Fiddian and Comcare (Compensation)
[2019] AATA 10
•8 January 2019
Fiddian and Comcare (Compensation) [2019] AATA 10 (8 January 2019)
Division: GENERAL DIVISION
File Number(s): 2016/7004
2018/1552
Re:Gemma Fiddian
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:8 January 2019
Place:Canberra
The Tribunal sets aside the first Reviewable Decision dated 18 November 2016 and, in substitution, decides that the Respondent is liable to pay compensation between the date of the indexed injury up until 2 May 2017.
The Tribunal sets aside the second Reviewable Decision dated 23 February 2018 and, in substitution, decides that the Applicant is entitled to incapacity payments for the period 7 November 2016 to 16 December 2016.
..................................................................
Senior Member Linda KirkCatchwords
WORKER’S COMPENSATION – ailment or aggravation of ailment – adjustment disorder with anxiety and depressed mood – whether the Applicant’s employment contributed to her ailment to a significant degree – scope of wilful and false representation that an applicant did not previously suffer from a disease – whether nexus between representation and disease the subject of the claim can be established – whether previous representations wilful or false – whether the Applicant’s employment contributed to a significant degree to her ongoing ailment – contribution to ailment from rehabilitation process found to be related to the Applicant’s employment – decisions set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7(7), 14 16, 19
Cases
Anderson and Australian Postal Corporation [2016] AATA 228
Comcare Australia v Porter (1996) 70 FCR 139
Comcare v Power [2015] FCA 1502
Dalton and Comcare [2018] AATA 2923
Federal Broom Company v Semlitch [1964] HCA 34
FWZW and Comcare 2016/4826 (unreported)
Griffiths and Australian Postal Corporation [2017] AATA 1025
Griffiths v Australian Postal Corporation [2018] FCA 520
Havnen and Comcare [2010] AATA 535
Hennessey-Milne and Comcare [2018] AATA 4453
JXTZ and Comcare [2017] AATA 880
Kennedy and Comcare [2015] AATA 334
K & S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518
National Australia Bank Ltd v Georgoulas [2013] FCA 1412
Pettiford v Comcare [2014] AATA 95
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Senior Member Linda Kirk
8 January 2019
DECISIONS UNDER REVIEW
Application 2016/7004
Ms Gemma Fiddian (‘the Applicant’) was born in 1985 and commenced employment as a teacher with the ACT Education and Training Directorate in January 2010. On 23 January 2013 the Applicant commenced work as a classroom teacher at the Woden School teaching Year 7/8 classes on a full time basis. The School specialises in the teaching of students with autism spectrum disorder from Year 7 to Year 12.
On 5 May 2014 the Applicant lodged a workers’ compensation claim in respect of ‘situational stress’[1] arising from an incident that occurred at the Woden School on 2 April 2014 (‘the April 2014 incident’).
[1] T3.
On 8 July 2014, by way of Determination, the Respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) for ‘adjustment reaction with mixed emotional features’.[2] The Determination accepted that the Applicant suffered an ailment and was satisfied the Applicant’s employment with the ACT Education and Training Directorate significantly contributed to the ailment.[3]
[2] T9.
[3] T9.
On 14 April 2016, a clinical panel review was undertaken by the Respondent which found that Comcare’s liability for the Applicant’s ailment had ceased.
On 3 May 2016, the Respondent issued a notice of its intention to determine no present entitlement. In arriving at the Determination, the Respondent noted that there was no claim for time off work since 2014 or a claim for medical treatment since 18 November 2015. Accordingly, compensation may not be payable pursuant to s 16 or s 19 of the SRC Act.[4]
[4] T47.
On 7 June 2016, by way of Determination, the Respondent stated that it has no present liability to pay compensation to the Applicant.[5]
[5] T48.
On 18 October 2016, by way of Determination, the Respondent determined that under s 16 of the SRC Act compensation is not payable for the pharmaceutical Zoloft and psychological consultations.[6]
[6] T50.
On 20 October 2016, the Applicant sought a Reconsideration of Determination.[7]
[7] T51.1.
On 18 November 2016, the Respondent issued a Reconsideration of Determination affirming the Determination dated 20 October 2016.[8] (‘the first Reviewable Decision’).
[8] T52.
In making the Determination the Respondent stated:
I have limited evidence to suggest that your claimed condition is the condition that you are currently experiencing the effects of and is the condition that you are seeking incapacity payments for. While your new general practitioner refers your current need for treatment is due to your compensable condition, this is at odds with the previous information that your condition has resolved.
I also note that there is no evidence or information from your previous treating psychologist to assist with confirmation of your symptoms and whether these are flare ups or a new aggravation.
Therefore, I am not satisfied that there is sufficient medical evidence to (sic) that your current condition still (sic) related to the injury sustained on 3 April 2014 and therefore affirm the decision.[9]
[9] T52, 472.
An application for review of the Reviewable Decision was lodged with the Tribunal on 23 December 2016.[10]
[10] T1.
Application 2018/1552
On 8 February 2018, by way of Determination, the Respondent determined that under s 19 of the SRC Act, incapacity payments are not payable for the period 7 November 2016 to 16 December 2016.[11]
[11] T59.
On 8 February 2018, the Applicant sought a Reconsideration of Determination.[12]
[12] T60.
On 23 February 2018, the Respondent issued a Reconsideration of Determination affirming the Determination dated 8 February 2018[13] (‘the second Reviewable Decision’).
[13] T62.
An application for review of the second Reviewable decision was lodged with the Tribunal on 26 March 2018.[14]
[14] T56.
Both applications were heard by the Tribunal at a hearing in Canberra on 21, 22 and 23 August 2018. The following witnesses gave oral evidence at the hearing:
·the Applicant;
·Dr Catherine Oelrichs;
·Dr Derek Lovell; and
·Dr Zeeva Cohen.
The following documents were before the Tribunal:
·Statement of the Applicant dated 22 March 2017 (Exhibit A1);
·Report of Dr Catherine Oelrichs dated 2 May 2017 (Exhibit A2);
·Report of Dr Zeeva Cohen dated 19 December 2016 (Exhibit A3);
·Report of Dr Derek Lovell dated 16 May 2017 (Exhibit R1);
·Report of Dr Derek Lovell dated 29 June 2018 (Exhibit R2);
·Respondent’s s 37 documents (T1-T63);
·Respondent’s s 38AA documents (T64-148);
·Applicant’s Amended Statement of Facts, Issues and Contentions dated 29 May 2018; and
·Respondent’s Amended Statement of Facts, Issues and Contentions dated 6 June 2018.
LEGISLATIVE FRAMEWORK
SRC Act
An employee’s entitlement to compensation under the SRC Act is conferred by s 14(1) which provides that Comcare is:
… liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
‘Injury’ is defined in s 5A of the SRC Act:
(1)…
(a)a disease suffered by an employee; or
(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 employee's 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 employee's employment), that is an aggravation 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 employee's employment.
A ‘disease’ is defined in s 5B of the SRC Act to mean, so far as this case is concerned:
(1)…
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
"significant degree" means a degree that is substantially more than material.
An ‘ailment’ is defined in s 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘Aggravation’ is defined in s 4 of the SRC Act to include acceleration or recurrence.
