Ferrini and Comcare
[2010] AATA 276
•20 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 276
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4714
) 2009/2199
GENERAL ADMINISTRATIVE DIVISION ) Re LUCIANA FERRINI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr P. Wilkins, MemberDate20 April 2010
PlaceCanberra
Decision The decisions under review are affirmed. ...................[sgd]...................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - psychological injury - claim for incapacity and medical treatment expenses - involuntary redundancy - private consulting business - history of RSI and psychological symptoms - issues of credit - decisions affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 7, 16, 19
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Smith v Federal Commissioner of Taxation (1987) 164 CLR 513
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Briginshaw v Briginshaw (1938) 60 CLR 336
Jones v Dunkel (1959) 101 CLR 298
Bater v Bater [1950] 2 All ER 458
Re Ferrini and Comcare [2003] AATA 1137
REASONS FOR DECISION
20 April 2010 Mr S. Webb, Member
Dr P. Wilkins, Member1. Luciana Ferrini was employed by the Australian Tax Office (the ATO). She made a number of claims for compensation, the most recent of which concerned incidents that occurred during a return to work program. The claim was accepted and compensation was paid for incapacity and medical treatment expenses. Subsequently, Ms Ferrini’s employment was terminated. Comcare determined that Ms Ferrini was not entitled to incapacity payments thereafter and, later, determined that Ms Ferrini was not entitled to compensation for incapacity, medical treatment expenses and permanent impairment. Ms Ferrini challenged these determinations, thus far without success.
2. We were informed at the outset of the hearing that Ms Ferrini has withdrawn her claim for permanent impairment (application number 2009/0254). Thus, we will not address that matter in this decision. Furthermore, we were informed that Comcare does not cavil with Ms Ferrini’s psychological injury that was accepted on 25 January 2008 as a result of alleged incidents on 8 March and 8 May 2006.[1] The two reconsideration decisions before us concern:
(a)Ms Ferrini’s entitlement to incapacity payments as a result of the accepted psychological injury from 18 June 2007,[2] and
(b)her entitlement to compensation for incapacity and medical treatment expenses in relation to the accepted injury from 30 October 2008.[3]
[1] T29.
[2] T46.
[3] BT11.
These are the issues we must determine.
3. Ms Ferrini asserts that she continues to suffer from the effects of the accepted psychological injury. In her submission the injury caused the onset of a chronic psychological condition that combines elements of anxiety and depression. She says that this condition rendered her unfit for work and required medical treatment before and after the termination of her employment with the ATO on 18 June 2007.[4] In her submission, the only significance of that date is that on that day she lost her job against her will. She informed us that the psychological condition presently persists and it is directly attributable to her previous employment. She relies on the evidence of her treating doctors, including Dr Mark Ryan, a psychiatrist, as well as specialist doctors who have examined her for the purposes of these proceedings, particularly Dr Christopher Aristides Canaris, a consultant psychiatrist. In Ms Ferrini’s submission the preponderance of the medical evidence is that the depressive disorder she suffered as a result of the injurious events in her previous employment has not resolved and it has at all relevant times rendered her partially or totally unfit for work, and it has required medical treatment. Ms Ferrini says that her efforts to start a private consulting business are beside the point; this merely indicates her effort to obtain a source of income doing work that is appropriate to her skill set, having failed to obtain any lasting paid employment in competitive processes on the open market.[5] In Ms Ferrini’s submission her failure to obtain paid employment was the result of her physical and psychological work injuries.
[4] Exhibits A4 and A5 refer.
[5] Exhibit A2 refers.
4. Ms Ferrini denies that her previous medical history has any bearing on the issues in these proceedings. She asserts that she was psychologically well in the period immediately prior to her injury. She accepts that she was returning to work following a long period of absence as a result of a repetitive strain kind of injury and that she has experienced, and continues to experience flare ups of that condition from time to time. But in her submission this physical condition is not the source of her incapacity and her need for medical treatment of a psychological character following the cessation of her previous employment in June 2007.
5. In sum therefore, Ms Ferrini presses her claim and says that she is entitled to compensation for incapacity and medical treatment expenses resulting from her psychological injury arising from incidents in March and May 2006.
