 12 December 1994, who noted that the applicant had reported her parents had offered her for adoption following their separation. Page 5 of Ms Farrelly’s report stated “she is seen to be experiencing a moderate level of depression, characterised by feeling retiring, shy, remote and sad”.
Ms Farrelly noted on page 7 of her report that, whilst the applicant stated that her marriage was satisfactory, people in the work environment gained the impression there were domestic problems and that may well have contributed to her depression and anxiety.
Ms Farrelly further indicated on page 7 that her unhappy background as a child, especially being offered for adoption and the rejection that implied was “likely to have prepared the ground for depression and anxiety, and it is possibly the case that Mrs Perez has never been a happy self-confident person.”
In 1995, the applicant's mother moved to Australia prior to the birth of the applicant’s daughter. This led to further tensions between the applicant and her husband and a Westmead Hospital record of 3 February 1995 referred to the applicant seeing a counsellor for depression and as having a history of psychiatric depression and there being a family history of psychiatric disorder in that her sister had depression.
On 12 September 1995, the applicant’s daughter was born. Evidence before the Tribunal indicated that she had postnatal depression for anything between one to two years. Cumberland Hospital records indicated the applicant advised that she had been treated with medication for one year and the applicant herself indicated she had postnatal depression for about a year and a half.
On 18 September 1995, Westmead Hospital recorded that she was prone to depression and on 11 June 1996 the applicant had her first consultation with Dr Geoffrey Ho, General Practitioner.
In 1999 she commenced employment with the ATO.
In 2000 she had surgery to remove lumps in her breasts and feared that she might have cancer. She was diagnosed with pelvic inflammatory disease. In 2000 there were further problems in her marriage and she and her husband lived separately under the one roof.
Later in 2000, applicant divorced and was involved in a stalking incident at the ATO. In June of that year she registered for an ABN as an individual sole trader. She also entered into a child support agreement with her former husband.
Between 2000 and 2003, the applicant saw other men and was in a year-long relationship with a man, however this ended in 2003 because he had hit her daughter on two separate occasions.
The breakdown of this relationship led to further medical treatment in July 2003 and her general practitioner, Dr Frank Chin, in his clinical notes, referred to the applicant having been depressed and because of the stress she was suffering she wanted her brother to come to Australia because she needed his support.
In a report dated 8 July 2003, Psychologist Ms P Young noted that the applicant had concerns for the safety and well-being of her daughter, that her larger fear is of her cancer returning and that she was having a difficult time without family support.
Dr Chin also noted that she was seeing a psychologist and that she was on 20 mg of Lovan a day.
In 2003, the applicant was also having issues in relation to the sale of a property that led her to complain to the New South Wales Department of Fair Trading in relation to a solicitor.
In 2004, her mother came to live in Australia to help her with her daughter, and her aunt, who she was close to, died in the Philippines.
On 1 July 2004 the applicant first joined the ATO's small business SME financial services team.
In November 2004 the workplace incident occurred whereby the applicant was embarrassed as she felt the audit had not been conducted in a professional manner as described above.
On 8 September 2004 and 30 September 2004, the applicant saw Dr Chin. His notes described her as suffering from dizziness, hot and cold pain at the back of the neck and shoulders, dry coughs and headache. He gave her a few days off work. Dr Chin, on both occasions, made no reference to any workplace issues.
In November 2004 the applicant fell from her hammock whilst on leave for moving house and injured her back.
In 2005, the applicant's mother suffered a stroke and, in January 2005, the applicant’s request for study support was rejected by the ATO.
The medical certificates from 8 March 2005 to 23 March 2005 referred to the applicant suffering from lumbago, cervical pain and lower back pain.
On 2 April 2005 the applicant’s home was broken into and some of her property was stolen.
On 12 April 2005, an e-mail from Dr Wong, Occupational Physician, to the ATO referred to overriding issues of depression and personal issues. He noted the applicant was affected by depression, musculoskeletal pain to her spine together with emotional issues outside work and interpersonal difficulties at work.
On 13 April 2005, the applicant claims to have first noticed the condition of depression and this was the date she ceased full-time employment. The applicant did not state any specific incident but rather a build-up of problems. Dr Chin quoted the above from Dr Wong and also added that her mother wasn't feeling well, was too demanding and also that the applicant had mortgages, was paying rent, she was separated from her husband, she was undertaking counselling, was waking up early and had poor appetite.
In a report dated 3 May 2005, Dr Wong reported that the applicant’s depression had deepened since her last appointment on 7 April 2005 and that she was trialling a new antidepressant.
Dr Wong, in a report dated 19 May 2005, recommended the applicant see a financial counsellor and noted in a July 2005 report that there was practically no improvement in her depression and she was unable to work. During that month, the applicant's mother was also in respite care.
The applicant, in August 2005, commenced consultations with Dr Ben Teoh.
On 22 December 2005 Dr Graham George, Consultant Psychiatrist at the ATO, noted that the applicant presented more as having chronic adjustment disorder as opposed to major depression. He also questioned whether she was entirely open during the interview and was concerned about compliance with medication. He felt she was fit to work part-time in a different area.
In 2006, the applicant commenced a relationship and was engaged to be married to a man from the Philippines. She later broke off the relationship because she felt her fiancé was only interested in gaining Australian citizenship.
In April 2006, the applicant attended a training seminar and entered into a joint venture with a man named Dowling. Between April and July 2006 she handed over a total of $30,000 to him to invest on her behalf. The money was appropriated it seems by Dowling Subsequently, in 2009, court orders were made in her favour in relation to the $30,000 and also in relation to $12,000 owed to her by her ex-husband for child-support.
Between 2007 and 2009, she had been to the Police on several occasions and tried to get them to act in relation to her co-venturer, but it wasn't until late 2008 after she wrote to the Office of Fair Trading seeking assistance that anything was done to help her and this subsequently resulted in the court orders in her favour. It also appears that the New South Wales Police then finally got involved, but there is no evidence before the tribunal as to what, if anything occurred, as a result of that. It seems Mr Dowling had vanished by that stage.