Section 7(7) of the SRC Act provides:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
ISSUES FOR DETERMINATION
The issues relevant to the determination of both applications are as follows:
(a)Did the Applicant suffer an ‘ailment’ or an ‘aggravation’ of an ailment for the purposes of s 4 of the SRC Act?
(b)Did the Applicant’s employment contribute, to a significant degree, to her ailment or the aggravation of the ailment such that she has a ‘disease’ under s 5B(1) of the SRC Act?
(c)If the Applicant suffered a ‘disease’, is this not an ‘injury’ for the purposes of s 5A(1)(a) of the SRC Act, by reason of s 7(7) of the SRC Act?
(d)Does the Applicant continue to suffer from a ‘disease’ or aggravation thereof that was contributed to, to a significant degree, by her employment, and if so:
(i)Does the Applicant reasonably require medical treatment as a result of that disease; and
(ii)Is the Applicant incapacitated for work in relation to that disease?
BACKGROUND AND CLAIMS
The April 2014 incident
In a statement dated 6 June 2014,[15] the Applicant described the incident that gave rise to her claimed injury:
On 2nd April 2014 there was an incident involving two kids with autism. I was walking to the break room – I was carrying a mug as I was going to have a cup of coffee. I was walking past the deputy principal’s office when I noticed a very large male Year 9 student with autism and known aggression issues who was supposed to be in seclusion chasing a very small female Year 7 student with very profound autism down the hallway towards me.
Right outside of the deputy principal’s office the male student knocked the female student to the ground. I don’t know exactly how he got her to the ground – he either pushed her or he tripped her. I was about two meters away. It happened at a T-intersection. I was walking towards the intersection and they came running – they were quiet (sic) noisy and I could hear them – the female was shrieking.
When she was on the ground he stomped on her and she kept screaming. I saw him stomp on her about three times. I screamed at him to go back to his isolation room.
I managed to help the student to her feet and to walk away from the area. X-rays later showed that she had a tear to the shoulder joint and to the collar bone. I had no idea of this at the time. There were no external injuries that I could see. She was extremely distressed and I could see by the way she was holding her arm that something was wrong with it. Because of her autism she does not speak.
I was very distressed. I needed help. I was completely alone as far as support goes. I could see Barbara Drummond on duty through two panes of glass but she was swamped with kids.
The same student had stacked me about 12 months earlier. I was his teacher in a history class and I asked him to stop drawing on his desk at which point he stood up, approached me and punched me in the face. Before this he had been a problem and I had tried different strategies with him but nothing worked. After he punched me I had a bit of a meltdown. I think Barbara was teaching next door and she came in and looked after my class. I filled out an incident report. The boy who assaulted me was just moved to another class.
[15] T4.1, Statement of the Applicant dated 6 June 2014 [12]-[20].
Following the April 2014 incident the Applicant took leave until 7 April 2014. On 3 April 2014 and 10 April 2014 she attended at her local general practice, the University of Canberra Medical Centre.[16]
[16] T3, 5; T6, 110; T46, 399-400.
In her statement dated 22 March 2017[17] the Applicant described a panic attack she experienced while participating in a work activity at the end of April or early May 2014:
Staff at the school were required to participate in TEAM teach training. The purpose of the training was to de-escalate violent behaviour.
During the training session I experienced what I now know to have been a panic attack. I had a sensation of not being able to breathe, being overheated, hyperventilated and being disassociated. I also vomited.[18]
[17] A1, Statement of the Applicant dated 22 March 2017.
[18] A1, [17].
On 1 May 2014 the Applicant went to see her general practitioner, Dr Jenny Weekes, at the University of Canberra Medical Centre.[19] She was reviewed on 13, 19 and 30 May and 13 and 20 June 2014.[20]
[19] T46, 398.
[20] T6, 110-111; T46, 395-399.
In an email to Comcare in relation to her claim dated 1 July 2014 the Applicant further described the panic attacks she experienced following the April 2014 incident:
My response to the incident involving a student being stomped on repeatedly at school has been an alarming one and one over which I have no control. While I have suffered long-term from an anxiety disorder, I was not medicated until last year and I have never in my life experienced panic attacks.
…
My panic attacks have occurred twice at the Woden School since April and both times required first aid treatment and an escort home. I have since had several involuntary physical convulsions, uncontrolled crying, hyperventilating, vomiting, raised body temperature, hallucinations, muscular pain and touch sensitivity, feelings of profound hopelessness and a desire, while not (sic) kill myself, to be dead or to have never been born. The attacks are scary not only for myself, but also for witnesses.[21]
[21] T8, 134.
In her oral evidence at the Tribunal hearing, the Applicant confirmed that prior to the April 2014 incident she had never before in her life suffered a panic attack. She told the Tribunal that the symptoms she experiences during a panic attack include a loss of motor control, losing track of time and physical collapse.
Compensation Claim
The Applicant lodged a claim for compensation on 5 May 2014.[22] Her general practitioner, Dr Jenny Weekes, provided Medical Certificates for Workers Compensation and described the Applicant’s condition as ‘Situational stress’ occurring on 2 April 2014 and declared her unfit for work until 30 June 2014.[23]
[22] T3, 4-11.
[23] T6, 115-119.
In answer to Question 10 of the claim form, For what injury or illness are you claiming workers’ compensation? the Applicant wrote ‘Situational stress’.[24]
[24] T3, 5.
In answer to Question 16, Have you ever had a similar symptom, injury or illness, work-related or otherwise? the Applicant wrote ‘Yes’ and ‘Anxiety disorder 2003-2013’.[25]
[25] T3, 6.
In answer to Question 17, Have you ever received medical treatment for a similar injury or illness? the Applicant wrote ‘Yes’ and provided the name of her general practitioner Dr Jenny Weekes, and a date of ‘29 July 2013’.[26]
[26] T3, 6.
In answer to Question 27, At the time you were injured/became ill, were you under the influence of alcohol or other drugs including prescription medication?, the Applicant wrote ‘Lyrica 25mg, Zoloft 100mg’.[27]
[27] T3, 7.
Medical history prior to compensation claim
The Applicant was prescribed fluoxetine, an antidepressant, in December 2001.[28]
[28] T145, 886.
Clinical notes of the University of Canberra Medical Centre dated 16 May 2008 record the Applicant as suffering ‘panic attacks’.[29] A referral was made for the Applicant to attend counselling, and on 5 June 2008 she was prescribed citalopram, an antidepressant.[30] She continued to be prescribed this medication on a monthly basis until September 2011.
[29] T132, 795.
[30] T46, 406-407.
The entry in the clinical records dated 7 October 2009 states ‘anxiety attack today, group presentation this am… panic attack prior to presentation when seeing other members… coming off the SSRI citalopram half daily.’[31]
[31] T46, 404-405.
Dr Georgina Flannagan, general practitioner at the University of Canberra Medical Centre, wrote on 15 July 2011 that the Applicant was ‘suffering from a mild anxiety state’ which was ‘well controlled on one cipramil a day’ and that she had not had problems for the previous year.[32]
[32] T68.
The clinical notes record that the Applicant reported anxiety to Dr Flannagan on 29 July 2013 and was prescribed Zoloft.[33] She has continued to be prescribed sertraline monthly to the present.[34]
[33] T46, 402-403
[34] T145, 891-894.