6. We do not agree.
7. Compensation for incapacity is to be determined under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Under that section, Comcare is liable to pay compensation for incapacity as a result of an ‘injury’ as defined in section 4 of the Act then in force. The ‘injury’ in this case is said to be the injury for which Comcare accepted liability on 25 January 2008.[6] Thus, it is necessary to determine whether the incapacity claimed is ‘as a result of’ that injury. The phrase ‘as a result of’ imports a concept of causation that is well understood in the law. It refers to an operative cause that is not confined to the immediate proximate cause of incapacity; it imports a test of causal connection that requires a commonsense evaluation of the causal chain that is said to link the claimed incapacity and the injury.[7] Furthermore, it can be accepted, and it is well established law, that the particular formulation ‘as a result of’ does not impose a sole cause test.
[6] T29.
[7] Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
8. Compensation for medical treatment is to be determined under section 16 of the Act. Under this section Comcare is liable to pay the cost of medical treatment obtained in relation to Ms Ferrini’s accepted injury. The phrase ‘in relation to’ is essentially relational rather than causal. It has a wide meaning and the phrase simply signifies that there is some connection between two matters.[8] In this case the relational connection to be established is between the medical treatment obtained and the accepted injury. The particular connection required is a matter of degree.[9] The closeness of the connection must be ascertained “by reference to the nature and purpose of the provision in question and the context in which it appears”.[10] In the present statutory context, the formulation is to be given a wide and beneficial interpretation that is consistent with the beneficial nature of the Act and the compensation scheme it provides. Thus, liability to pay for medical treatment under section 16 is not confined to treatment ‘of’ or ‘for’ an injury, but extends to treatment ‘in relation to’ an injury.
[8] Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 at 533; Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 487.
[9] O’Grady v Northern Queensland Co. Ltd (1990) 169 CLR 356 at para 10.
[10] PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313.
9. These tests of cause and relationship are to be determined as a matter of probability, applying the reasonable satisfaction civil standard; mere possibility is not sufficient, even if the possibility is real rather than fanciful. Reasonable satisfaction should not result from indefinite evidence or indirect inferences.[11] The balance of probabilities test does not authorise us to choose between guesses, on the ground that one guess seems more likely than another.[12] Nevertheless, as Lord Denning observed “in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard”.[13]
[11] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.
[12] Jones v Dunkel (1959) 101 CLR 298 at 305.
[13] Bater v Bater [1950] 2 All ER 458 at 459.
10. Applying these tests, we are reasonably satisfied that Ms Ferrini is not entitled to compensation for incapacity from 18 June 2007 and she is not entitled to payment of medical treatment costs from 30 October 2008. We note that these dates are simply the dates on which determinations were made by Comcare ceasing payment of the particular compensation in respect of Ms Ferrini’s accepted injury.
11. While it can be accepted that Ms Ferrini has suffered varying degrees of incapacity for work as a result of medical conditions that afflict her, and those conditions have required medical treatment from time to time, it does not follow that the incapacity and the medical treatment are compensable under the Act. We are reasonably satisfied that her claimed incapacity does not result from an injury in March or May 2006 and that the medical treatment she obtained was not treatment obtained in relation to any such injury.
12. There is abundant medical and other evidence that Ms Ferrini suffered from two significant conditions that were operative prior to and during the period in which she asserts she was injured at work in 2006.[14] Specifically, Ms Ferrini has a long history of pain symptoms apparently as the result of a repetitive strain injury more than 30 years ago; she also has a long history of anxiety and depression. We note that Ms Ferrini disputes that she was suicidal and was hospitalised at the Callan Park Hospital in 1979. It is not necessary for us to make any findings about this as it is not determinative of the matters we must decide. It is relevant to observe, however, that Ms Ferrini has obtained medical treatment for her pain disorder and anxiety and depression from time to time over many years and she has made several compensation claims arising from flare-ups of these conditions in the context of employment over time.
[14] See T6 folios 31-32; Re Ferrini and Comcare [2003] AATA 1137 at [23], for example.
13.
