Djambazi and Comcare (Compensation)

[2019] AATA 218

Djambazi and Comcare (Compensation) [2019] AATA 218 (22 February 2019)

Division:GENERAL DIVISION

File Number(s):      2016/5548

Re:Hrisoula Djambazi

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:22 February 2019

Place:Sydney

The reviewable decision dated 1 September 2016 is affirmed.

.................................[SGD].......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Respondent previously accepted liability for Adjustment Reaction with Mixed Emotional Features - whether the Respondent is presently liable to pay medical expenses and incapacity payments in respect of previously accepted liability – whether Applicant continued to suffer from a diagnosable psychiatric disorder – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

22 February 2019

The question to be decided

1. The question that has to be decided in this case is whether on 12 July 2016 or thereafter, Comcare was liable to pay Ms Djambazi medical expenses and incapacity payments in respect of an Adjustment Reaction with mixed emotional features for which Comcare had previously accepted liability.

2. The reviewable decision was dated 1 September 2016. It affirmed the determination dated 12 July 2016 which found that Ms Djambazi had no present entitlement to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

   A brief history

3. Ms Djambazi was born in Bulgaria in 1962.  She commenced employment at SBS on 14 April 1987 on a casual basis and obtained a full-time position on 21 September 1995.  On 9 August 2012, Ms Djambazi lodged a claim for workers’ compensation. On 27 November 2012, the Respondent accepted the Applicant’s claim for Adjustment Reaction with Mixed Emotional Features.  Her illness arose from actions taken by her then supervisor in mid-2012. The Respondent accepted that those actions did not constitute reasonable administrative action. 

4. Ms Djambazi’s employment was terminated on 12 October 2012 because on 3 September 2012 she was overseas and failed to attend a medical appointment that had been made by her employer. The medical appointment was made in relation to her extending her paid personal leave for health reasons. She has not worked since. She lodged an unfair dismissal claim in October 2012 which was settled in February 2013.    

   Did Ms Djambazi suffer from a psychiatric condition on or after 12 July 2016?

5. Comcare argued that there was no current medical evidence that Ms Djambazi suffered from an Adjustment Disorder or any other diagnosable psychiatric condition, relying on the evidence of Doctors Lee and Lewin, psychiatrists.

6. Counsel for Ms Djambazi argued that the evidence of Dr Stepan, her treating psychiatrist, established that she continued to suffer from Adjustment Disorder and the reports of Doctors Lee and Lewin, when properly construed, did not support Comcare’s claim.   

7. The Tribunal heard oral evidence from Dr Lewin.  Written reports were available from Doctors Lewin, Lee and Stepan and from Dr Das, psychiatrist, who had assessed Ms Djambazi in December 2014.

8. Dr Stepan was Ms Djambazi’s treating psychiatrist from 3 July 2012 until September 2016.  Ms Djambazi said that she stopped seeing Dr Stepan because she could not afford to and he told her that he could do nothing for her without her undergoing rehabilitation. There were several reports from Dr Stepan in evidence. The most recent was dated 14 February 2018.  It was prepared in response to questions asked by Ms Djambazi’s solicitor.  Dr Stepan did not consult with Ms Djambazi for the purpose of preparing that report.  His evidence is consistent.  His diagnosis is Adjustment Disorder which is directly related to work injury of 17 February 2012.

9. In his report dated 17 December 2014, Dr Das diagnosed adjustment disorder with mixed emotional features of mild-to-moderate severity that was precipitated by the circumstances at work preceding and around June 2012.  He reported that Ms Djambazi’s thought content revolved around her sense of loss in relation to her job.  He found that there was no incapacity for work and that she was fit to return to work in a similar role.  He thought monthly supportive psychotherapy was appropriate.   

10. Dr Lee assessed Ms Djambazi on 11 January 2016 and prepared a report of the same date.  He reported that Ms Djambazi lived with her 92-year-old mother, 25-year-old son and a companion aged 67.