The Applicant reported two incidents of panic attacks to Dr Flannagan on 26 August 2013.[35] In her oral evidence, the Applicant explained to the Tribunal that there was an incident at school on 26 August 2013 when a child was lost/missing and she was ‘feeling panicky’. She wanted to get out and find the child as she felt responsible for him.
[35] T116, 687; T46, 402
Professor Paul Gatenby, rheumatologist, wrote on 10 October 2013 that the antidepressants had improved the Applicant’s mood but not her anxiety levels. He noted she had previously suffered from anxiety, depression, anorexia, fibromyalgia, chronic fatigue syndrome, migraines and vertigo.[36]
[36] T73.
On 17 October 2013 the Applicant reported to Dr Flannagan feeling worse than she had in 10 years, and the Zoloft prescription was increased to 100mg per day. Dr Flannagan reported ‘panic attack settling saw immunologist’.[37] On 13 November 2013, Dr Alison Weekes reported the Applicant ‘has a panic disorder’.[38]
[37] T46, 401.
[38] T46, 401.
On 18 March 2014 the Applicant was given another script for Zoloft 100mg by Dr Weekes.[39]
[39] T46, 400.
In her oral evidence at the hearing, the Applicant said that she had not been treated for panic attacks prior to April 2014. If she had experienced a ‘panic attack’ in the past it was not to the level or severity of the attacks she experienced following the April 2014 incident.
Rehabilitation process
On August 2014, Injury Management found a position for the Applicant at the Telopea Park School.[40] She was then moved to another placement at Melrose High School[41] and at the end of 2014 she was uncertain where she would be placed in the new teaching year in 2015.[42] This ‘uncertainty was detrimental to [her] mental health.’[43] At the beginning of the 2015 the Applicant was placed at Caroline Chisholm School,[44] and in the 2016 transfer round she was given her first preference of Campbell High School.[45] She informed Injury Management that she would need their assistance in getting established at the school.[46]
[40] A1, [23].
[41] A1, [25].
[42] A1, [27].
[43] A1, [28].
[44] A1, [29].
[45] A1, [30].
[46] A1, [31].
On 18 May 2016 there was a lockdown at Campbell High School because of a violent student.[47] The Applicant had to calm one of her students and also had to control her own panic reaction. After the incident she ‘felt extremely anxious’ as she ‘realised that without a procedure in place to manage [her] injury, [she] was vulnerable to flash backs and recurrence of panic symptoms.’[48] During a conversation with the Principal, the Applicant learned that the Principal had had not been informed of her injury. She was told that inquiries would be made about the breakdown in communication and she would be provided with appropriate assistance.[49]
[47] A1, [32].
[48] A1, [32].
[49] A1, [33]-[34].
Shortly after this conversation, the Applicant suffered a panic attack when she learned that the Principal had been transferred to another school ‘due to the sudden change and lack of clarity about what was happening regarding [her] situation.’[50] She disclosed the injury to the Deputy Principal who contacted Injury Management and she learned that her file had been closed. The Deputy Principal had to submit a new request for assistance from Injury Management. The Applicant described her reaction to this in her statement dated 22 March 2017:
I found the need to disclose my injury a second time, as well as the difficulty in getting assistance from Injury Management, confusing and isolating and it heightened my feelings of anxiety when I was at school.
My symptoms escalated to the point where I was suicidal. It also significantly impacted on my ability to undertake my work, as I would suffer from breakdowns while at work, which I found very embarrassing.
At the end of August I was triaged by someone from Injury Management who didn’t know anything about my case. Injury Management did not take any action in my matter until December.[51]
[50] A1, [35].
[51] A1, [39]-[41].
In October 2016 the Applicant consulted with her general practitioner Dr Ertz. He advised her ‘that as the school had not made reasonable adjustments to make the work environment safe for [her], he was certifying [her] as unfit for work pending a plan of action from Injury Management.’[52] The Applicant went on paid leave and then unpaid leave. She was offered another job at the University of Canberra, which she commenced in early 2017.
[52] A1, [42].
In her statement dated 22 March 2017 the Applicant described her current condition:
I continue to suffer from symptoms arising from my injury, including panic attacks, depressed mood, low energy and frequent nightmares or interrupted sleep.
Medical evidence
Dr Derek Lovell, Consultant Psychiatrist
Dr Derek Lovell examined the Applicant on 20 June 2014 and provided a report to Comcare dated 27 June 2014 in which he diagnosed the Applicant with an ‘adjustment disorder with mixed anxiety and depressed mood’.[53] He noted the Applicant’s ‘history of chronic fatigue syndrome and … of previous depression and counselling with treatment initially with Cipramil when she was in her 20s.’[54]
[53] T7, 120-127.
[54] T7, 125.
Dr Lovell reassessed the Applicant on 16 October 2015 and provided a further report to Comcare of the same date. He confirmed the diagnosis of ‘adjustment disorder with anxiety and depressed mood’ and found that the Applicant’s panic attacks were a feature of this condition.[55] He found that the dissociative episode she experienced at school in August 2015 was ‘a feature of her compensable condition.’[56] Dr Lovell noted she is ‘an oversensitive young woman which renders her vulnerable to heightened distress and arousal.’ [57] He concluded that the Applicant required continued sertraline and ongoing psychological counselling for another three to four months.[58]
[55] T41, 352, 357.
[56] T41, 353.
[57] T41, 355.
[58] T41, 356.
Dr Lovell reassessed the Applicant on 5 May 2017 and provided a further report to Comcare on 16 May 2017.[59] He reviewed the file material in relation to the Applicant, including the clinical records of the University of Canberra Medical Centre, and reported that the Applicant ‘has a pre-existing history of Panic Disorder’ which ‘was present from around 2008’.[60] He noted that ‘[p]anic disorder waxes and wanes over time.’[61] He reported that the Applicant told him she suffered from ‘some low-level anxiety in her 20s’ but she ‘denied ever suffering a panic attack’.[62]
[59] R1, Report of Dr Derek Lovell dated 16 May 2017.
[60] R1, 8.
[61] R1, 8.
[62] R1, 5.
Dr Lovell noted that the Applicant ‘has a high degree of sensitivity to harm befalling animals or children and is concerned about others witnessing her having a panic attack.’[63] He was of the opinion that the Applicant’s ‘current responses related to an innate personal sensitivity. She now holds the view that working in a school system is unsafe’.[64] In his opinion, her panic attacks in July and August 2016 were ‘not related’ to the April 2014 incident.[65] He found that whereas the Applicant ‘[p]reviously … had an aggravation of panic attacks within the school environment’, she ‘[c]urrently … does not suffer from any psychological condition.’[66] He concluded that ‘the effects of the compensable condition ceased when she won employment at the beginning of 2016 at Campbell High School.’[67] In his view it was reasonable for the Applicant to continue the prescription of sertraline, but further treatment with her psychologist was not reasonable.[68]
[63] R1, 7.
[64] R1, 7.
[65] R1, 7.
[66] R1, 7.
[67] R1, 8.
[68] R1, 8.