In August 2005 Ms Ferrini commenced a graduated return to work at the ATO following an extended period of total incapacity as a result of a work-related aggravation of her pain condition. We note in passing that prior to commencing the graduated return to work Ms Ferrini moved from Canberra to live on the coast. In order for her to comply with the return to work program it was necessary for her to commute to Canberra, which she did until she was transferred to the ATO’s Hurstville office in January 2006. The clinical notes of her treating general practitioner, Dr Ann Richardson, during the period from 27 October 2005 to
26 February 2006 reveal that Ms Ferrini experienced difficulties with her return to work and her rehabilitation provider,[15] she was prescribed antidepressant medication (Efexor XR) and she consulted a psychologist on a weekly basis.[16] It appears that Ms Ferrini found the return to work process stressful.[17] On 24 November 2005
Dr Richardson noted “much calmer todat [sic] but episodes of panic attacks”.
On 1 December 2005 the doctor noted “less anxious less tremor but feels calmer doesn’t feel has translated into workplace finds meetings traumatic”. On 8 December 2005 Dr Richardson noted “improvement at work on Monday received an apology about being stressed”. Dr Richardson’s remaining notes for this period do not refer to psychological symptoms or difficulties at work, although Dr Richardson wrote a letter of referral to Dr Ryan on 23 February 2006. At or about this time, on Ms Ferrini’s evidence, it appears that she sought out a new general practitioner in Wollongong, being closer to her home at Shell Cove.
[15] Exhibit R2; Exhibit R3, clinical note 27 October 2005.
[16] Exhibit R3, clinical note 27 October 2005.
[17] Exhibit R3, clinical notes 14 and 24 November 2005.
14.
It was in this context that Ms Ferrini first consulted Dr Ryan on 23 February 2006. Dr Ryan’s evidence is that she suffered from a chronic pain syndrome and
“a mixed anxiety/depressive illness that has run a fluctuating course over the time she has been seeing me”, “When Ms Ferrini first consulted me her base line of anxiety, while elevated, was probably at a level that she often experienced over the years and this probably reflects her personality style and development of [sic – developmental] experiences”.[18] On 26 June 2006 Dr Ryan reported to
Dr Richardson:
The Efexor you prescribed in November 2005 has helped the anxiety she was experiencing. This anxiety was in part triggered by the commute to Canberra since September 2005. Additionally she experienced the work as stressful and she felt she was not capable of the particular work she was allocated. She indicated that her then manager understood her difficulties and facilitated her transfer to her current position at Hurstville, where the duties were more in keeping with her skill base and experience.[19]
[18] T25 folio 113.
[19] T7 folio 37.
15. Dr Ryan’s clinical notes in respect of the 23 February 2006 consultation do not indicate that Ms Ferrini was experiencing any conflict or difficulty in her placement at Hurstville at that time:
later tx [transfer] Hurstville, Jan 2006
much better placement re work
more confident this will work
good work relationships
work itself more appealing
– adjustment to new info
enjoying it etc[20]
[20] Exhibit R6
Dr Ryan recorded a Hospital Anxiety and Depression Scale (HADS) score of 13 in respect of anxiety and 1 in respect of depression. Dr Ryan noted that “Efexor XR 150 – helped a lot ↓ anxiety, much less reactive irritable distressed” and recorded that
Ms Ferrini was “coping with pain + distress”.
16.
We note that the HADS score is derived from a questionnaire that is completed by the patient; it is, in effect, a self reporting tool. The score has two components: an anxiety score and a depression score. As we understand it the anxiety score refers to a 21 point scale. On Dr Ryan’s evidence an anxiety score
of 13 is clinically significant and would require treatment.
17.
It appears that on 3 March 2006 Ms Ferrini consulted Dr Alison Tomlin,
a general practitioner in Wollongong, in relation to “Anxiety/Depression”; the doctor wrote a referral to Dr Adrian Knox and continued her Efexor XR prescription.[21]
[21] Exhibit R5.
Ms Ferrini consulted Dr Ryan again on 5 March 2006. Dr Ryan noted:
work stress – ↑ anxiety
–work restrictions don’t fit in with team requirements
aim 75% computer work eventually
gradual return to work & activity
–stressed; tired – no energy
fatigue
mood easily down; feels easily overwhelmed; “fed up”
mind busy +++
value stay in job ~ 12/12
? where then
just do it, rather than think about Θ self critical thoughts re work performance
→ historically low confidence[22]
[22] Exhibit R6.
Even though Dr Ryan did not record a HADS score for Ms Ferrini in this clinical note, he did record that her level of anxiety had increased and that he increased the dosage of Efexor XR from 150 mg per day to 225 mg per day. Thus it can be inferred that Ms Ferrini’s anxiety level was greater than the HADS score of 13 Dr Ryan noted on 23 February 2006. Plainly enough the doctor considered the elevation to be sufficiently significant to justify increasing Ms Ferrini’s prescribed dosage of
Efexor XR. We so find.