11. Under the heading “Presenting Complaints”, Dr Lee wrote:

    Ms Djambazi states that she would only agree to rehabilitation if it were appropriate to return her to a senior journalist position. Currently, she is too busy caring for her mother to undertake such training, so this would be unrealistic.

12. Dr Lee reported that Ms Djambazi told him that her employment had been terminated for misconduct because she missed an appointment made by her employer with a psychiatrist because she was overseas. He reported numerous criticisms Ms Djambazi made of two attempts at rehabilitation and outlined her requirements for rehabilitation. Dr Lee then wrote:

    She said that even if she were granted the appropriate training, currently her mother is too ill for her to pursue anything realistically. Her mother was diagnosed with breast cancer in March 2015 and dementia in August 2015. Her mother depends on her and does not want anyone else to look after her. That keeps her very busy. A neurologist has suggested that she attend Alzheimer’s courses and accompany her mother for respite assessment but she has not done these courses nor taken her mother for the assessment “because she gets so upset”. Her mother has been hospitalised twice for three falls and Miss Djambazi feels obligated to look after her mother.

13. Under the heading “Mental State Examination”, Dr Lee reported:

    There is no evidence of psychosis nor was there evidence of depressed mood or clinically significant anxiety. Her main concerns were a sense of injustice by SBS, dissatisfaction with her rehabilitation and she frankly described her need to assist her mother with cancer and dementia.  There was no objective evidence of inability to function and she was passionate in her desire to be rehabilitated to work as a senior journalist with another organisation, requiring significant training.

14. In response to a direct question about her fitness for work, Dr Lee stated that:

    Currently, there is no evidence of a diagnosable psychiatric condition which would make her unfit to work.

15. He listed three barriers to her working, and concluded:

    These are not barriers on the grounds of psychiatric disorder as opposed to situational issues and perceptions.

16. Dr Stepan wrote a report dated 24 March 2016, having considered Dr Lee’s report.  He wrote:

    In my professional opinion Ms Djambazi has ongoing Adjustment Disorder, as the initial stressor since June 2012 is continuing.  There is deep distrust of SBS.

    The current treatment is supportive therapy and coping strategies to prevent deterioration in her condition.  This is monthly ongoing.

    Ms Djambazi would like to have rehabilitation so as to return to her pre injury duties.  A mature rehabilitation provider would be appropriate.

    Unfortunately at present she is unable to undergo rehabilitation as she cares for her aged mother who has cancer and dementia.

17. Dr Lewin assessed Ms Djambazi on 31 March 2016 at the request of the Respondent and prepared a comprehensive report of the same date. He prepared a supplementary report dated 10 July 2017 which considered further documentation provided by the Respondent’s legal advisers.  On 16 April 2018, Dr Lewin reassessed Ms Djambazi and wrote a report of the same date, taking into account further documentation that had been provided to him by the Respondent’s legal advisers and documentary material provided by Ms Djambazi.

18. Dr Lewin did not diagnose any psychiatric condition when he assessed Ms Djambazi in 2016 or in 2018.  Documentation provided to him did not cause him to alter his opinion.   He accepted that Ms Djambazi had previously suffered from Adjustment Disorder and acknowledged that she reported anxiety symptoms such as avoidance and concerns about workplace conflict and noted that she had become locked in conflict with her former employer, but he considered that those features were insufficient to diagnose any psychiatric condition.

19. In response to Dr Lewin’s 2016 report and at the request of Dr Stepan, on 26 May 2016, Ms Djambazi:

    compiled a chronology of events with documents to demonstrate that HR never deviated from their goal to crush me, play games with me and humiliate me. Their attitude has always been confrontational and vindictive, including the numerous rehabilitations. There has been not one single gesture of goodwill on their behalf. HR must feel they are untouchable as they are not accountable to anyone for their actions against me over the last four years.[1]

    [1] PT77 pp 432 to 437.

20. The chronology was five pages long and Ms Djambazi provided supporting documents. She critiqued Dr Lee’s report and requested an extension of time within which Dr Stepan would provide his report.