Dr Lovell provided a supplementary report to Comcare on 29 June 2018.[69] He reported that the entries in the records of the University of Canberra Medical Centre ‘indicate that there is a long history of panic disorder and [the Applicant’s] statement that she had never in her life experienced panic attacks is not accurate.’[70] He maintained the view he expressed in May 2017 that ‘she suffered a recurrent panic disorder from around 2008.’[71] In his opinion, the April 2014 incident ‘may have transiently aggravated [the Applicant’s] panic attacks given her high level of sensitivity.’ He noted that the Applicant ‘has a high level of vulnerability and was keenly attuned to the suffering of others.’ The ‘behavioural outburst and conflict may have heightened her anxiety but this would have been a transient effect.’[72]
[69] R2, Report of Dr Derek Lovell dated 29 June 2018.
[70] R2, 2.
[71] R2, 4.
[72] R2, 4.
In his oral evidence at the hearing, Dr Lovell said that whereas anxiety disorder and panic disorder are discrete entities in DSM5, in reality there is overlap between them. It is the majority of symptoms that determine the diagnosis. The symptoms of a panic attack are very frightening and include heart palpitations, shortness of breath and abdominal symptoms. A patient will usually present quite quickly to their doctor and describe the symptoms. Dr Lovell confirmed that in his opinion the effects of the April 2014 incident on the Applicant were transient and would have ceased by October 2016.
Dr Zeeva Cohen, Consultant Psychiatrist
Dr Cohen examined the Applicant on 6 December 2016 and prepared a fitness for work report for the Applicant’s employer dated 19 December 2016.[73] She found the Applicant’s condition as consistent with ‘chronic adjustment disorder’.[74] She observed that there were ‘features in [the Applicant’s] early developmental history…which appear to have sensitised [her] to the difficult circumstances, particularly when feeling unsupported.’[75] She noted that the Applicant’s ‘high level of skill and attunement to the disabled is also a factor which makes her vulnerable to over-identify with vulnerable others’.[76]
[73] A3, Report of Dr Zeeva Cohen dated 19 December 2016
[74] A3, 4.
[75] A3, 4.
[76] A3, 6.
The Applicant reported to Dr Cohen ‘difficult rehabilitation processes being placed at five different schools and being moved from special needs to teaching to mainstream schooling.’[77] Dr Cohen concluded that the Applicant required further treatment before consideration be given to her returning to work. She recommended engagement with a clinical provider such as a consultant psychiatrist to review the Applicant’s current medication and provide ongoing psychological support.[78]
[77] A3, 2.
[78] A3, 7.
In her oral evidence at the hearing, Dr Cohen told the Tribunal she assessed the Applicant as vulnerable and lacking resilience. She agreed that there is an overlap between panic disorder, anxiety disorder and depression. Following her consideration of the clinical notes from the University of Canberra Medical Centre she agreed that she is now in a better position to understand the Applicant’s medical history. However this additional medical history would not have caused her to reach a different view in relation to the diagnosis of the Applicant.
Dr Catherine Oelrichs, Consultant Psychiatrist
Dr Oelrichs saw the Applicant at the request of her solicitors on 12 April 2017 and provided a report dated 2 May 2017.[79] She reported that the Applicant had ‘developed a range of symptoms consistent with an adjustment disorder with mixed anxiety and depressed mood.’ She noted Dr Lovell’s opinion that panic attacks were ‘part of [the Applicant’s] anxiety symptoms.’ In her view, the April 2014 incident contributed to the Applicant’s condition to a significant degree.[80] She found that the Applicant was ‘still presenting with residual symptoms of her condition and still remains vulnerable to stressors which link and associate with [the April 2014 incident].’[81]
[79] A2, Report of Dr Catherine Oelrichs dated 2 May 2017.
[80] A2, 10.
[81] A2, 9.
Dr Oelrichs noted that the Applicant had ‘a pre-existing non-work related history of likely depression’ which, according to medical reports and documentation, ‘had previously resolved.’[82] This pre-existing condition may have led the Applicant ‘to be more vulnerable to developing anxiety and depression; however the condition of 2014 is separate to her pre-existing condition in that this is another set of stressors.’[83]
[82] A2, 10.
[83] A2,10.
In her oral evidence at the hearing, Dr Oelrichs was asked about the distinction between ‘panic attack’ and ‘panic disorder’. She said the former is an overwhelming physiological response with feelings of dying, heart racing, shortness of breath and sweating. These come out of the blue, but if a person is more vulnerable to them then it is more likely they will occur. The latter is a demonstrated long-term history of regular panic attacks as opposed to an isolated panic attack. She confirmed that from the clinical notes of the University of Canberra Medical Centre it was evident that the Applicant had a vulnerability to panic attacks.
Dr Oelrichs was asked whether her diagnosis had changed following her review of the clinical notes from the University of Canberra Medical Centre. She told the Tribunal that her diagnosis remains the same as the Applicant exhibited a range of different symptoms consistent with adjustment disorder in response to a specific stressor. She explained that there is often an overlap of symptoms between anxiety and depression and panic attacks and it is difficult to isolate these. The symptoms will usually subside with the removal of the stressor. In her opinion, the Applicant experienced a number of sporadic panic attacks in response to a particular stressor and not a panic disorder.
During cross-examination Dr Oelrichs was asked whether, given that Dr Alison Weekes reported the Applicant ‘has a panic disorder’ on 13 November 2013, it is reasonable to assume that this diagnosis was made and was told to the Applicant. Dr Oelrichs agreed that this is a reasonable assumption, however she cannot comment on whether the diagnosis was accurate as she did not assess the Applicant in 2013.
Dr Oelrichs agreed that the Applicant requires maintenance of her condition and that with the support of a good GP she will sustain her recovery and possibly go into remission. However, given the Applicant’s baseline vulnerability, if a stressor occurs in future then it may trigger a further episode which will require further management.
Dr Oelrichs expressed the view that the specific stressor in the Applicant’s circumstances was the April 2014 incident. She also agreed that the rehabilitation process itself was a stressor for the Applicant as it reminded her of the workplace event.
CONSIDERATION AND REASONS
(1) What is the ailment suffered by the Applicant?
The Respondent contended that all three medical specialists opined that the Applicant suffers from an aggravation of a disease. However they disagreed as to the diagnosis of the disease. The Respondent urged the Tribunal to prefer the diagnosis of the Applicant’s condition made by Dr Lovell, namely ‘panic disorder’, over that made by Dr Oelrichs and Dr Cohen. This is for reason that Dr Lovell was the only practitioner who had the opportunity to consider all relevant materials, including the clinical notes from the University of Canberra Medical Centre, in his own time before providing his supplementary reports.[84]
[84] Transcript at page 15, lines 5-7.
The Applicant contended that the disease suffered by her is that diagnosed by Dr Oelrichs, namely ‘adjustment reaction with mixed emotional features’. This is consistent with the diagnosis of the condition by Dr Cohen of ‘chronic adjustment disorder’ and Dr Lovell’s initial diagnosis of ‘adjustment disorder with mixed anxiety and depressed mood.’
In cross-examination, both Dr Cohen and Dr Oelrichs maintained that they did not depart from their diagnosis of the Applicant’s condition subsequent to being made aware of the clinical notes from the University of Canberra Medical Centre which include a number of references to the Applicant suffering ‘panic attacks’ and include an entry by Dr Weekes of ‘has a panic disorder’. Both doctors agreed that notwithstanding this clinical history, their diagnosis remained unchanged, that is ‘adjustment disorder with anxiety and depressed mood’ (Dr Oelrichs) and ‘chronic adjustment disorder’ (Dr Cohen).