18. Therefore, on the evidence of Dr Richardson, Dr Ryan and Dr Tomlin it can be accepted that Ms Ferrini was suffering clinically significant anxiety with symptoms of depression in the context of her return to work program in October, November and December 2005; her symptoms may have reduced somewhat with Efexor XR treatment from November 2005, but they remained clinically significant and elevated in the period to 5 March 2006. It is tolerably clear to us and we find that Ms Ferrini’s psychological symptoms at this time arose in the context of her return to work program, being triggered by the requirement for her to commute to Canberra and then persisting in relation to her concerns about her work performance in relation to team requirements.
19. We note in passing that it appears that Ms Ferrini was examined and assessed by Dr Inglis Howe Synnott on 6 February 2006, but no report of this assessment is in evidence.[23]
[23] A report by Dr Synnott dated 20 March 2007 is at T22.
20.
Ms Ferrini asserts that a fresh injury occurred as a result of subsequent incidents involving her manager, Ms Naomi Robinson and a workshop facilitator,
Ms Roslyn Merten. The first incident is said to have occurred on 8 March 2006 and allegedly involved an incident in which Ms Merten shouted at her in front of work colleagues. We note that two people identified by Ms Ferrini as witnesses to the incident did not support Ms Ferrini’s version of events.[24] It appears that Ms Ferrini lodged an incident report concerning this incident on 16 May 2006.[25] As it appears to us it is tolerably clear that the incident occurred, at least to the extent that Ms Merten raised her voice to Ms Ferrini in front of others. It also appears that an investigation was commenced by Ms Robinson into Ms Ferrini’s report of an alleged security breach.
[24] T11 folios 59-62.
[25] T4 folios 8-13; T11 folio 54 refers.
21. On Dr Synnott’s evidence, Ms Ferrini referred to this incident as a “watershed incident”, and she was “baffled and distressed” by it.[26] Dr Ryan did not refer to this alleged incident in his clinical notes on 30 May 2006 or 20 June 2006,[27] or in his reports dated 26 June 2006 and 24 October 2006.[28] In a hand-written annotation to that latter report in October 2006, Dr Ryan referred to a “specific incident on 4/4/06 and ongoing interactions since then”.[29] Subsequently, Dr Ryan noted details of the alleged incident on 8 March 2006 in his clinical notes on 16 January 2007,[30] and referred to Ms Ferrini’s account of the incident in his report dated 12 April 2007, observing that Ms Ferrini “found that [first] incident disturbing and unfair especially as subsequently and particularly on the 8th May, 2007 [sic – 2006] she alleges her manager Naomi Robinson had been critical, negative and unsupportive of her in relation to that incident and that the latter had also repeatedly criticised her work performance”.[31] In relation to this later ‘incident’ in May 2006 Dr Synnott reported:
In May 2006, Ms Ferrini was criticised by her manager (N.R.) and since that time the criticism has continued. Ms Ferrini claims her work was “being picked to bits” and N.R, was “finding little things” and petty things to criticise Ms Ferrini – and “everything I do is wrong” and being criticised by N.R.
Ms Ferrini was of the opinion that, possibly, she may have been “set up” by N.R. who was deliberately finding fault.
…
Ever since the incident of 8 March 2006, NR had refused to have any contact or talk to Ms Ferrini – and the workplace had been difficult because of the tension and the attitude of R.N. [sic] towards Ms Ferrini.[32]
[26] T22 folio 94.
[27] Exhibit R6.
[28] T7 and T9 respectively.
[29] T16 folio 71.
[30] Exhibit R6.
[31] T25 folio 111.
[32] T22 folio 94.
22. Dr Canaris reported that Ms Ferrini “felt quite shocked, embarrassed, and humiliated by the vehemence of [Ms Merten’s] response” and her “work came under continuing scrutiny and frequent criticism [from that point on]”: “She spoke of withering criticism ‘throughout and it got to the stage that I was terrified to send stuff to her [Naomi]’”.[33]
[33] CT11 folio 98.