21. Dr Stepan provided a report dated 13 June 2016. He stated that his consistent diagnosis throughout the period he had been treating Ms Djambazi was Adjustment Disorder with mixed anxiety and depressed mood (DSM-V).  He referred to earlier reports he had written and continued:

    During my consultations with Ms Djambazi over four years (initially weekly and monthly in recent years) the History has been of bullying and harassment at Wfork.

    This has been continued by the lack of an arms length/independent HR.

22. He criticised the rehabilitation that had been offered, the delay in supplying a Statement of Service which was incorrect, and the failure to provide an appropriate reference. He wrote:

    It was clear that she could not return to SBS and there were no other jobs available which suited her abilities and vocation. This work was her life.

23. Dr Stepan referred to the second last sentence in the following passage from Dr Lewin’s 2016 report:

    In 2012, the employer accepted the diagnosis of an Adjustment Disorder. That diagnosis implies a short-term reaction to a distressing experience. If it is assumed that the employer is not deliberately setting out to harass, humiliate and confuse Ms Djambazi in order to make her sick then the symptoms she describes would be considered part of an ordinary human reaction such as anger and distress rather than features of a mental illness. If it is shown that there is a factual basis to all the complaints made by Ms Djambazi, then her current emotional complaints would be considered to be evidence of a current Adjustment Disorder. In the absence of such a conclusion I did not diagnose a current psychiatric illness. (Emphasis added.)

24. Dr Stepan then listed the symptoms of her current Adjustment Disorder:

    -poor concentration

    -low motivation

    -low self-esteem

    -poor sleep

    -greatly reduced social life

    -preoccupation with SBS

    -lowered status in the Greek Community and avoidance of social situations

    -comfort eating causing overweight

    -lack of exercise

    -ability to do only simple functions of everyday life

    -driving is limited to local only, during quiet periods.

25. In his one and a half page report dated 4 July 2016, Dr Stepan confirmed his current diagnosis of Adjustment Disorder, referred to the “outline of events” prepared by Ms Djambazi at his request and stated:

    This represents “the factual basis to all her complaints” made to Dr Lewin, which if he had before him at his examination, would have diagnosed a current Adjustment Disorder.

26. He repeated the balance of the passage in Dr Lewin’s report that he had referred to in his June 2016 report.  Dr Stepan stated that the events in the outline had been discussed at length during medical appointments and that those events had reaffirmed Ms Djambazi’s belief that first arose from the incidents for which liability was accepted, that she is a worthless journalist.  He wrote:

    Most significant events have been refusal to provide a true and timely Statement of Service, payments due, as well as refusal to consider rehabilitation in her profession, and delayed and protracted rehabilitation measures.

    Treatment needs to continue monthly to maintain present function.

    This will aim at acceptance of what is possible and to maximise fulfilment of life in the present.

27. In his one page report dated 14 February 2018, Dr Stepan:

    ·stated that he had “carefully read” Dr Lewin’s report of 31 March 2016,

    ·referred to his 4 July 2016 report “as treating psychiatrist to Comcare”,

    ·stated that the diagnosis of Adjustment Disorder was directly related to work injury of 17 February 2012 which was accepted by Comcare until 12 July 2016,

    ·stated that there is a psychological injury, which if proven to be related to ongoing Bullying and Harassment by SBS would fall in the diagnosis of Chronic Adjustment Disorder; and

    ·the injury has given rise to workers incapacity for employment.

28. Mr Latham, counsel for Ms Djambazi, referred to Dr Lee’s opinion that that there was no evidence of a diagnosable psychiatric condition which would make Ms Djambazi unfit to work.  Mr Latham argued that Dr Lee did not appear to determine whether or not Ms Djambazi had a psychiatric condition and “his conclusion seems to be predicated upon his conclusions as to her unwillingness to work”.

29. The Tribunal does not accept Mr Latham’s submission. Ms Djambazi had been referred to Dr Lee:

    For psychiatric assessment in regard to her fitness for work, to undertake a rehabilitation program, her monthly consultations with Dr Stepan and the option of clinical psychological CBT sessions and a weight loss program to address her self-esteem.