In making its finding in relation to the ‘ailment’ suffered by the Applicant, the Tribunal has had regard to the consistent and unwavering evidence of the Applicant in her written statements and oral evidence that the symptoms she suffered post the April 2014 incident were unlike any others she had ever experienced. She freely admitted that she has long suffered from an anxiety disorder, and that on more than one occasion she felt anxious and ‘panicky’ in the school environment when placed in a tense situation such as when the child went missing. However she steadfastly maintained that the debilitating physical symptoms she experienced following the April 2014 incident were completely different from the feelings of anxiety that she had previously suffered.
The Tribunal finds on the basis of the evidence before it, including the reports and oral evidence of the medical specialists and the Applicant’s written statements and oral evidence, that the ‘ailment’ suffered by the Applicant is ‘adjustment disorder with anxiety and depressed mood’. The severe and debilitating panic attacks the Applicant suffered post the April 2014 incident are, as Dr Lovell opined in October 2015, and as noted by Dr Oelrichs in May 2017, a feature or symptom of this condition.
Accordingly, the Tribunal is satisfied that the Applicant suffered an ‘ailment’ for the purposes of s 4 of the SRC Act. In order for this to satisfy the definition of ‘disease’ in s 5B(1) of the SRC, the Applicant’s employment must have contributed, to a significant degree, to the condition.
(2) Did the Applicant’s employment contribute, to a significant degree, to the claimed condition?
The Respondent argued that the Applicant’s employment did not contribute, to a significant degree, to the claimed condition.[85] The Applicant is strongly predisposed to the condition and her developmental history sensitised her to issues in the workplace. She previously had panic attacks, anxiety and depressive symptoms and those she experienced after the April 2014 incident are a mere manifestation of her underlying condition.[86]
[85] Respondent’s SFIC, para 4.5.
[86] Respondent’s SFIC, para 4.6.1.
The Applicant argued that whereas there were non-work related factors that contributed to her condition, including her conceded predisposition to psychological problems, it does not follow that the traumatic April 2014 incident was not a significant contributing factor.[87] The Applicant’s employment was significantly linked to the development or aggravation of the disease being ‘adjustment disorder with mixed anxiety and depressed mood’.[88]
[87] Transcript at page 12, lines 27-30.
[88] Transcript at page 12, lines 44-45.
In deciding this question, the Tribunal may have regard to the non-exhaustive list of matters set out in s 5B(2) of the SRC Act. The Tribunal has had regard to s 5B(2)(c), ‘any predisposition of [the Applicant] to the ailment or aggravation.’
The evidence before the Tribunal is that the Applicant has an extensive medical history of psychological illness. She was prescribed medication for depression in 2001 and from 2008 to 2011 she was prescribed Cipramil which effectively controlled her anxiety symptoms. In July 2013 she was prescribed Zoloft for feelings of anxiety and panic attacks.
The medical specialists note the Applicant’s predisposition to the claimed condition as a consequence of her medical history of depression and anxiety. They all highlighted the Applicant's vulnerabilities or sensitivities to normal workplace stressors and the role which these played in the development or aggravation of her condition. The Tribunal finds that these pre-existing conditions made the Applicant more vulnerable to developing the ailment of ‘adjustment disorder with mixed anxiety and depressed mood.’
There is no requirement that an applicant's perception of workplace incidents or states of affair be objectively reasonable in order for his or her employment to have contributed, to a significant degree, to the ailment or aggravation. As von Doussa J observed in Wiegand v Comcare Australia [2002] FCA 1464 at [31]:
In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.
Since the time of this decision, the definition of ‘disease’ in the SRC Act has been amended from a requirement that the employment contribution be ‘in a material degree, to a requirement that the contribution of employment be ‘to a significant degree’ meaning a degree that is substantially more than material. Irrespective of this change, the observations of von Doussa J in relation to the objective reasonableness of an applicant’s perception of the workplace are relevant in the Applicant’s circumstances. Whether the Applicant’s perception of the school environment as ‘dangerous’ is objectively reasonable, is not a factor relevant to the assessment of the contribution of her employment to the ailment.
The Tribunal finds that the 2014 April incident created a perception in the Applicant’s mind which contributed to the development of the ailment. The question is whether that contribution was to a ‘significant degree’, as is now required under the SRC Act.
The Applicant was subjected to a variety of non-employment related factors or stressors that undoubtedly contributed to her condition, or the aggravation of it, in varying ways and at different times. The medical records from the University of Canberra Medical Centre indicate that the Applicant’s medication was changed or increased in response to a number of different stressors in her life including those unrelated to her workplace.
However, the fact that non-employment related factors contributed to or aggravated the Applicant’s condition does not mean that employment related factors did not also contribute significantly to the ailment. As the Tribunal observed in Havnen and Comcare [2010] AATA 535 at [67]:
It seems to us that both employment and non-employment factors each contributed to the aggravation of Ms Havnen's condition to a "significant degree". The use of the indefinite article "a" in the definition of disease indicates that the employment need not be the only factor that contributed to the disease to a significant degree. Here the employment factors were not trivial or slight but, in this situation, critical…
The medical specialists agreed that the employment related contribution to the Applicant’s condition was significant. Dr Oelrichs found that the 2014 incident ‘contributed to a significant degree to the onset of this condition’,[89] and Dr Lovell reported that the main factors which contributed to her condition were ‘the frequent witnessing of violent events and in particular witnessing the assault of her student…’.[90]
[89] A2, 10.
[90] T7, 126.
On the basis of the evidence before it, the Tribunal is satisfied that the Applicant’s ailment was contributed to, to a significant degree, by the Applicant’s employment and therefore she suffered a ‘disease’ for the purposes of s 5B(1) of the SRC Act.
(3) Is s 7(7) of the SRC Act enlivened?
The Respondent argued that the Applicant made a number of false and wilful representations in relation to her condition during the claims process, specifically that she did not suffer from a previous ‘panic disorder’ or symptoms of a ‘panic attack’, and these enliven s 7(7) of the SRC Act.[91] The representations were argued to have been made in:
· answers to questions in the compensation claim form she completed and signed dated 5 May 2014;
· the email from her to Comcare dated 1 July 2014; and
· providing her medical history to the three medical specialists.
[91] Respondent’s SFIC, paras [4.1] – [4.4].
The Respondent submitted that the appropriate nexus in s 7(7) SRC Act is made out, in that the diagnosis by Dr Lovell of ‘panic disorder’ is the same disease she failed to disclose in her claim form as having previously suffered, that she denied ever having experienced in her email to Comcare, and which she did not disclose as relevant medical history during her consultations with the three medical specialists. Having regard to these matters, it was contended that s 7(7) SRC Act applies in this instance, such that the Applicant's disease or aggravation of disease should not be taken to be an ‘injury’ to the Applicant for the purposes of the SRC Act.
The Applicant argued that in order to enliven s 7(7) SRC Act the relevant representation has to be in relation to the disease that is the subject of the claim as distinct from a symptom of it.[92] As the Applicant’s disease is ‘adjustment disorder with mixed anxiety and depressed mood’, any representations made by her that she did not previously suffer panic attacks does not relate to the disease and therefore cannot be excluded by s 7(7) SRC Act. The Applicant further argued that any representations made by her that she had not previously suffered panic attacks, if false, were not wilful.