In September 2006 the applicant sold in one of her properties for $230,000 with a shortfall of $10,000.
On 22 February 2007, Dr Catherine Lovric, Consultant Psychiatrist, noted the applicant was working part-time in processing work and that she had ceased all medications mid-2006. Dr Lovric opined that the applicant's previous diagnosed disorder was now in remission and there was no medical reason why she shouldn't work in a team.
In May 2007 the applicant sold another property at 285,000 with a shortfall of $60,000.
On 28 May 2007, Dr Pickering, Psychiatrist, advised the applicant’s GP (Dr Ho) that, he felt on balance, that the applicant had neurobiological depression. He based this on the fact that her symptoms did not adequately remit when she was taken out of the work situation and that she has a past history of postnatal depression which was convincingly more than just “the baby blues”.
On 27 June 2007, Comcare affirmed the Determination dated 7 December 2006, rejecting liability in accordance with section 14 of the SRC Act for major depressive disorder, single episode.
On 31 August 2007, Dr Lovric stated that she found the applicant to be a very poor historian who was evasive and guarded. Dr Lovric diagnosed the applicant with major depressive disorder, which probably exists on a background of Dysthemia, i.e. a chronic low-grade mood disturbance. She went on to state that whilst the applicant absences from work may be related to her medical conditions they were also in part attitudinal.
On 3 January 2008, Dr Lovric stated the applicant wasn't fit to work because of the symptoms of her major depressive illness which she stated the applicant suffers “from an almost lifelong, and therefore chronic, lower-grade mood disturbance, Dysthemia.”
On 23 January 2008, Dr Pickering noted that there was no family history of depression but that the applicant had experienced depression after the birth of her daughter and felt the problems, in all probability, were a consequence of perceived bullying and harassment in the workplace. Dr Pickering noted that her mother’s ill-health could have been a previous stressor, but was not currently active.
Dr Pickering opined that the applicant did not have a permanent impairment and that he had significant concerns about her failure to disclose adequate amounts of information to those who treated her. He concluded that she was not doing all she could to help herself.
On 6 September 2008 Dr Peter Morse, a Consultant Psychiatrist to the applicant's solicitors, noted that the time the applicant had taken off work had been sufficient to help deal with any problems performing work due to her back problems, although he sought a report in relation to that.
Dr Morse concluded that he was not convinced that “the applicant's experience in the workplace was sufficiently stressful nor was management and others attitude so unreasonable as to cause her currently severe depressive state”. Dr Morse further concluded that he did not believe her impairment was permanent because he did not consider she had had proper treatment.
On 9 November 2008, the applicant told Fair Trading that she had debts, including credit card debts, totalling $185,000.
It should be noted that between 2005 and 2007 the applicant's condition did improve and was in remission at times, but it appears that whenever she went back to work, and especially when she had to work in any type of team environment, she could not continue with her work.
In a report dated 8 December 2008, Dr Michael Prior , consultant psychiatrist to Comcare noted the adjustment disorder in the context of workplace stress on or about 13 April 2005 but stated it was complicated by a major depressive illness. Dr Prior noted that a previous episode of postnatal depression “would have increased her vulnerability to developing a future depression”. Dr Prior went on to note that having two immediate relatives with a diagnosis of depression would have increased her vulnerability to developing depression. He further cited the applicant's tendency not to provide a full history and her failure to comply with medical treatment as factors affecting the treatment of the condition and whether or not it was in remission at any time.
On 6 June 2009, as a result of her difficult financial position, the applicant was declared bankrupt and a trustee appointed. She owed a total of $181,227 to creditors.
In a supplementary report dated 29 October 2009, Dr Prior opined there were at least two previous episodes of major depression occurring prior to the injury. One associated with the birth of the child and the other recurring in July 2003. Dr Prior could not determine whether the 2003 episode “was fully remitted prior to the date of injury or was still present at the date of injury”.
Dr Prior considered the applicant had been less than candid in her history provided to him. Having looked at the clinical notes of Dr Chin in July 2003 and September 2003, Dr Prior opined that she was suffering from a depressive episode at the time and that she had not previously disclosed that episode to him. This added further support to the fact that she suffers from a major depressive disorder (recurrent subtype)
On 19 November 2009 the decision to deny liability was set aside by consent agreement and a substituted decision was decided (see substituted decision above in [6]).
On 17 March 2010, Dr Lovric stated that the applicant continued to suffer from the same psychiatric diagnoses she had previously and as there were no duties the applicant could currently perform. Dr Lovric recommended invalidity retirement for the applicant.
On 3 May 2010, Comcare advised the ATO that they supported the applicant's invalidity retirement application on the basis that the weight of evidence indicated that the applicant was unwell and was unlikely to return to work or undergo a vocational assessment.
Between April 2010 and November 2010 the applicant on five occasions consulted Dr Teoh Psychiatrist. There was no record of what occurred during those consultations.
On 11 February 2011 the applicant formally ceased employment and, in April 2011, Dr Teoh reported her condition as being stable.
In April 2011 the applicant made a report of domestic violence to the police concerning a tenant she was leasing a room in her house to. She told the Tribunal, in oral evidence, she reported him to the police so that she could get rid of him and that this incident did not depress her.
On May 2012, she was discharged from bankruptcy.
On 12 October 2012 she suffered a home invasion whilst in her home. The stolen goods were recovered by the NSW Police and returned to the applicant. She called 000 and locked herself in a room to avoid the perpetrator. The perpetrator was subsequently found to have a gun. Police attended and chased the perpetrator who escaped but left the stolen goods behind which were recovered by police and returned to the applicant.
During oral evidence given to the Tribunal, the applicant described herself as being petrified during this incident and moved to the second floor of her home as a result. In clinical notes dated 16 October 2012, Dr Ho noted that the applicant was not concerned about the loss of property but found the incident psychologically traumatic.
In 2013 the applicant's mother underwent a knee reconstruction that required the applicant to prepare and bring meals to her every other day. In late 2013, the applicant's mother moved in with her after being diagnosed with dementia and being reluctant to go into a nursing home.
At the beginning of 2014, Dr Ho retired and Dr Valliappan took over from him and referred her to Dr Teoh for opinion and management of the depression and to provide her current diagnosis treatment progress. The applicant indicated that she did not get on well with Dr Valliappan.
On 15 February 2014, Dr Teoh advised the applicant’s solicitors that the applicant had presented with a history of significant depressive symptoms which had become chronic and that condition was caused by bullying and harassment that occurred while she was employed by the ATO. He assessed her as having a permanent impairment of 20% in accordance with the Comcare Guidelines.
On 3 April 2014, the applicant lodged a compensation claim for permanent impairment and non-economic loss and referenced Dr Teoh’s report of 15 February 2014 as supporting evidence.
On 15 August 2014, after an incident involving Centrelink staff, where it was believed she had expressed suicidal intent, NSW Police took her to Cumberland Hospital for further assessment. The Cumberland Hospital records note that the applicant was in tears and stated that she was hearing voices. The applicant denied any past psychiatrist history to the staff at Cumberland Hospital.
Cumberland Hospital records between 15 August 2014 and 18 August 2014 included strong references to the applicant feeling overwhelmed since her mother came to live with her in late 2013, that her mother refused to get treatment and she felt very unsupported in her caring duties. She advised that her sister had depression issues and had previously had a nervous breakdown. She also advised that she (the applicant) had problems with the tax department in relation to her submitting returns.
The Cumberland Hospital notes detail that the applicant’s mother and her grandparents used to hit her when she was in her teens and that there had been some domestic violence situations with her ex-husband who had made a hole in the wall with his fist on one occasion.
The notes further recorded that she felt overwhelmed and burdened with problems and she had since had problems with tax and finances.
The assessment notes further stated the applicant “has a long history of depression which has worsened in the context of the carer. Main issues: overburdened carer, financial worries…refusing to come in as a voluntary patient.”