23. On 26 June 2006 Dr Ryan reported Ms Ferrini’s account of difficulties in the workplace in the following terms:
Unfortunately work experiences at this placement at Hurstville have resulted in increasing conflict with her manager such that she feels increasingly criticised and harassed. She is now the subject of an internal investigation instigated by this manager. She told me that her work performance has been criticised by this manager and Luci feels under threat of demotion and even sacking. Over the time of the placement at Hurstville Luci has become increasingly more anxious, including experiencing panic attacks which are triggered by thoughts about the manager and thoughts about passing onto that manager her completed work for review and assessment by her.[34]
[34] T7 folio 37.
24. There is no direct reference to the first alleged incident in Ms Linda Yeomans’ report of 23 June 2006. Ms Yeomans’ reported Ms Ferrini’s account of her difficulties with Ms Robinson as follows:
She explained that over the past few months, it gradually became apparent that she was not meeting the expectations of the supervisor though she was not clear as to why. She feels that she has not really received a thorough assessment of her competency level so she is uncertain exactly what level to work towards.[35]
[35] T6 folio 32.
Ms Yeomans reported a misunderstanding between Ms Ferrini and another work colleague, in relation to which Ms Yeomans reported that Ms Ferrini had requested a mediation process – “She agrees that she would be happy to provide an apology and is hopeful that this misunderstanding can be put behind them so that she is able to work with this colleague”.[36] It is not clear whether this ‘misunderstanding’ involved Ms Robinson, although that is likely in our view: Ms Ferrini and Ms Robinson were involved in a mediation process in July 2006.
[36] T6 folio 35.
25.
On 21 July 2006 Dr Kipling Walker, a consultant psychiatrist, reported on
Ms Ferrini. He recorded a history of the first incident and reported that in response Ms Ferrini was “stunned, taken back and thrown Ms Merten had not spoken to her for the last three and a half months. Things had gone down hill at work since then”.[37] With regard to Ms Ferrini’s relationship with Ms Robinson, Dr Walker reported that “She worried about Naomi Robinson getting to her. She was distressed by her worries about Ms Robinson”. [38]
[37] T8 folio 42.
[38] T8 folio 42.
26. On this evidence it is plain enough that events in Ms Ferrini’s work placement at Hurstville caused her to experience concern, distress and tension. She consulted Dr Ryan on 23 February 2006, 5 March 2006 and from 30 May 2006 on a monthly basis until August 2007; the doctor reported that Ms Ferrini’s symptoms of anxiety followed a fluctuating course “in response to variation in the stress of her interaction with her current manager and whether she has been on leave, that is, has been away from the work place”.[39] Ms Ferrini consulted doctors in Wollongong over the same period, but the clinical notes contain only one reference in 2006 to psychological symptoms: 3 March 2006.[40]
[39] T9 folio 48.
[40] Exhibit R5.
27. The significance of these work issues in relation to Ms Ferrini’s psychological condition and her related symptoms is a matter about which medical opinions diverge. Dr Ryan and Dr Canaris are firmly of the view that these issues had a significant and enduring effect, increasing Ms Ferrini’s symptoms of anxiety and depression, and rendering her unfit for work. Dr Phillip Brown agrees to the extent that the work issues caused a reactive disorder of short duration,[41] but his evidence suggests that the reaction may have arisen from a pre-existing pain-related somatoform disorder and Ms Ferrini’s incapacity was the result of subsequent and different reactive episodes.
[41] Exhibit R7.
28.
This is a difficult issue. Weighing all of the medical evidence, we are reasonably satisfied and find that Ms Ferrini has a long history of psychological symptoms that, in all likelihood, render her vulnerable to reactive episodes in response to stress. On the evidence of Dr Ryan, Dr Brown, Dr Canaris and
Dr Synnott it appears that Ms Ferrini suffered from a previously existing psychological condition, with manifest symptoms of anxiety and depression, including panic attacks in November 2005. We accept the evidence of Dr Brown and Dr Walker that the pain disorder is in all likelihood a somatoform disorder that is associated with psychological features. Furthermore, the evidence is clear enough that in the months leading up to March 2006 Ms Ferrini experienced psychological symptoms of varying intensity in the context of her pain disorder and her graduated return to work program; these psychological symptoms were managed with psychological and pharmaceutical treatments, but intensified in February and early March 2006, prior to the incidents that Ms Ferrini says caused her psychological injury and reduced again thereafter to the extent that they were found to be sub-clinical in June 2006: on 20 June 2006 Dr Ryan noted a reduction in her HADS scores for anxiety to 14, although her depression score increased to 8; on