[92] Transcript at page 3, lines 36-38.
As Deputy President Humphries observed in Griffiths and Australian Postal Corporation [2017] AATA 1025 at [10] the effect of s 7(7) SRC Act is such that:
[a]n employee who is otherwise entitled to compensation for a disease under the Act loses that entitlement if he or she wilfully makes a false representation about not having previously suffered from that disease. A single deliberate misrepresentation in this respect is enough to disqualify the employee from compensation.
In Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 at [54], Madgwick J cautioned against a liberal interpretation of the exclusion in s 7(7) of the SRC Act at [54]:
The point is that, read literally, s 7(7) could operate so harshly against a claimant that it should not be applied liberally in favour of those resisting the claim.
There are several elements of the exclusion in s 7(7) SRC Act which a respondent seeking to rely on it must demonstrate on the balance of probabilities: Anderson and Australian Postal Corporation [2016] AATA 228 at [96]. These elements are:
· a representation(s)
· that the Applicant did not suffer from the disease the subject of the claim; that was
· wilful and false; and
· made for purposes connected with the Applicant’s employment.
The sub-section requires that all four of these elements are satisfied. As Katzmann J recognised in Comcare v Power [2015] FCA 1502 at [58], although in the Tribunal context neither party bears the onus of establishing any matter, the exclusion under s 7(7) SRC Act requires the party asserting that the exclusion applies to present facts that establish the exclusion. As Member Hyman noted in Dalton and Comcare [2018] AATA 2923 at [32], as the exclusion of an applicant from access to compensation is a serious denial of what would otherwise be an entitlement associated with their employment, it falls ‘to the party asserting the exclusion to ensure that the facts clearly demonstrate the conclusion sought, on the balance of probabilities.’
Made for purposes connected with the Applicant’s employment
The compensation claim form completed by the Applicant contained representations by her that were made for purposes connected with her employment by the ACT Government. In Kennedy and Comcare [2015] AATA 334 the Tribunal had no doubt that workers’ compensation claims are made for purposes connected with employment. This was recently confirmed by the Federal Court in K & S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518 at [61]. Collier J observed:
[I]t is difficult to see how the completion of the relevant form by the employee would not be for purposed connected with his employment … given that the relevant form concerned an application by the employee for compensation from the employer for an incapacity resulting from aggravation of an ailment in the workplace.
The Tribunal is further satisfied that the email from the Applicant to Comcare dated 1 July 2014 and her consultations with the medical specialists were related to her compensation claim, and therefore any representations made by the Applicant in her correspondence with Comcare, and any relevant medical history withheld by the Applicant during her consultations with the medical specialists, were for purposes connected with her employment.
Disease the subject of the claim
In National Australia Bank Ltd v Georgoulas [2013] FCA 1412 (‘Georgoulas’) Perry J made the following observations concerning the interpretation of s 7(7) of the SRC Act:
[73] In my view, on a plain reading of the provision, the use of the phrase "that disease" in s 7(7) of the Act refers back to the disease, or to the aggravation of the disease, mentioned at the start of the provision, being the disease or aggravation of the disease which is the subject of the claim for compensation and complies with the test in [Comcare v Mooi (1996) 69 FCR 439]. As Hayne, Heydon, Crennan and Kiefel JJ held in Alcan (NT) Alumina Ply Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 47 [47]:
"The language which has actually been employed in the text of legislation is the surest guide to legislative intention."
[74] The suggestion that the question is whether a previous condition could properly be described as "a disease", as the NAB submits, is contradicted by the plain words of the provision. The text of the section lends no support, in my view, to the proposition that it is sufficient to establish that the representation was false because the employee had suffered from similar symptoms in the context of a different disease ...
[77] Section 7(7) deals with circumstances where the employee has made a wilful and false representation that he or she did not suffer, or had not previously suffered, from the "disease" which is the subject of the claim. That is a question of fact beyond the power of the Court to review. The provision does not ask whether the employee has failed to disclose that he or she had previously suffered from a "symptom"... [93]
[93] Georgoulas [2013] FCA 1412 [73]-[74], [77] bold emphasis in original; underlined emphasis added.
Senior Member Cotter in FWZW and Comcare 2016/4826 (unreported) summarised Perry J’s direction in relation to the interpretation of s 7(7) as follows:
As Perry J held in Georgoulas, s 7(7) of the SRC Act does not ask whether the employee has failed to disclose that he or she had previously suffered from a "symptom"; rather, the provision focuses on the disease which is the subject of the claim. As the provision is exclusionary in an otherwise beneficial statutory scheme, it is appropriate and consistent with the approach adopted by Madgwick J in Department of Employment and Workplace Relations v Comcare, to construe it strictly or narrowly, and not liberally. That is particularly so when it is remembered that the existence of disease is a subject ‘notoriously liable to human misapprehension’.[94]
[94] FWZW at [43] citing Comcare Australia v Porter (1996) 70 FCR 139, 150 (Jenkinson J).
The Federal Court recently endorsed this interpretation of s7(7) of the SRC Act in Griffiths v Australian Postal Corporation [2018] FCA 520 at [19]-[20].
The parties differ on the question whether there is an appropriate nexus between the representations made by the Applicant and the disease that is the subject of the claim. The Respondent asserts there is an appropriate nexus, in that the Applicant's representations were to the effect that she had never before experienced panic attacks which, the Respondent says, is the subject of the claim for compensation as the appropriate diagnosis of her condition is ‘panic disorder’. The Applicant disagrees, as she argues that the disease that is the subject of the claim is ‘adjustment disorder with mixed anxiety and depressed mood’ and that any representation by her in relation to panic attacks, a symptom of the disease, does not enliven the section. This is so regardless of the falsity or indeed wilfulness of any representation.
For the reasons that follow, the Tribunal is not satisfied that the necessary nexus has been made out in relation to the three claimed representations. If this finding is incorrect, the Tribunal nevertheless finds that the representations made by the Applicant even if false were not made wilfully with an intention to deceive.
Representations
Compensation claim form
The Applicant’s answer to Question 16, Have you ever had a similar symptom, injury or illness, work-related or otherwise? was ‘Yes’, ‘Anxiety disorder 2003-2013’.[95] In answer to Question 17, Have you ever received medical treatment for a similar injury or illness? the Applicant wrote ‘Yes’ and provided the name of her general practitioner Dr Jenny Weekes, and a date of ‘29 July 2013’.[96]
[95] T3, 6.
[96] T3, 6.
The Respondent argued that the Applicant’s answers to these questions contain misrepresentations in that she did not mention her previous panic attacks and that her answers suggested that her anxiety disorder was resolved by the end of 2013.
Applying the test in Georgoulas, the Tribunal finds that the Applicant’s answers to these questions are outside the scope of s 7(7), as they are not representations that she did not suffer, or had not previously suffered, from the disease the subject of the claim, namely ‘adjustment disorder with mixed anxiety and depressed mood’. Any representations or omissions in relation to symptoms of the disease the subject of the claim, including panic attacks, are not caught by the sub-section to exclude the payment of compensation.
Email to Comcare
In her email to Comcare dated 1 July 2014 the Applicant wrote
While I have suffered long-term from an anxiety disorder, I was not medicated until last year and I have never in my life experienced panic attacks.[97]
[97] T8, 134.