The hospital notes also record that the applicant had currency trading issues, an incompetent accountant and had auditory hallucination at times. She wanted to get help for her mother and on 18 August 2014 stated that the biggest stress is the care of her mother. She further stated she was in debt to the ATO. There was some reference made to problems at work and that this was still causing her distress.
On 18 November 2014, Dr Cameron's notes recorded that police had been called to Centrelink and the applicant had been “taken to a mental institution”. Dr Cameron’s notes further recorded “it's all got to do with work…trying to get a return to work but an ‘incident’ at work keeps flashing back to her…”
On 14 December 2014, Dr Hong saw the applicant and, on 23 December 2014, provided a report to Comcare.
Dr Hong noted that the applicant was a difficult historian who was guarded all the way through the assessment and that there was a tendency for her to underreport her personal history and to over report her impairments. He noted the applicant also significantly reported issues that may portray her in a negative light and he opined that she had a major depressive disorder with chronic symptoms which had not improved in the last few years despite reasonable treatment. He added she is likely to have suffered adjustment disorder in her early life and he opined that “it is difficult to find a connection between her current psychological state and her employment with the ATO”. He concluded that the applicant was capable of undertaking work if she is willing to and that she suffered from 10% permanent impairment.
Between 2014 and 2015 the applicant reported that she had more than 25 active trading accounts during this period of time and also that she had reported her broker to fair trading for stealing money from her.
In the Initial Determination dated 9 February 2015, Comcare denied liability for permanent impairment.
Between May 2015 and August 2015 the applicant consulted Dr Devina Singh, Psychiatrist, on six occasions.
The 2015 the applicant moved to her current residence in Campbell Street.
In a report dated 14 December 2015, Dr Leonard Lee, Consultant Medico-Legal Psychiatrist, observed that the applicant gave a disorganised history. Dr Lee opined that the applicant's presentation was consistent with chronic major depressive disorder and that, while underlying dysfunctional personality had been postulated, the history indicated that she had no impairment prior to her work-related issues. Dr Lee also noted that the applicant believed that she was under surveillance and that apparently strangers had been asking about her church work and about her mother.
On 29 January 2016, Dr Inglis Synnott, Consultant Psychiatrist, noted that the applicant had reported postnatal depression lasting about a year and that her sister had depression but that she did not have any other psychiatric history prior to the onset of her problems at work in 2004.
Dr Synnott reported that the applicant also described her childhood teens as not normal, but without any elaboration. He observed that the applicant gave a generally clear and coherent history but was occasionally vague about dates and details.
Dr Synnott opined that the applicant described experiencing significant psychological symptoms and met the diagnostic criteria of major depressive disorder with prominent anxiety. He further agreed with Dr Hong’s assessment that the applicant had a background of personality dysfunction and maladaptive behaviour and that constitutional factors were highly significant. He assessed at 10% whole person impairment.
On 21 July 2016 the applicant's ABM was cancelled.
FURTHER EVIDENCE BEFORE THE TRIBUNAL
The above background deals with some evidence and opinion stated by various doctors before the Tribunal. As well as this, various medical reports were tendered in evidence and a number of doctors gave evidence. Set out below are what the tribunal considers to be the most relevant parts of their written and oral evidence.
DR L. LEE
Dr Lee saw the applicant on several occasions and prepared 2 reports dated 14 December 2015 and 17 August 2016.
Dr Lee’s report of 14 December 2015 did not encompass a full picture of the applicant’s past history. Nevertheless, he was aware of her work history including the incidents in 2004 and the problems she had with her supervisor. He also referred to her having to do calculations on a spread sheet which she didn't know how to do (in about 2004), which depressed her and she had suicidal impulses.
When she ceased work her manager kept calling after hours disregarding Dr Ho’s medical certificate. This is an apparent reference to when she was on leave between 2005 and 2007. Dr Lee recorded that the Applicant was made to return prematurely to work after the 2004 incident and the staff did not make allowances for her depression. Consequently, the applicant got more and more depressed and ceased work in 2007 because the stress was causing her backaches, a stiff neck and she was not coping with people laughing at her.
Dr Lee was aware that she had consulted Dr Teoh and more recently, Dr Singh, who (in the applicant’s words) thought the applicant was paranoid. The applicant thought that Dr Singh had organised her admission to Cumberland Hospital in 2014 and accordingly she now consults a different GP who is prescribing her with the anti-depressant ‘Lovan’.
Dr Lee referred to the various documents before him from the other medical professionals and came to the conclusion as a result of his examination that her presentation was consistent with chronic major depressive disorder.
Dr Lee further considered it is highly likely, based on the history of the records he reviewed, that the applicant was suffering from chronic depression prior to admission to Cumberland Hospital in 2014. He also considered that she suffered acute exacerbations and deteriorations due to her psychiatric injury prior to her admission and felt that she should be referred to a psychiatrist for ongoing psychiatric treatment.
Dr Lee considered the condition had stabilised and stated, in answer to a question relating to permanent impairment according to Comcare Guidelines:
“Ms De Leon has reactions to the stresses of daily living which cause modification of daily living patterns together with marked disturbance in thinking and definite disturbances in behaviour. She is a hospital dischargee who requires therapy to avoid readmission and her loss of self-control and/or inability to learn from experience results in potential damage to herself. Hence, the permanent impairment is 40%.
While underlying dysfunctional personality has been postulated, that history indicates that she had no impairment prior to the work-related issues. Her prognosis for the future is poor.”
After the August 2016 revelation of sexual abuse, Dr Lee re-examined the applicant and provided a report dated 17 August 2016.
The applicant gave Dr Lee a more detailed history of her family circumstances and told him she lived with her maternal grandparents until high school. She described how her mother did not like some of her boyfriends when she was at university and hit her once with a feather duster.
She spoke about the post-natal depression and the fact that her mother did not know how to care for her daughter. She stated that her ex-husband was unfaithful and they divorced in 2002, but the breakup didn't cause any issues. She spoke of the three stalking issues at the ANZ, CBA and at the ATO but indicated that these did not cause any particular problems.
When asked about her treatment in 2003, she told Dr Lee that she had checked her diary and could not find any entry in relation to any treatment.
She described the problems she had working with a manager in 2004 who accused her of underperforming when she wasn't. She told of how, after she went off on sick leave, that manager would call her at home to try to get her back to work.
She indicated that she has flashbacks of her work at the ATO when people call her to do things she is not comfortable with, for example, when the ATO calls her about her late tax return.
When asked by Dr Lee if she was still affected by the ATO experiences she said:
yes, every time the phone calls [sic]. When my broker was stealing money from me and manipulating data, it reminded me of my manager. Having to do calculations with my broker and doing tax returns reminds me. – The ATO told my accountant that I was crazy. It made me really angry because I was no longer working for them but still getting chased. They denied my return saying I was not in business.
She told Dr Lee that she wasn't fit to work because “I can't concentrate.”
She also added “I have memory problems where I go blank” and said that this was happening more frequently.
Whilst she was managing to look after her mother's basic needs she felt she was unable to keep their house clean and did not get any help from anyone because her daughter was too busy with work and university. She was also concerned that the Immigration Department was delaying a request for her brother to be allowed to come to Australia and felt that she was “being monitored by the government”.
She also had issues arising from the housing department affecting her mother.
Dr Lee felt she had a chronic tendency to misunderstand the motives of others and that paranoid personality features were likely to persist. He felt the applicant was experiencing low morale and depressed mood and felt guilty and unworthy and that she was plagued by anxiety and worries about the future. She felt hopeless and that she was a condemned person and had difficulty managing routine affairs. She had been suicidal and appeared to be immobilised and withdrawn and had no energy for life.
Dr Lee referenced the Minnesota Multiphasic Personality Inventory (MMPI), which suggested a possible paranoid psychosis. However Dr Lee noted the approach suggested a tendency to exaggerate, presenting a large number of unusual symptoms, which is relatively common in personal injury litigation. Dr Lee noted that his colleagues had not diagnosed paranoid psychosis.