23 June 2006 Ms Yeomans reported some symptoms of an anxiety condition at a sub-clinical level.
29. On this evidence we are reasonably satisfied that Ms Ferrini’s psychological symptoms followed a fluctuating course at least from October 2005 and that her symptoms of anxiety and depression from March to June 2006 were the result of her previously existing anxiety and pain disorders. To the extent that the evidence reveals an increase in her symptoms in the period from March 2006, and that such elevated symptoms persisted until May 2006 it is possible that Ms Ferrini suffered an injury. But the character of any such injury is not consistent with Ms Ferrini’s account; if there was an injury it arose in the context of the graduated return to work program in 2005 and Ms Ferrini’s already existing anxiety and depression, or her pain disorder.
30.
It is important to note that Ms Ferrini’s symptoms of anxiety and her prescribed dosage of Efexor XR increased prior to the incident on 8 March 2006 and any subsequent actual or perceived conflict between Ms Ferrini and Ms Robinson. There is very scant evidence of any increase in Ms Ferrini’s psychological symptoms in the period immediately following the incident on 8 March, 4 April or 8 May 2006. Dr Ryan’s clinical notes reveal that Ms Ferrini complained of elevated anxiety on
5 March and 30 May 2006, but there is no evidence that Dr Ryan considered it necessary to further increase her dosage of Efexor XR in that latter consultation.
The clinical notes of Ms Ferrini’s treating general practitioners in Wollongong over this period reveal that her only complaints concerning psychological symptoms were on 3 March 2006.
31. Thus, we are reasonably satisfied that Ms Ferrini’s psychological symptoms during this period of 2006 were the result of her previously existing and ongoing psychological condition or her pain disorder. Reactions to work stressors involving Ms Merten and Ms Robinson must be considered in that context: was the fluctuating course of her symptoms materially contributed to by those stressors or was it the product of her already existing disease? We are reasonably satisfied Ms Ferrini’s reactions to work stresses from March 2006 were a function or a manifestation of her already existing psychological condition or her pain disorder.
32.
At this point it is relevant to note that initially, for the purposes of his first report on 10 June 2008 Dr Canaris was not provided with a detailed or accurate medical history by Ms Ferrini or her representatives. Even though, subsequently, he obtained more information about Ms Ferrini’s previous psychological history, especially in relation to her previous related claim for compensation, it appears to us that
Dr Canaris was not fully conversant with relevant details of her history in the months and years prior to March 2006. For that reason the opinions expressed in Dr Canaris’ report carries less weight than the evidence of other doctors who were provided with a full medical history. Even so, Dr Canaris agreed in his oral evidence that it was likely Ms Ferrini suffered from an operative anxiety depression prior to the events that she says caused her subsequent injury and incapacity.[42]
[42] See also Exhibit A3, pp4-5.
33. With regard to Dr Ryan’s evidence, it is not entirely clear whether Dr Ryan was provided with a full medical history by Ms Ferrini at the outset. The doctor’s clinical notes reveal a progressive approach to history-taking; significant aspects of Ms Ferrini’s medical history are recorded in clinical notes after June 2006.[43] Nevertheless, Dr Ryan’s evidence concerning Ms Ferrini’s psychological symptoms and her medical treatment in the months prior to March 2006 is consistent with the probable existence of a psychological disorder prior to the so-called “triggering incidents”[44] in March and May 2006. We do not accept that these events triggered anything other than concern and distress in Ms Ferrini within the context of her already existing and symptomatic psychological condition. Her concern and distress in those circumstances were not operative causes of the psychological condition in any material sense, but were rather circumstances arising in the context of disease where Ms Ferrini’s response was conditioned by disease, as had been occurring in the months prior to March 2006. We so find.
[43] See Exhibit R6 clinical notes on 19 October 2006 and 21 November 2006 for example.
[44] Exhibit A3, p4.
34. We note in passing that a draft report by Dr Ryan on which Ms Ferrini has written comments is in Exhibit R1. What is to be made of this is not clear, and it was not put to Dr Ryan. As it appears to us Dr Ryan has a therapeutic relationship with Ms Ferrini and provided her with copies of his written reports prior to finalisation. There is no evidence, however, that the doctor changed the contents of his reports on the basis of any comments by Ms Ferrini.