Applying the test in Georgoulas, the Tribunal finds that the Applicant’s statement is outside the scope of s 7(7), as it is not a representation that she did not suffer, or had not previously suffered, from the disease the subject of the claim, namely ‘adjustment disorder with mixed anxiety and depressed mood’.
Medical history given to specialists
The evidence before the Tribunal is that the Applicant disclosed to the three medical specialists her medical history of anxiety and depression but did not mention that she had suffered ‘panic attacks’ as recorded in the clinical notes of the University of Canberra Medical Centre.
Applying the test in Georgoulas, the Tribunal finds that the Applicant’s failure to disclose to the medical specialists that she had previously suffered panic attacks is outside the scope of s 7(7), as it is not a representation that she did not suffer, or had not previously suffered, from the disease the subject of the claim, namely ‘adjustment disorder with mixed anxiety and depressed mood’.
Based on the above analysis of the representations, the Tribunal is not satisfied that the necessary nexus is made out. As such, s 7(7) of the SRC Act is not enlivened to exclude the liability to pay compensation. Accordingly, the Tribunal finds that the Applicant’s ailment is an ‘injury’ for the purposes of s 5A of the SRC Act.
Wilful and false
If the Tribunal is wrong in reaching the conclusion that the representations do not meet the necessary nexus with the disease the subject of the claim, the Tribunal is nevertheless not satisfied, based on the entirety of the evidence before it, that the Applicant's representations were wilfully false, in the sense that they were made without any belief that they were true.
In FWZW and Comcare, Senior Member Cotter emphasised that s 7(7) SRC Act ‘requires clear and cogent evidence that the representation was wilfully false. A representation will be wilfully false only if there is evidence that the representation was made without any belief that it was true.’[98] In Hennessey-Milne and Comcare [2018] AATA 4453 at [260], Deputy President Sosso referred to the ‘high factual hurdle that needs to be crossed to establish the basis for a finding of wilful and false representations.’ After finding that the evidence in that case did not establish the applicant had made such representations, the Deputy President observed at [261]:
There is a significant difference between incorrect statements, omissions or even a failure to be proactively helpful, and the making of a deliberately false statement with the knowledge of its falsity and with the intention to gain from that falsehood.
[98] FWZW and Comcare 2016/4826 (24 January 2018) [34] citing Comcare Australia v Porter (1996) 70 FCR 139, 150 (Jenkinson J) and National Australia Bank v Georgoulas [2013] FCA 1412 [53] (Perry J).
The Applicant testified that the information she provided in the claim form and that which she provided to the medical specialists and Comcare, including her medical history, was honest and accurate. Whereas she had long suffered from an anxiety disorder and depression and openly disclosed this during the claims process, she genuinely believed she had never been diagnosed or treated for a panic attack or a panic disorder.
The clinical notes of her general practitioners in the records of the University of Canberra Medical Centre make reference to the Applicant experiencing anxiety and panic attacks and there is one entry that the Applicant ‘has a panic disorder’. However the notes do not record the Applicant reporting to her doctors the frightening physical symptoms of a panic attack which, according to Dr Lovell and Dr Oelrichs, include heart palpitations, shortness of breath, sweating, feelings of dying and physical collapse, and which usually cause a patient to present promptly to their doctor and describe their symptoms.
In JXTZ and Comcare [2017] AATA 880 at [44], Member Webb noted that a ‘failure or omission to provide information about an occurrence, may well be taken as a misrepresentation in respect of the occurrence in certain circumstances.’ However, he emphasised that this ‘should be established by evidence.’ It may be that ‘the failure or omission may have a rational or innocent explanation that would not be consistent with a misrepresentation.’
The Applicant’s evidence is that before the 2014 incident she had not experienced the debilitating symptoms of a panic attack. Accordingly, if the Applicant’s representations that she had not previously suffered a panic attack were false, from the perspective of the Applicant they had a rational or innocent explanation, as she believed that she had not previously experienced the symptoms of a panic attack.
The clinical records of the University of Canberra Medical Centre include an entry recorded by Dr Alison Weekes that the Applicant ‘has a panic disorder’. The Applicant claims that she was never told of this diagnosis by Dr Weekes. As Dr Weekes did not provide evidence to the Tribunal, it cannot be satisfied that the Applicant was made aware of this diagnosis.
On the basis of the evidence before it, the Tribunal is not satisfied that there is clear and cogent evidence that the representations made by the Applicant that she had not previously suffered panic attacks were wilfully false in the sense that the Applicant made them without any belief that they were true. For this reason, the Tribunal is not satisfied that s 7(7) of the SRC Act is enlivened.
To summarise, the Tribunal is not satisfied that s 7(7) of the SRC Act is enlivened. It is not satisfied that the necessary nexus exists between the representations made and the disease the subject of the claim. In any event, even if the nexus did exist, the evidence is not sufficiently clear and cogent to satisfy the Tribunal that the representations in question were wilfully false.
Accordingly, the Tribunal is satisfied that the Applicant suffered an ailment in the nature of a disease in s 5B(1) of the SRC Act and that she therefore suffered an ‘injury’ for the purposes of s 5A of the SRC Act.
(4) Does the Applicant continue to suffer from the disease?
The Respondent argued that if the Applicant’s employment did significantly contribute to the ailment it ceased to do so by February 2016.[99] The Applicant’s rehabilitation process from the end of 2015 was very stressful and this moved the contribution from the employment to the background.[100] Contribution from rehabilitation is not contribution from employment[101] and is unrelated to employment for the purposes of s 5B(2)(d).[102]
[99] Respondent’s SFIC, paras [4.7] – [4.10].
[100] Respondent’s SFIC, para 4.10.
[101] Pettiford v Comcare [2014] AATA 95; Federal Broom Company v Semlitch [1964] HCA 34.
[102] Respondent’s SFIC, para 4.10.
The Respondent argued that the opinion of Dr Lovell should be accepted that any compensable condition had ceased by the end of 2015, and there is no ongoing condition for which medical treatment is to be paid. Accordingly, Zoloft and psychological treatment do not constitute reasonable medical treatment.[103] The Applicant is not entitled to incapacity payments from 7 November 2016 to 16 December 2016.[104]
[103] Respondent’s SFIC, para 4.11.
[104] Respondent’s SFIC, paras 4.12-4.13.
The Applicant argued that, on the basis of Dr Cohen’s 19 December 2016 report and Dr Oelrichs’ 2 May 2017 report, the incapacitating effects of the Applicant’s disease continued through 2015 and 2016 and did not cease until May 2017. Accordingly, the Respondent is liable to pay compensation between the date of the indexed injury up until 2 May 2017.[105] In relation to the wage claim for 7 November 2016 to 16 December 2016, this is within the period of time considered by Dr Cohen who found that the Applicant was unable to return to work at this time.
[105] Transcript at page 2, lines 32-37.
The Applicant argued that the rehabilitation of a worker for the purposes of the SRC Act is intimately connected with their employment, and therefore it cannot be said that contribution to the Applicant’s condition from the rehabilitation process was unrelated to the Applicant’s employment.