As well as a tendency to exaggerate, Dr Lee also indicated he had concerns about the possible impact of over reporting on the validity of her profile. He gave the example of a very unusual combination of responses which was uncommon even in individuals with substantial medical problems.
In addition, Dr Lee noted the applicant provided a very unusual combination of responses that strongly associated with non-credible memory complaints. This combination of responses is uncommon in individuals with significant emotional dysfunction. He noted “hence, her somatic complaints, complaints of malaise, gastrointestinal complaints, head pain complaints, neurological complaints and cognitive complaints should be interpreted cautiously.”
Dr Lee reviewed the further reports from Dr Teoh, Dr Pickering, Dr Morse, Dr Prior, Dr Hong, Dr Ho and Dr Synnott.
Dr Lee was aware that the applicant was hearing voices in August 2014 and had details of the police reports in relation to the home invasion in 2012 and a police report of the 2011 incident where she called police to get rid of the tenant. He was also aware of the lack of police assistance from 2007 in relation to her former business partner who defrauded her.
Dr Lee was asked to comment on this question ‘Is our client still suffering an aggravation due to the ATO audit of 2004 of a major depressive disorder?’ Dr Lee responded as follows:
Notwithstanding the possibility of exaggeration and psychological disturbance in 2003, I consider that she is, as she was able to work until the ATO audit. The M MPI suggested underlying paranoid personality dysfunction that may help explain the persistent recurrent nature of the symptoms.
Dr Lee was further asked whether it was common for victims of sexual abuse, especially childhood sexual abuse, not to divulge the abuse to other people, including treating practitioners, or even family members. Dr Lee stated that this does occur because it's shameful and because the victim may not understand the consequences to their personalities or see the point in getting further upset. Typically, the aggressor tells the victim not to tell anyone.
Dr Lee further opined that the applicant was not fit to work because:
…it is likely that she has significant paranoid personality traits together with chronic depression and anxiety. Noting common ground that she has a maladaptive personality, she is likely to harbour memories of her adverse experiences, and to continue to be affected by them.
Dr Lee rated a permanent impairment as 15%. He did this on the basis that she was capable of performing activities of daily living apparently without supervision or assistance. Reactions to the stressors of daily living cause modification to daily living patterns and marked disturbances in thinking.
Dr Lee also gave evidence during the hearing dates in November 2016.
When asked about the effect of the sexual abuse as a nine year old, he stated that it was complicated and children with personality disorders were vulnerable to depression and insecurity. He further stated that this was an area that was work in progress.
He stated that people were more likely to develop depression if they suffered a traumatic event and he agreed in broad terms that the applicant had a maladaptive personality. He noted that it was relevant that one relative had depression and that the applicant had suffered disruption in childhood and was to be put up for adoption. This would make anyone insecure.
He was asked, during evidence in chief, whether he would agree that the 2004 and 2005 incidents at the tax office was significant given that the applicant had suffered a number of other traumatic events prior to this. He stated “it seems that way.”
He stated the applicant was a complex case and, once a depressive illness is activated it is hard to deactivate down the track. Dr Lee explained “you're left with someone who has not recovered.” In his view, she was still suffering from the effects of the 2004/5 audit incident. He based this primarily on the references to flashbacks to the incident at the ATO.
The Doctor stated that he specialises in this area.
Under cross-examination, Dr Lee indicated he wasn't aware that the applicant had taken until July 2006 to make a compensation claim and of significant events in the applicant’s life. Namely, the applicant had suffered (in November 2004) a back injury as a result of a fall, then in 2005 her mother had had a stroke and her home had been broken into. Further, the applicant was forced to sell her property, she had been referred to a financial counsellor, had been involved in a minor car accident and, in 2006, had been swindled over a period of three months out of $30,000.
Dr Lee was asked by the Tribunal ‘is it possible one or more of these incidents was the straw that broke the camel's back?”, to which he replied “yes it is possible.”
Dr Lee also seemed to agree with the proposition that what the applicant suffered from now could also be a result of the various incidents that occurred to her after 2006 but remained of the view that the applicant never really had got over what occurred in 2004 at the ATO.
Dr Lee stated a person suffering from an adjustment disorder caused by an incident usually resolves the problem within about six months but this did not occur in the applicant’s case.
Whilst Dr Lee agreed that the problems seem to be in significant remission in 2006 they had not gone away and were still a lingering disturbance.
Dr Lee was asked was is it more likely one or more of the 2007 to 2016 incidents caused the current depression for example the robbery and the bankruptcy and he replied “it is relevant. I'd be speculating”.
Dr Lee volunteered that the memory gets distorted over time. It was funny what people remembered. People sometimes suffer quite traumatic events in their childhood. If there was good evidence that the applicant had recovered fully from the incidents that occurred in her childhood, then there would be a good basis to say that the other events caused the current situation. He stated it was possible too that there was a clear improvement but that other events stated above caused a remission.
Dr Lee stated that the applicant had an underlying paranoia which did not show up in some earlier reports and it was possible that she had long-standing paranoia which indicated an underlying personality disorder. Persons with personality dysfunction tend to over report some things and not others.
Dr Lee based his 15% permanent impairment on the fact that the applicant presented as paranoid and indicated that this was not work-related but was an underlying pre-existing condition. He stated he had initially allocated 40% but that was because, at the time, she had been in a psychiatric hospital and now there had been further developments to enable him to reassess the situation.
Other observations made by Dr Lee included that it was impossible to sort out exactly what percentages could be attributable to which particular disorder the applicant had and that nothing should be read into the fact that, in 2012, she did not complained to her GP about the trauma associated with the home invasion.
Dr Lee felt that the home invasion incident wasn't significant because it had no personal meaning as opposed to the fact that she felt humiliated in the audit because she was very sensitive to interpersonal relationships.
Dr Lee was asked whether the August 2014 Cumberland Hospital notes indicated that the biggest stress in her life was the care of her mother and was further asked whether is it possible that more recent stressors led to hospitalisation in 2014, to which he replied “yes it is possible.”
DR BEN TEOH
Dr Teoh prepared a report dated 15 February 2014 as a result of his examination of the applicant on 28 January 2014.
The applicant told him of the problem she had the ATO and had first consulted him on 13 August 2005 after being referred to him by her GP, Dr Chin. In his report, Dr Teoh indicated “there was no history of childhood trauma or abuse.” He noted that she was caring for her mother and that she had experienced a period of post-natal depression following the birth of her daughter.
When asked about the relationship between the condition found on examination and the injury sustained in the accident, Dr Teoh responded “it is my opinion that her condition was caused by the bullying and harassment that occurred when she was employed by the ATO.”
He went on to say that the condition had stabilised and she had not responded to treatment. He rated the WPI as 20%. He noted the applicant had a period of post-natal depression but, in his opinion, this had not caused any significant contribution to the current condition
In a further report dated 30 October 2014, Dr Teoh stated that, in his opinion, the applicant suffered a permanent psychiatric impairment that would continue indefinitely and rated it at 20%.
He also saw the applicant on 22 September 2016 where she gave him a further history, including the sexual abuse which she had not mentioned prior to him.
Dr Teoh stated he has been a psychiatrist for 26 years and was the treating psychiatrist for the applicant. He stated the applicant had a maladaptive personality, suffered from chronic depression and was not coping well during her adult life. He had referred her to psychologists in the past for counselling.
He stated she had a low resilience, was not of normal fortitude and that the sexual abuse was “a missing piece of the jigsaw”.
Dr Teoh said that sexual abuse in childhood was very damaging and a person suffering it ran the risk of developing serious mental illnesses later in life. He felt her relapses could probably be related to this sexual abuse.
The doctor stated that stress can bring on a recall of traumatic events. He stated that it wasn't uncommon for survivors of sexual abuse to suppress memories because if they talk about and they can be overwhelmed.
He agreed with Dr Lee that, whilst the problems of the ATO in 2004 and 2005 may have been in remission in 2006, they were not cured and went on to say that she was still suffering from the incidents in September 2004 at the ATO and was still very much affected by those incidents.