30. Dr Lee made clear findings under the heading “Mental State Examination” that there was no evidence of psychosis, depressed mood or clinically significant anxiety. That is, he did not find evidence of two of the symptoms Dr Stepan specified in his diagnosis of Adjustment Disorder with mixed anxiety and depressed mood. (Emphasis added.)  He also made a finding that there was no objective evidence of inability to function.

31. It is clear from Dr Lee’s report that he found that there was no evidence that Ms Djambazi suffered from a diagnosable psychiatric condition.

32. Mr Latham focussed on the second last sentence highlighted in the passage from Dr Lewin’s 2016 report which is set out above in paragraph 23. He cross-examined Dr Lewin extensively.

33. Mr Latham put the following argument. Dr Lewin assumed that Ms Djambazi’s account of her treatment by her employer was incorrect, had admitted that he did not know whether or not it was correct, and had failed to justify his conclusion. Therefore, his opinion was no more than a guess.  Further, Dr Lewin accepted that Ms Djambazi had symptoms that were out of proportion to the stressor, including sadness, and hopelessness, and he readily accepted that she had symptoms of depression and anxiety.  If Dr Lewin’s assumption that the history of her treatment was not true, he had no basis for his conclusion that she did not suffer from Adjustment disorder.  Mr Latham also submitted that Dr Lewin agreed that Ms Djambazi did suffer from Acute Adjustment Disorder with anxiety.

34. The Tribunal does not accept Mr Latham’s arguments.  Dr Lewin accepted that Ms Djambazi had suffered from Acute Adjustment Disorder with anxiety.  He made it clear that apart from her intense distress when talking about employer related issues, Ms Djambazi was symptom free and functioned normally. In Dr Lewin’s opinion, Ms Djambazi had developed a preoccupation with feeling of injustice. He thought it possible that her distress would diminish once these proceedings have concluded.  He thought it unlikely that any further outpatient psychotherapy or pharmacotherapy is needed.   He stated clearly that she did not satisfy DSM-4 or 5.[2]  He did not find evidence of Adjustment Disorder.  He also considered Major Depressive Disorder, PTSD and Paranoid Disorder but did not consider that she satisfied the diagnostic criteria for any of those conditions.

    [2] Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.

35. The Tribunal prefers the opinions of Doctors Lee and Lewin to that of Dr Stepan.  It acknowledges that Dr Stepan had been her treating doctor since July 2012, but found the consideration of Doctors Lee and Lewin more comprehensive and persuasive.  Minor inconsistencies about Ms Djambazi’s history reported by Doctors Lee and Lewin did not detract from their opinions. 

36. The Tribunal has also taken into account Dr Das’s diagnosis at the end of 2014 of adjustment disorder with mixed emotional features of mild-to-moderate severity and his opinion that there was no incapacity for work at that time.  Of Doctors Stepan, Das, Lee and Lewin, only Dr Stepan found that Ms Djambazi was incapacitated for work. Those findings reinforce the Tribunal in preferring the opinions of Doctors Lee and Lewin to that of Dr Stepan.   

37. The Tribunal finds that Ms Djambazi did not suffer from a diagnosable psychiatric disorder, including an Adjustment Reaction with mixed emotional features and Adjustment Disorder with mixed emotional features, on 12 July 2016 or thereafter.  It is therefore unnecessary to consider issues relating to medical treatment and incapacity.

38. The Respondent is not liable to pay Ms Djambazi compensation pursuant to sections 16 or 19 of the SRC Act on 12 July 2016 or thereafter.

    Conclusion

39. For the above reasons, the reviewable decision dated 1 September 2016 is affirmed.

I certify that the preceding 39 (thirty - nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[SGD].......................................

Associate

Dated: 22 February 2019

Date(s) of hearing:	3 & 4 December 2018
Counsel for the Applicant:	Mr I Latham
Solicitors for the Applicant:	Mr H Macken, Beston Macken McManis
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Ms A Fernandes, Sparke Helmore Lawyers