The issue for the Tribunal is whether, from early 2016, the 2014 incident continued to contribute, to a significant degree, to the Applicant’s ailment. In deciding this question the Tribunal has had regard to the non-exhaustive list of factors set out in s 5B(2) of the SRC Act, particularly s5B(2)(d), ‘any activities of the employee not related to the employment.’
In Hennessey-Milne and Comcare Deputy President Sosso noted:
As a general rule, incidents flowing from the rehabilitation and compensation process are not to be regarded as employment-related in assessing ongoing liability: see Pettiford and Comcare (2014) 139 ALD 411 and Pedersen and Comcare [2016] AATA 449.
The facts in Hennessey-Milne have similarities with those in this case. The Applicant had underlying personality issues that led him to experience problems while serving in the New South Wales Police Force. A series of events in 2005 when he was employed at Gold Creek School led to him experiencing psychiatric symptoms. In March 2006 Comcare accepted liability for major depressive disorder, single episode and PTSD. The applicant left Gold Creek School and agreed to a graduated return to work program commencing in February 2006 at Campbell High School. Following an incident with a student in April 2006 the applicant’s placement was discontinued. He gained employment at the Department of Health and Ageing and in June 2006 his position was terminated due to budget cuts. He was diagnosed as suffering from an adjustment disorder in August 2006 and in September 2006 he was admitted to the Hyson Green inpatient unit. The Applicant commenced part-time employment in November 2006 and ceased working in this role in February 2007 as he was unable to complete assigned tasks due to poor concentration. The applicant was given placements in a number of agencies from September 2007 to May 2008 and in September 2008 he made a claim for permanent impairment. In January 2009 he had a verbal disagreement with and threatened staff of the rehabilitation provider. In February 2009 the Applicant was made subject to an Interim Personal Protection (Workplace) Order by the ACT Magistrates Court. The rehabilitation providers terminated the Applicant’s employment with effect from 13 April 2010.
The Tribunal found that the Applicant suffered an ‘injury’ as a consequence of the events at Gold Creek School in 2005. It further found that he continued to suffer from the same psychiatric disorder that afflicted him in 2005 until August 2016 when Comcare determined that he was no longer suffering the effects of the compensable condition. The question was whether the condition was still materially contributed to by his employment at Gold Creek School. The Tribunal noted that ‘[m]uch of the Applicant’s problems since 2005 have revolved around incidents connected with the rehabilitation process he was required to undertake.’ It found:
The traumas experienced after 2005 were not the result of the school incidents but a continuation of the Applicant’s underlying personality issues interacting and adversely impacting on the requirements of the rehabilitation and compensation process. In so far as there were additional emotional pressures placed on the Applicant because of the rehabilitation and compensation process, those pressures were not related to the events of 2005.
The Tribunal concluded that the applicant suffered a psychiatric ‘injury’ as a result of the events in 2005 but over time the injury had ‘been gradually overtaken by subsequent events’ at [338]. Whereas it was difficult for the Tribunal to ‘pinpoint the exact time’ when the events of 2005 no longer had a material contribution to the applicant’s condition, it was confident that by the time of the reviewable decision in October 2016 the degree of materiality no longer existed at [338].
The definition of ‘disease’ in the SRC Act applicable in Hennessey-Milne required an employment contribution of ‘a material degree’ which has since been amended to a requirement that the contribution of employment be ‘to a significant degree’ meaning a degree that is substantially more than material. The Tribunal has applied this higher level of required contribution of employment in determining whether the Applicant’s employment contributed, to a significant degree, to her ongoing condition.
Having regard to the decision in Hennessey-Milne and the authorities cited by the Deputy President, the Tribunal finds that the medical evidence in this case demonstrates that the Applicant’s compensable condition continued until 2 May 2017 and her employment contributed to a significant degree to her ongoing condition.
The evidence before the Tribunal, particularly the opinions of Dr Cohen and Dr Oelrichs, is that the Applicant continued to suffer from the effects of the April 2014 incident at least until the date of their reports on 19 December 2016 and 2 May 2017 respectively. Both specialists were of the opinion that the Applicant required ongoing pharmacology and psychological intervention to treat the condition that arose from or was aggravated by the incident. Dr Lovell’s opinion is that the effects of the Applicant’s compensable condition ceased when she commenced employment at Campbell High School at the beginning of 2016.
According to the Applicant’s written statements and oral evidence, she continued to experience the effects of her injury while working at Campbell High School throughout 2016. The placement at Campbell High School from early 2016 and the placements at other schools during 2014 and 2015, were arranged by Injury Management, the organisation responsible for supporting the Applicant’s rehabilitation. Her evidence is that the ‘uncertainty’ surrounding the support she was given during these placements contributed to her condition.
The Tribunal has considered whether the rehabilitation placements were activities ‘not related’ to the Applicant’s employment for the purposes of s 5B(2)(d). For the reasons that follow the Tribunal is satisfied that events at Campbell High School which impacted on the Applicant were related to her employment and contributed to her ongoing condition to a significant degree.
According to the Applicant, the ‘lockdown’ that occurred at Campbell High School in May 2016 caused her to realise she was vulnerable to experiencing ‘flashbacks’ to the April 2014 incident and a recurrence of her panic symptoms. Following this event, the Applicant discovered that there was no process in place to manage her injury and this further heightened her anxiety.
In May 2017 Dr Oelrichs was of the view that the Applicant was ‘still presenting with residual symptoms of her condition and still remains vulnerable to stressors which link and associate with [the 2014 incident].’ As Dr Oelrichs testified, the rehabilitation process itself was a stressor for the Applicant as it reminded her of the 2014 incident. The Tribunal prefers Dr Oelrichs’ opinion over that of Dr Lovell’s finding in May 2017 that the effects of the Applicant’s compensable condition ceased when she commenced employment at Campbell High School in early 2016. It does so for reason that the evidence before it is that events at the School during 2016, particularly the ‘lockdown’ in May 2016 were stressors linked to the 2014 incident.
On the basis of the evidence before it and for the reasons outlined above, the Tribunal is satisfied that the Applicant continued to suffer from the ailment, and her employment contributed to a significant degree to her ongoing condition, until at least May 2017.
Accordingly, the Tribunal accepts the Applicant’s submission that the Respondent is liable to pay compensation between the date of the indexed injury up until 2 May 2017.
Further, the Tribunal accepts the Applicant’s claim that she is entitlement to incapacity payments for the period 7 November 2016 to 16 December 2016
DECISION
Application 2016/7004
The Tribunal sets aside the first Reviewable Decision dated 18 November 2016 and, in substitution, decides that the Respondent is liable to pay compensation between the date of the indexed injury up until 2 May 2017.
Application 2018/1552
The Tribunal sets aside the second Reviewable Decision dated 23 February 2018 and, in substitution, decides that the Applicant is entitled to incapacity payments for the period 7 November 2016 to 16 December 2016.
I certify that the preceding 137 (one hundred and thirty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
........................................................................
Associate
Dated: 8 January 2019
Date(s) of hearing: 20 August 2018 - 22 August 2018 Date final submissions received: 22 August 2018 Counsel for the Applicant: Mr Jason Moffett Solicitors for the Applicant: Mr Joshua Carroll, Slater & Gordon Lawyers Counsel for the Respondent: Mr Matthew Gollan Solicitors for the Respondent: Mr Ronald Moss, Comcare Legal
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