Under cross-examination, Dr Teoh indicated that he did not assess the applicant when he saw her in September 2016 and that she needed some kind of therapy, not an assessment, if the 2004 incident was one of a number of traumatic stressful events. He did state that she had a pre-existing dysfunctional personality because of childhood events, namely abuse and that this was not work place related.
Dr Teoh was shown the tender bundles and was unable to indicate why, on some occasions, he had made notes and that when she had told him that there was no past history of any psychiatric illness, he made the best assessment he could.
He was asked whether it was more likely that her stress was caused by later aggravations and he stated that later stressors could not be discounted.
Dr Teoh was shown his reports for the years 2010, 2011 and 2012 where the entries indicated that the applicant was not preoccupied with the workplace events of the ATO as the reports made no mention of those events at all. He also agreed that the 2013 regression related to her mother and that there was no mention of work.
Dr Teoh stated that problems were a combination of a few things. Dr Teoh was of the opinion that, because of the applicant’s personality disorder, it was hard for her to deal with traumatic events and he stated that, though the more recent episode was significant, “it really is cumulative.”
Dr Teoh also indicated in re-examination that the applicant had never recovered from trauma going back to her childhood, and that she was always quite vulnerable to stress and that she had multiple stresses in her life. 'Dr Teoh also stated that the applicant had never recovered from the incident at the ATO and by 2010, it was unlikely she would be stable enough to work.
Dr Teoh felt any improvements in 2006-2007 were temporary and any remission was short lived. He would not call it a complete remission.
DR INGLIS I. HOWE SYNNOTT
Dr Synnott prepared 2 reports; one dated 29 January 2016 relating to an assessment he conducted of the applicant on 18 January 2016 and a further report dated 25 October 2016, prepared after he read the transcript of the hearings from 3 to 5 August 2016.
In the January 2016 report, Dr Synnott had available to him all the relevant documented medical papers and all other relevant documents relating to this case that were currently available at that time.
The applicant, in January 2016, told him that she first developed significant psychological symptoms in 2004 when she was at the ATO and that there were no particular issues in her personal life at the time that could have contributed to the difficulties. She listed bullying and harassment by her boss and when she was transferred in 2006 to a new department, the bullying and harassment by her boss and colleagues in her new department at work continued until 2007.
When she was asked why she hadn’t returned to work since the incident eight years ago she told Dr Synnott that she felt psychologically unable to work and she said her psychological symptoms were no better now than they were eight years ago. She gave the reason for this as being “I'm always thinking about (it-sic).”
She described her current psychological symptoms as depression, poor sleep, nightmares about the workplace, anxiety, nervousness, difficulty relaxing, difficulty concentrating, memory problems, loss of motivation and interest, reduced socialising, irritability, increased appetite but no suicidal intention and no alcohol or drug abuse.
The applicant told Dr Synnott about her current lifestyle including that she lived with her mother and she was the carer for her mother and that she was taking no regular medication. She did indicate she had post-natal depression for about a year but was not referred to a psychologist or psychiatrist and she told Dr Synnott she had no other psychiatric history prior to the problems in 2004. Dr Synnott noted that there was a family psychiatric history as her sister had depression.
She described her childhood as “not normal” but school was “okay”, that her parents had separated and her maternal grandmother brought her up.
She did indicate there was a minor problem involving a team leader at the CBA but she otherwise had no difficulties in previous workplaces. Dr Synnott indicated that he did not pursue this and couldn't say if it was significant or not.
In his summary, Dr Synnott stated she met the diagnostic criteria of a major depressive disorder with prominent anxiety. He went on to say:
In my opinion, given it is over eight years since she last worked, any connection between her current psychological state and her last workplace is tenuous; it is likely the major issues in her current presentation have no significant relationship to the workplace – this pattern of behaviour suggests a pre-existing psychological or personality vulnerability, and earlier psychological difficulties that could help to explain the inordinate reaction.
Dr Synnott went on to state that he noted she described post-natal depression and a history where her parents separated when she was five or six, being cared for by her maternal grandmother, the breakdown in the relationship with her husband and being a single mother to her daughter all preceded the incident at the ATO.
He also opined that issues in recent times may have contributed to her difficulties, namely looking after her 83-year-old mother who had dementia.
Dr Synnott stated:
In my opinion, based on the presentation at the consultation on 18 January 2016, she is currently psychiatrically incapable of participating in any employment; this pattern appears entrenched – and unlikely to change irrespective of any psychological therapy or psychotropic medication.
Dr Synnott agreed with Dr Hong's conclusion and stated “in my opinion, Ms De Leon has a background of personality dysfunction and maladaptive behaviour.” He opined that non-work issues since 2007 would have likely contributed to her psychological vulnerability and personality dysfunction.
Dr Synnott was of the opinion that the constitutional factors were highly significant and the fact that her sister suffered from depression raised the question of whether she inherited a biological vulnerability to psychological difficulties which could help in part explain her postnatal depression.
Dr Synnott further stated:
In my opinion, purpose and incapacity to work (off work since 2007) cannot be simply attributed to the previous workplace situation – any connection between her current situation and workplace issues where she last worked in 2007 are tenuous; the continuing difficulties point to other factors being significant in her current presentation – including her personality dysfunction and psychological vulnerability.
He went on to say that he didn't think the 2014 hospitalisation to have any particular significance, save being part of the chronic psychological difficulties she had experienced over the years. He went on:
In my opinion, given it is over eight years since she last worked, any connection between her current psychological state and previous employment is tenuous – and not significant.
…it is likely the major issues in her current presentation have no significant relationship to the workplace. This pattern of behaviour suggests a pre-existing psychological vulnerability, and earlier psychological difficulties that could help explain the inordinate reaction.
Dr Synnott said that in his opinion significant non work factors contributing to her condition/presentation including: the dysfunctional personality; the negative mindset, maladaptive behaviour and aggression into an invalid pattern of behaviour. Dr Synnott stated that the applicant was psychiatrically incapable of participating in any kind of employment due to the broad range of psychological symptoms. He assessed her as having a whole person impairment of 10%.
Dr Synnott said he saw nothing to suggest the applicant was voluntarily exaggerating her symptoms or to suggest that the symptoms and findings on examination were inconsistent with the claim condition.
On 25 October 2016 Dr Synnott provided a further report having read the transcript of the proceedings in August 2016. He opined that in his opinion, prior to commencing employment with the ATO, the applicant had a long standing psychological vulnerability and particular personality style that left her predisposed to experiencing psychological difficulties. This was, in no small part, shaped by the experiences of her childhood and teenage years.
He felt she was a person with a significant psychological vulnerability and low resilience and that that was shown in a personality style, namely how she perceived herself and related to other people in the world. This psychological state existed prior to 1999.
Further, in Dr Synnott’s opinion, sexual abuse as a child can be a significant factor with its impact on people, damaging their personality, evolution, the development of psychological resilience and leaving them vulnerable and more predisposed to experiencing psychological difficulties. Childhood sexual abuse could impact on all areas of a person’s life and the consequences may be seen to continue during the journey through life. It may help explain why people have difficulties in various areas of their life that seem otherwise inexplicable or inordinate, if any child sexual abuse was not revealed to the psychiatrist in the consultation.
Dr Synnott further opined that people who experience childhood sexual abuse are often left psychologically vulnerable with reduced psychological resilience, predisposed to experiencing psychological difficulties and often have troubled relationships with their partners, people at work and with the world at large.
He was asked, as a result of the new information, what impact that had on his previous report concerning the extent to which the applicant's current condition was contributed to, or caused by, the ATO workplace incidents. He stated that, in his opinion, the experiences of the applicant and, more broadly, in her life prior to joining the ATO and the impact of those experiences on the evolution of her personality style, level of psychological resilience and particular perception of the world “left her vulnerable and predisposed to experiencing psychological difficulties, where people of normal fortitude would be less likely to react adversely to similar events”.