35.
In sum, we are reasonably satisfied that any reactive effect of the events to which Ms Ferrini pointed in the period from 8 March 2006 to May of that year was transitory and was conditioned by her already existing medical conditions; the difficulties Ms Ferrini perceived in her employment at that time arose in the context of her already existing and ongoing psychological condition or her pain disorder. Even if her interactions with Ms Merten or Ms Robinson aggravated her psychological symptoms, and that is not established on the present evidence, it would not assist Ms Ferrini’s case: the evidence of Ms Yeomans and Dr Walker clearly indicates that any symptomatic effects diminished to a subclinical level by June 2006. Ms Ferrini’s treatment by Dr Ryan commenced prior to the work incidents and continued thereafter. He, too, recorded a diminution of her anxiety in June 2006 and reported that her symptoms followed a fluctuating course over the period he treated
Ms Ferrini, to some extent in response to work stress. By Ms Ferrini’s own account, however, she experienced symptoms and stress outside the workplace as well as within it. Nevertheless, Ms Ferrini continued in her employment without incapacity for many months.
36.
It appears that Ms Ferrini’s symptoms again increased in December 2006 and January 2007 when she became aware that her employment may be terminated.
At that point she lodged a claim for compensation.[45] Dr Brown gave evidence that these circumstances constituted a fresh cause of reactive symptoms that, in effect, displaced the earlier stressors at work. It is tolerably clear to us that Ms Ferrini’s psychological symptoms increased thereafter for a time, until she left employment, when the symptoms again diminished. Subsequently, it appears that her symptoms again increased in or about October 2008 in response to her efforts to start a new accountancy consulting business and her concerns at that time and subsequently about the loss of her income stream and her ‘career’ with the ATO.
[45] T5.
37.
This fluctuating pattern of psychological and pain symptoms predates the work incidents that purportedly caused Ms Ferrini to be injured in March or
May 2006. As it appears to us, the fluctuating pattern is a function of her disease and Ms Ferrini’s previous workplace was simply the environment in which her existing conditions were manifest. Of course, if an existing psychological condition is susceptible to aggravation by work stress, and symptoms increase as a result, it could be said that the increased symptoms may constitute an injury under the Act. But that is not a correct conclusion in this case: it is in the character of Ms Ferrini’s psychological and pain conditions to fluctuate over time and in response to stress. It is for this reason that her symptoms increased when she commenced her return to work in 2005. The responsiveness to stress is a function of existing disease.
We accept Dr Brown’s evidence in this regard. It does not follow that each increase in her symptoms in the workplace constitutes an injury under the Act.
38.
Dr Brown’s evidence is to be preferred and given greater weight than the evidence of Dr Ryan and Dr Canaris on these issues of causation for the simple reason that Dr Brown had a complete medical history, whereas, initially at least,
Dr Ryan and Dr Canaris did not. We note that Dr Ryan and Dr Canaris are in the same practice and both doctors relied to a large extent on the information provided to them by Ms Ferrini. We are concerned that Ms Ferrini has not been frank and entirely forthcoming when providing an account of her medical history to various doctors over time. That is not to say that Ms Ferrini deliberately lied to any doctor, and certainly no such proposition was put to her. But it appears to us that she may have omitted to disclose aspects of her medical history, or her history of making compensation claims. In a case such as this, it is essential to carefully consider Ms Ferrini’s full medical history in order to properly understand the nature of her afflictions and the role of work stressors in the progress of those afflictions.
39. With regard to the claimed incapacity and medical treatment expenses after June 2007, we are reasonably satisfied that the incapacity from 18 June 2007 was not the result of any injury in the period from 8 March to May 2006 and medical treatment that Ms Ferrini obtained after 30 October 2008 was not in relation to any such injury.
40. For this reason Ms Ferrini’s claims fail and the decisions under review must be affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member and Dr P. Wilkins, Member.
Signed: ...................[sgd]....................................................
J. Lakin, AssociateDate of Hearing 29 & 30 March 2010
Date of Decision 20 April 2010
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Slater & Gordon LawyersCounsel for the Respondent Mr C. Clark
Solicitor for the Respondent Sparke Helmore Lawyers
13
0