He went on to say that he still felt the applicant was psychiatrically incapable of participating in any employment and that he remained of the opinion that any current psychiatric incapacity for employment “…has no significant relationship with her previous employment with the ATO...” as already discussed in his report of 18 January 2016.
Dr Synnott remained of the opinion the applicant has a whole person impairment. He indicated the additional information made no substantive difference to the impression he gained when he consulted her on 18 January 2016:
…in fact it provides confirmation of my view that she had a significant personality and psychological vulnerability of long-standing - present well before she started employment with the ATO. Her psychological vulnerability and predisposition to psychological difficulties (inevitably, in my view) became apparent in her workplace at the ATO – but that neither confirmed nor denied the claims about the workplace of the ATO.
…
In my opinion, given it is now nine years since she last worked with the ATO, there is no significant connection between current psychological difficulties – and the previous employment with the ATO. Any connection is tenuous and not significant.
In my opinion, her current psychological difficulties relate to her long-standing psychological and personality vulnerability and predisposition to psychological difficulties – that well predated her employment with the ATO.
Dr Synnott gave evidence on 3 August 2016 and again on 22 November 2016. He stated that the applicant had a dysfunctional personality style consistent with Dr Lee's diagnosis
Dr Synnott indicated that he would describe the applicant as a peculiar individual. He stated that she had an abnormal and unhappy childhood but unfortunately it wasn't particularly uncommon. He said she had a maladjusted personality and dysfunctional personality style and with the further information in relation to the sexual assault he stated “we have another piece of the jigsaw puzzle.”
He was asked a number of questions as to what percentages could be attributed to which disorder and said, “it all comes down to a question of opinion.”
Dr Synnott gave oral evidence that experts would give evidence but, fundamentally, what they are giving is merely their opinions and there is a diverse range of views in this area of medicine. Dr Synnott explained that this is a very difficult task and opinions change as the applicant is assessed in different years.
He went onto say that if one psychiatrist sees a person a lot of times they are certainly in a better position to give an opinion, but their opinion might still not be correct and, if so, might not be as good as others
He indicated that Dr Lovric was a very experienced Psychiatrist and he held her in high regard but he stood by what he said. He did indicate that she had not seen the applicant for 6 years.
Dr Synnott went on to give evidence that it seems the applicant was an unhappy person from a very early age, which has affected her way of relating to the world. When asked by counsel for the applicant whether he felt the incident at the tax office was significant he stated:
…not as significant as you would like to suggest. It is one factor, there are other issues involved in two different workplaces where she had trouble at work. Just because she perceived something to be the cause doesn't mean it's right “
He indicated that he had no evidence to determine the truth or otherwise of the workplace incident and in that regard that seems to be the case as far as this Tribunal is concerned as well. It was not an issue as to whether the incidents occurred as described or not, unlike the alleged incidents of the Commonwealth Bank in 1994 .However the respondent is not denying that they occurred and, after rejecting her claim for compensation initially, the respondent agreed to a consent order in 2009, which is the fact situation this tribunal is left with.
Dr Synnott was taken to the 2014 scheduling at Cumberland Hospital and the reference in the hospital notes of flashbacks at work. It was put to him that didn't this lend support that the things that happen in 2004 at the ATO still troubled the applicant. He responded “She is offering these things to the psychiatrist she is seeing…” Dr Synnott then asked Counsel whether the Applicant told the psychiatrist about her mother and the robbery; and he concluded “my view is it's a selective presentation because of her own motivations.”
During the November hearing dates, it was suggested that perhaps the applicant was exaggerating her situation. Dr Synnott said there are many factors involved that may cause her to emphasise one thing over something else. He felt any connection between her current situation and the workplace situation was tenuous.
He said it is important for a patient to get a message across to the Doctor seeing him/her. There was nothing wrong with a patient self-advancing “but we, as doctors, have to be aware of that”
He felt that, if the ATO incident was a factor, it was not a significant one and other factors such as domestic violence in marriage and other things were far more important.
He stated “I can't prove it is not a factor, it is really a matter of opinion “ He went on to say that psychiatry is a work in progress, he felt that the term depression covers too much A lot is just part of life. He felt we place too many labels on things.
He stated he was certainly not surprised if the applicant felt overwhelmed by having to look after her mother and that this was a constant stress.
The doctor stated that she had recovered in 2007, she then returned to full-time work and she developed a further episode of major depression. Dr Synnott felt that the applicant was not fit to work and nothing will change his view on this. He said “she will never work again, she is a most unfortunate woman – she had a passive demeanour and a sense of helplessness. A most unfortunate life.”
He said many of the things beyond her control in her early years shaped her future.
DR HONG
Dr Hong gave evidence before the Tribunal in August 2016 and again in November 2016. He also prepared a report 23 December 2014 after assessing the applicant on 16 December 2014 and another supplementary report on 10 November 2016
He appeared to have the relevant reports available to him from 2005 through to his report in December 2014.
He stated the applicant was a difficult historian who was guarded all the way through the assessment. She sat facing away from him and made almost no eye contact the entire assessment. She was initially tearful which she could not explain beyond stating that she was worried about having the assessment. As the assessment went along she became more interactive and composed.
Frequently, the applicant answered “I don't know” or “l I cannot remember”. Dr Hong noted that she significantly underreported issues that may portray her in a negative light.
The Applicant gave a basic history in terms of her current circumstances and that she had been working with the ATO since 1999. She indicated she had not attempted any study or employment or any other work since she ceased work with the ATO.
She advised Dr Hong of a problem she had at the ATO and told him much the same as she told the previous doctors about the problems in 2004 and of the problems when she went back to part-time work in 2006- 2007 before she ceased work totally.
She stated that she currently had pain and the pain was stress-related but her GP was not doing anything to investigate or treat the pain.
Dr Hong was aware of the incident at Cumberland Hospital in August 2014.
She told him that she had post-natal depression for about two years after the birth of her daughter and that her sister suffered depression but that no one else in the family had mental health problems.
She described her early life as “not bad” and she did concede her mother was not good at caring for children. She also told him that her husband had been unfaithful and, because of this, she doesn't trust people anymore and that she had not had any relationships or any other partnerships since that time.
Dr Hong assessed the Applicant as having features of mild depression and, while she had regular treatment with her psychiatrist and psychologist and had taken medication, there was no significant improvement. Dr Hong further noted that her coping behaviour was maladaptive and that she was highly avoidant.
Dr Hong stated “Overall my impression was that Ms De Leon suffered ongoing depression against a background of personality dysfunction and maladaptive behaviour. Her dysfunctional personality commenced after her marital dissolution”. He found that she had a major depressive disorder with chronic symptoms which had not improved in the last few years despite treatment.
He further found that there were significant personality contributions to her ongoing depressive symptoms, that her condition had not resolved and her prognosis was poor. He felt it unlikely she would ever recover. In his opinion, the most significant ongoing barrier related to personality factors.
Dr Hong opined that the applicant’s depressive disorder was an interplay between her experience at work and its effect on her dysfunctional personality. He stated:
Noting that Ms De Lyon has not been at the ATO for a long time, it is difficult to find a connection between her current psychological state and her employment with the ATO.
She is a highly sensitive individual who is by nature shy and reserved. She had been exposed to a number of traumatic periods across her life, including domestic violence when she grew up, and discovering her husband was unfaithful which led to her distrusting people generally. I consider constitutional factors to be highly significant.
Overall I consider Ms De Leon's ongoing psychological condition to be predominantly related to non-work factors.”
Dr Hong went on to state “there is no evidence that her former employment continued to contribute to her current mental state”.
Dr Hong opined the applicant would not benefit from any additional medical treatment and stated that she was capable of undertaking employment if she was willing to, but that she was highly avoidant and wasn't motivated to attempt any employment or study. He further noted that because she was caring for her mother, there were significant non-medical barriers for her being away from home. He thought that once her brother was in Australia and caring for their mother she may be more willing to work.
Dr Hong further opined that the applicant suffered postnatal depression in the past which reportedly had resolved and he believed that she is likely to have suffered adjustment disorder in her earlier life in the context of family disruption and domestic violence, even if that was not acknowledged by her. He stated her dysfunctional personality commenced following her marital dissolution. He was unable to isolate the effects of a pre-existing condition.
Following the August revelations of sexual assault as a child, Dr Hong prepared another report on 10 November 2016. He was shown the various reports made by other doctors including the recent report by Dr Lee dated 17 August 2016.
Having considered the additional information, Dr Hong stated that a diagnosis of both paranoid personality disorder and a borderline personality disorder was valid. He favoured a diagnosis of borderline personality disorder. This is a disorder that often resulted from childhood abuse and manifested itself with periods of paranoia and psychosis like symptoms. There were usually long-standing depressive symptoms, recurrent episodes of interpersonal crisis, interpersonal hypersensitivity and often various medically unexplained symptoms or behaviours
Dr Hong explained that, historically, borderline personality disorder was a diagnostic challenge, as such patients present with wide ranging multiple symptoms over long periods of time. Borderline personality disorder presents with unusual and variable symptoms of both neurosis and psychosis but does not fully fulfil the criteria variety category consistently. In his view, that is what the applicant presented with.
He stated that, in his opinion, there was sufficient evidence to demonstrate that the applicant had a pre-existing psychiatric disorder prior to commencing employment with the ATO and prior to the workplace incidents in 2004 and 2005. He noted Dr Lee's opinion, reflected in this report dated 17 August 2016, appeared to support this view.
He noted the applicant appeared to be entrenched in her behaviour and that she appeared to be quite psychiatrically impaired and was unlikely to gain substantial improvement. When asked what date he considered she suffered the current condition he replied that the applicant “has suffered long-standing psychiatric symptoms commencing many years prior to appointment with the ATO. I cannot provide a specific date”.
He further noted that the applicant had omitted her childhood sexual abuse history to numerous medical professionals that she had seen and that it was also true she omitted a number of other histories, for example- the postnatal depression. It was only when specific information was presented to her that she confirmed certain histories.
He said he had previously advised that she was motivated to ascribe problems solely to the workplace and deflect attention from her personal factors.
He stated there was abundant research showing that people who suffered childhood sexual abuse were at significantly increased risk of developing various mental and medical conditions including, but not limited to, psychiatric disorder, personality disorder, posttraumatic stress disorder, substance abuse disorder, cardiac disorder neurological disorder and gastroentilogical disorder. The recent Royal Commission into institutional child abuse highlighted the chronic effects of childhood abuse.
He was asked to comment on what impact, if any, the additional evidence had on his previous report in relation to the applicant's current condition and its relevance to the ATO incidents and he stated “in my opinion, there is substantial evidence that Ms De Leon suffers long-standing psychiatric difficulties in impairment, and that her current psychiatric disorder is not predominantly related to her employment with the ATO.”
Dr Hong adhered to his 10% permanent impairment rating.
Dr Hong gave evidence before the tribunal on two occasions. He stated that from the evidence available to him he would describe the applicant as suffering from chronic dysthemia. He stated she had a number of episodes prior to 2004 sometimes quite severe. He agreed with Ms Farrelly's diagnosis in 1994 of moderate depression and stated that did not surprise him. He stated that this could flare up and .might not have been resolved.
He stated if a person was robust and/or got sufficient support the trigger would be removed and the person would recover from it.
He felt her psychiatric disorder was severe and noted that she had told staff that she was prone to depression prior to the birth of her daughter and this was consistent with dysthemia.
Dr Hong stated his core diagnosis of personality disorder predated the ATO incident. He said she had a capacity to engage in employment which did not require her to engage with others.
In cross-examination during the November sittings Dr Hong said he may not be assisted by a re-examination of the applicant because she had become aware of the litigation process.
He agreed with Dr Lee in relation to child abuse victims and felt that, ultimately her interpersonal issues made employment difficult. He stated a person of normal fortitude would bounce back from the incident at the ATO and indeed many people, if they engaged in treatment, would recover. He conceded that the flashback she had of the ATO in August 2014 was support for the view that the events of 2004 were vexing her still.
When it was suggested in cross-examination that the ATO experience was still in the mix, Dr Hong stated that this was correct, “but other things are on her mind too.” He conceded it was still a factor. He did feel that treatment would alleviate her depression.
THE APPLICANT
The applicant gave evidence during the hearing dates August and again during the hearing dates in November 2016. She also filed a statement dated 25 February 2016 for the proceedings.
It was on day three of the hearing on 5 August 2016 that the applicant gave evidence that she had been sexually abused when she was nine. As indicated above, she had only told this to Mr Steyr in 1994.
In her statement the applicant said, that she worked at the ATO from 1999 until 2007 in reality, however employment was officially terminated on 11 February 2011, and that as a result of “harassment, unfair treatment and isolation whilst employed with the ATO I have been diagnosed with chronic depression.”
She described her feelings of hopelessness and loss of confidence, mood changes, problems with concentration and that she would often get flashbacks about the events and comments made to her when she worked at the ATO. She stated” the thought of hurting either myself or others is now constantly playing on my mind.”
She stated that the physical pain in her neck and shoulder had become stronger and more severe and she relied on pain relief and daily massages. She stated her daughter now helped her with everyday housekeeping and felt she was barely able to take care of herself, let alone clean the house and continue to care for her mother.
She relies on fast food or takeaway because she can’t concentrate on cooking. She stated she effectively lost confidence to do the normal everyday tasks such as responding to letters sent to her by government departments. She ate when she was stressed and had increased in weight.
She had irregular sleeping patterns and her condition impacted on her social and recreational activities. She had trouble maintaining relationships or getting into relationships.
She felt anxiety whenever she saw people she had previously worked with at the ATO.
She did not agree with Dr Hong's report which appeared to say that there was a significant change after her marriage breakup in 2002. She noted she had continued to study up until 2005.
She stated she had gone to the hospital to attend to her mother in 2014 and was told she had to take her mother home. She said a doctor started yelling at her and she began crying. About a month later she took her mother home and one day after that she called Centrelink.
She told the Centrelink representative that she did not want to go to the Doctor because her last Doctor had upset her. The Centrelink representative then misunderstood what she said and thought she had said she was going to try to hurt herself and called the police who took her to Westmead hospital as already described.
She indicated she had not had any medical treatment since March 2015 because Comcare had withdrawn her funding
The applicant stated she is uncomfortable seeing Dr Singh, her reasons being that Dr Singh was paid by the government to treat her and the ATO was part of the government. The applicant had not gone back to Dr Singh.
In oral evidence to the Tribunal, she gave a guarded history and indicated that, in 1995, she can only recall one incident of depression and that was the post-natal depression. She stated she had other medical incidents including dermatitis and problems with her wisdom teeth. She stated that her sister did suffer from depression and that her grandparents were diabetics.
She conceded she could not recall telling the health professionals that she was prone to depression or maybe that may simply have been their assessment.
The applicant gave evidence that, after she had her baby, she recalled someone coming to her place to see the baby but did not recall anything in relation to her depression and she did not recall telling the health professionals about it after the pregnancy. In 1998, she again did not recall telling staff of her having a history of depression and she indicated in relation to all of the financial troubles between 2006 and 2010.

She was concerned about the bankruptcy notice and she was certainly concerned about selling properties for a loss. She conceded that she did suffer stress in 2003 but that related to her daughter being locked out of child-care .She recalled being prescribed Lovan and some other antidepressant and indicated she had not taken Lovan prior to 2004 and the work-related incident.
It was put to her at the November sittings that, in September 2004 when she went to seek medical assistance, there was no reference to workplace concerns and in April 2005, her GP, Dr Wall, had diagnosed depression due to the emotional burden from personal issues and also some issues at work. The personal issues related to her mother not feeling well and being too demanding as well as the applicant having mortgages and paying rent.
The applicant said she described the personal issues to her GP as she was told any work-related issues would not be valid, even though they were important to her. She said she had an instruction from her work that if she told the GP of the problems at work they (the ATO) wouldn't let her go.
This did seem, to the Tribunal, to be a rather convoluted and illogical statement.
The applicant stated in 2003 she saw Ms Pam Young, Psychiatrist, on a number of occasions because of the incident with her daughter. She can't recall how many times and said that Ms Young supported efforts to sponsor her brother to come to Australia.
She said she was concerned about her cancer returning, about the unreliability of her ex-husband and that she worked long hours and at a considerable distance from where she lived. She was shown the clinical notes from Dr Young in 2003 that made no mention of what the problems were.
It was pointed out to her that, in 2004 and 2005, she had advised that she thought initially the stress and depression might have been related to the back injury in November 2004, but later thought it may be related to her role at work. She agreed she had not lodged a workers compensation claim because she wanted to be sure it was work-related before she did. She was aware that she had been advised that her employers would have to be spoken to and she would need to get a report from a Doctor before any claim was accepted. She denied in cross-examination that the real issues of depression were not work-related.
Ms Farrelly's report of 1994 was shown to her where she had made a claim for occupational stress whilst at the CBA. As indicated earlier that report stated that despite her saying her marriage were satisfactory, people at work thought that she had domestic problems and that likely contributed to her depression and anxiety, as did her unhappy childhood, especially being offered up for adoption.
It was put to her that Ms Farrelly had said that she had never been a happy self-confident person. The applicant agreed that she was depressed then.( i.e. in 1994)
She could not remember her 1994 claim for stress and compensation from the CBA because it was too long ago. She stated she was being counselled because the manager was making things difficult for her. She stated that she had not told some professionals of her 1994 claim because it was denied and, accordingly she didn't think it was necessary to.
She further stated some professionals were not told about the postnatal depression because she didn’t categorise it as a psychiatric and she did not report it to Ms Young in 2003 because she didn't think it was relevant.
She stated, in relation to 2003, that she had checked her diary and that she had (not) found a record of treatment. However, she stated to the Tribunal that she now did recall seeing Ms Young.
The applicant had diary notes for a number of incidents, which were extrapolated and tendered in evidence before the tribunal.
Prior to the 2004 incident at the ATO, she stated that her life was good and that she was psychologically normal. It was put to her that, at that time she was seeing a psychologist and that this statement was incorrect.
The applicant said she did not recall seeing the Psychologist at that time. In answer to why she had not disclosed what practitioners she'd seen, she stated that she only gave the names of those that she could recall.
DISCUSSION AND DECISION
I have already set out what appears to be the agreed parameters in relation to this matter as far as the parties are concerned in paragraphs [15] to [28] above.
If the Tribunal is satisfied, on both the written and oral evidence, that the workplace incident continued to have an effect on the applicant from 13 April 2005 until the present time, or at least until the time the decision was made to stop paying benefits, then the applicant will succeed and the question of permanent disability will be considered. Her application for permanent impairment was what triggered the re-evaluation by Comcare.
If the injury she suffered, namely the workplace incident in April 2005, had ceased or been rectified and could no longer be said to be present, or had effectively been superseded by other incidents and was thus no longer effectively a cause of the applicant’s condition, then the determination of the respondent should be affirmed and the Tribunal does not have to consider any issues of permanent impairment (or indeed the issue of costs because costs will not flow to the applicant as a result of her being unsuccessful).
Respective Counsel for the applicant and the respondent made detailed submissions and quoted a number of cases where each party accepted the basic premises being made in relation to what those respective cases represent.
I have already commented on each submission and the basic premise which I believe each submission address.
It is often said, by at least one medical expert who gives evidence in these types of cases, that the medical evidence is only a guide as it is based on opinion and that, especially in areas concerning mental health and psychiatric conditions Consequently,, this area of medicine is not an exact science and there are many opinions.
The Tribunal was impressed with the written and oral evidence given by all the medical practitioners and health professionals who gave evidence. The Tribunal can understand the basic premises inherent in the evidence given by each of the main medical practitioners in this matter.
The Tribunal also had the benefit of hearing from the applicant over several days in August and November 2016. The applicant appeared to be doing her best to describe the various incidents and to answer questions put to her as best she could.
The Tribunal would not expect the applicant to be able to remember every name of every person who treated her and when they treated her, nor would it expect her to be able to recall and give details of exactly how each of the major events in her life panned out and what she told the various medical practitioners at the time.
It did appear to the Tribunal, however, that she was a guarded historian. It was quite apparent that, until August 2016, no one involved in this matter knew of the sexual assault incident.
It is clear that many of the health professionals were only given a limited history and that none of them would have had a full history until after August 2016. Prior to that date, some health professionals were told a greater history than others. Some, when one looks at the evidence that has been mentioned above earlier in this decision, were not told very much at all when they initially spoke to and assessed the applicant.
At the end of the day, the additional evidence only appears to have confirmed opinions although, clearly, it has added a few extra dimensions as far as several of the health professionals were concerned.
The Tribunal listened carefully to the evidence given by the applicant and observed her demeanour in the witness box. It is natural for someone in the applicant's position to try to put as best a spin on her evidence as possible and to so whilst remaining truthful.
Considering the written statements, the oral evidence of the applicant and her demeanour, the Tribunal is satisfied that the applicant, whilst certainly not misleading the Tribunal in any way, was trying to put on the best face possible. In doing so, the applicant was not volunteering all the information that she could have and was certainly a guarded and somewhat reluctant historian. She was not a particularly convincing witness.
The Tribunal would agree with those doctors who gave evidence that she did appear to overemphasise the problems of work and ignore the ongoing psychological problems she had since she was young.
Assessing all the evidence, the Tribunal is satisfied that the applicant suffered some very significant psychological issues and suffered these from the time she was a child growing up in the Philippines.
The Tribunal is satisfied that she had an unfortunate, unhappy life and that the key instances in her life which affected her were the separation of her parents, the fact that she was to be put up for adoption but then sent to live with relatives, that she suffered sexual abuse when she was nine and that she was, on occasions, beaten (although not apparently severely) by family members including her mother.
The Tribunal is satisfied that the applicant’s mother appeared incapable of giving her the normal love a mother would give a daughter and that she hardly knew her father. Also there appears to be one other family member who had depression. Further, when she went to Australia and married, her husband proved to be unfaithful and that marriage ceased in 2002. In that marriage she suffered some domestic violence, although not directly as her husband punched a hole in a wall of their home.
The Tribunal also notes problems with her mother after her mother came to Australia in 1995 and especially after her mother began living with the applicant, which culminated in more recent years when the mother had dementia causing further problems and stress to the applicant.
It is further noted that the applicant, in her positions at the ANZ bank, the CBA and the ATO had problems at work and that the claim to Comcare in 1994 was knocked back on the basis that the factual account given by the applicant was found to be unlikely and the account given by the other workers was the preferred account of what occurred.
The Tribunal is further satisfied that the account given as to the applicant's problems at the ATO was not disputed in terms of the facts, but there is no other evidence to indicate that it did occur exactly as she stated.
The ATO initially did not accept her complaint, but as a result of her subsequent medical history and negotiations, an agreement filed on 19 November 2009 and a consent judgement were made whereby the original decision was set aside and the Tribunal decided that “the applicant sustained an aggravation of major depressive disorder (the injury) on 13 April 2005 as a result of the audit incident which occurred during the course of her employment and the respondent is liable to pay compensation to the applicant pursuant to Section 14 of the SRC Act in respect of the injury”.
The Tribunal is also satisfied that, around late 2004 to early 2005, the applicant was not even certain that her problems were caused by issues with her work mates at the ATO and that they may well have been caused by the November 2004 incident when she injured her back falling out of a hammock.
The Tribunal is satisfied that, after 13 April 2005, the applicant was off work and was being treated. The applicant engaged in a partial return to work up until 2007 when she refused to go to work. The Tribunal is also satisfied that it appeared that, at some stage during this process, for a number of months, the depressive disorder (being the injury) was in substantial remission.
It appeared that re-entering into a working environment with other people had a deleterious effect and caused the applicant some further issues which led her to cease employment totally.
The Tribunal is satisfied that the applicant was affected by a series of other issues from 2007 onwards, including a promising relationship with a Philipino man, which did not proceed because the applicant felt that his motive was to use her to get Australian citizenship. Given that there had been a previous promising relationship in 2003 before her then-partner hit her daughter, the Tribunal notes that these incidents coincided with some significant problems the applicant appeared to face psychologically at the time.
It is also worth noting that when the applicant’s relationships were going well, her other problems seemed to largely subside regardless of what was occurring at work or elsewhere in her life at the time.
The Tribunal also notes the financial problems, including the fraud perpetrated on the applicant by her financial partner in 2006-7 and the various criminal acts committed against her during the home invasion in 2012. Additionally, the Tribunal notes the fact that, between 2010 and 2013, during visits to health practitioners, she did not complain of any flashbacks to the ATO and, that in 2014, the substantial problem seemed to relate to the stress involved in looking after her mother.
The Tribunal notes references she made to flashbacks at the ATO from 2014 onwards.
The Tribunal agrees with the evidence that the applicant does appear to be a very sad individual who has led an unhappy life due to her psychiatric condition. The Tribunal accepts that this condition has been present from early childhood and has manifested itself with real and imaginary problems that she has suffered in her relationships and interpersonal dealings, both socially and especially at work.
After considering all the evidence, the Tribunal accepts that the applicant has had a number of stressors in her life including the problems at the ATO which were accepted in 2009 as an aggravation of a major depressive disorder. The Tribunal prefers the evidence of Dr Hong and Dr Synnott and finds that the episode at the ATO effectively ceased, most likely sometime around 2010 or thereabouts, and that the other traumatic events took over as major current stressors after that time.
The Tribunal would include in those major current stressors, the stress caused to her by her mother, the stress in relation to her financial situation and the problems she had in relation to her financial dealings.
The Tribunal accepts that each traumatic event in her life, including the ATO incident, remains part of her psyche, but for all intents and purposes, the aggravation of the major depressive disorder that occurred at the ATO in 2004-2005 which was, to an extent, reactivated by attempts to get her back to work in 2006-2007, had ceased to be an issue, certainly by 2010 to 2013, and had been replaced by other more recent stresses.
Accordingly, it is the decision of the Tribunal that the determination made by the respondent is affirmed.
As a result of this decision, it becomes unnecessary to decide whether the applicant has a permanent impairment and there is also no need for the Tribunal to decide or comment on the issue raised by the applicant as to costs.
The decision under review is affirmed.

I certify that the preceding 325 (three hundred and twenty -five) paragraphs are a true copy of the reasons for the decision herein of

................................[sgd]........................................
Associate
Dated: 28 April 2017

Dates of hearing: 3, 4 and 5 August 2016, 18, 21 and 22 November 2016

Date final submissions received: 29 November 2016

Counsel for the Applicant: Mr J Mrsic

Counsel for the Respondent: Ms D Tucker

Solicitors for the Respondent: Mr B Dean, Australian Government Solicitor

[2017] AATA 563

28 April 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Statutory Construction

Appeal

Dates of hearing:	3, 4 and 5 August 2016, 18, 21 and 22 November 2016
Date final submissions received:	29 November 2016
Counsel for the Applicant:	Mr J Mrsic
Counsel for the Respondent:	Ms D Tucker
Solicitors for the Respondent:	Mr B Dean, Australian Government Solicitor