Fittock and Comcare (Compensation)

[2022] AATA 72

Fittock and Comcare (Compensation) [2022] AATA 72 (21 January 2022)

Division:GENERAL DIVISION

File Number:2020/6273          

Re:Kylie Fittock  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:21 January 2022

Place:Brisbane

The Tribunal affirms the decision under review.

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

Member D Mitchell

CATCHWORD

COMPENSATION – claim for aggravation of previously accepted condition – aggravation of adjustment disorder with mixed anxiety and depressive symptoms – medical evidence outlining no psychological condition – Mooi principles – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Comcare v Mooi (1996) 69 FCR 439

Kelly and Comcare (Compensation) [2021] AATA 2575

Richardson and Comcare [2010] AATA 245

REASONS FOR DECISION

Member D Mitchell

21 January 2022

INTRODUCTION

1. Ms Kylie Fittock (the Applicant

   ) is seeking review of a decision of the Respondent dated

   
   

   29 September 2020.[1]

   [1]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T36, pages 445-446, Reviewable Decision; T34, pages 441-443, Decision Letter and T33, pages 428-440, Reasons for reviewable decision.

2. The reviewable decision[2] affirmed a determination dated 24 August 2020[3] that liability did not exist under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for a claimed “aggravation of adjustment disorder with mixed anxiety and depressive symptoms” condition, stated to have been first noticed on 30 May 2020.[4]

   [2]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T36, pages 445-446, Reviewable Decision.

   [3]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T26-T26.2, pages 384-399, Email attaching the Determination Decision and reasons for decision.

   [4]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T10, pages 157-165, Workers’ Compensation Claim.

   CLAIMS HISTORY

3. Since 2003, the Applicant has been employed by Services Australia (as it is now known) (the Agency) and was, at all material times, an APS4 Service Officer.[5]

   [5]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T10, page 164, Worker’s Compensation Claim.

4. The Applicant previously claimed workers’ compensation for a depressive illness. The Applicant subsequently sought review of the Respondent’s decision to deny liability for the claimed condition. The claim was settled by decision of the Tribunal, issued as a result of the agreement of the parties, finding that liability was accepted for “aggravation of an adjustment disorder” sustained on 21 April 2017. The Tribunal noted that the parties agreed that the Respondent was liable to pay compensation to the Applicant, under sections 16 and 19 of the SRC Act, from 21 April 2017 to 30 September 2019.[6]

   [6]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T14.4, pages 188-189, Decision of the Administrative Appeals Tribunal accepting liability for an aggravation of an adjustment disorder.

5. In implementing that decision, the Respondent made further decisions in relation to the extent of the Applicant’s entitlements in relation to reimbursement for medical expenses and incapacity payments for time off work. As a result, the Applicant made further applications for review of the Respondent’s decisions to the Tribunal.

6. The Applicant had various periods of time off work and consequently, rehabilitation providers were engaged to assist the Applicant’s return to work at various stages from 2018.

7. In a rehabilitation closure report dated 1 April 2020, it was clear that the Applicant’s applications for review of decisions lodged with the Tribunal had impacted upon her anxiety symptoms and ability to return to full-time work.[7] The report recorded that there were specific barriers for the Applicant’s return to work over the duration of the referral (being from at least 11 September 2018 up to the date of report). Barriers recorded included:[8]

   ……..

   ·     [The Applicant] submitted a request for her claim to be reviewed by the AAT which had an ongoing impact on [her] psychological symptoms and capacity to increase her hours at work;

   ·     [The Applicant’s] reported capacity for work and that certified by her treating practitioners changed unexpectedly and her capacity to increase in hours was delayed due to an exacerbation of her symptoms as a result of the AAT.

   …..

   [7]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T14.9, pages 247-255, Closure Report.

   [8]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T14.9, pages 252-253, Closure Report.

8. On 8 May 2020, the Applicant wrote to Ms Karen Brown, Service Centre Manager, seeking a part-time work arrangement to deal with her Tribunal proceedings. The Applicant wrote that she did not want her mental health to slip to where it was back in 2018, or to reclaim to have a current Comcare claim. She advised that she could get medical evidence to support her request.[9]

   [9]     Exhibit 1, Electronic Hearing Book, R9, T Documents, T14.21, page 312, Email re part-time hours.

9. Between early and mid-2020, administrative action was taken by the Agency, including appraisals of the Applicant’s performance, coaching sessions with the Applicant in respect of her employment, and informal counselling actions in respect of her employment.[10]

   [10]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T14-T14.23, pages 175-321, Email from Agency to the Respondent and enclosures.

10. On 10 June 2020, the Applicant wrote to Ms Brown seeking to be moved into a team with a different team leader, stating that Jade (being Ms Jade King, her current Team Leader) was making her unwell. The Applicant described an interaction with her Team Leader the day before and stated that she did not expect to be reprimanded for doing something that she thought would create a better working environment.[11]

    [11]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T29.2, page 419-420, Applicant’s supporting statement including email extracts.

11. On 11 June 2020, Ms Brown replied to the Applicant advising that she would not be granting her request to be moved into another team.[12] The Applicant responded shortly after, stating:[13]

    I love my job, colleagues and this is the only thing I have an issue with. It just spins me out. Happy if you and Jade are able to help me overcome this. I had the best day on Tuesday and feeling really positive until 4.45 pm and this all changed. I ended up on sleeping that night and struggling to talk myself down to being able to come to work. I can’t just swallow it as my body reacts and feel much better that I was able to let Jade know how I feel……

    [12]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T29.2, page 419, Applicant’s supporting statement including email extracts.

    [13]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T29.2, page 418, Applicant’s supporting statement including email extracts.

12. On 25 June 2020, the Applicant submitted a claim for workers’ compensation for an aggravation of adjustment disorder with mixed anxiety and depressive symptoms first noticed on 30 May 2020 (claimed injury).[14]

    [14]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T10, pages 157-165, Workers’ Compensation Claim.

13. In an Employee Statement dated 26 June 2020, in response to the question “When did your injury happen or when did you notice your disease?”, the Applicant provided:[15]

    After feeling unwell and not with it on Saturday 30^th May, I blacked out.

    [15]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T9.1, page 156, Employee Statement.

14. In an email dated 26 June 2020, the Applicant set out the following timeline:[16]

    [16]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T8, pages 152-153, Applicant’s email setting out a timeline.

    29.04.2020

    Jade King addressed the site and I felt that we were spoken to inappropriately. I had previously advised Jade in Coaching that I find the morning stand up demoralising and difficult to start the day with being reprimanded as a group. I had coaching with Jade first up after the stand up and she commenced to say that I was excluded from what she had spoken about due to my inbox being clear. After this I attended a Team Meeting and raised the manner in which we were spoken to that morning. Others spoke up about their similar feelings and I was later approached by Union Rep asking me about this as was bought to her attention by another staff member prior to the Team Meeting, with the word Bullying be mentioned.

    During May I started to have more difficulty sleeping, withdrawing from social activities, dizzy, headaches and extremely tired. I had to put a lot of energy to calm myself down at the work place and supported by my peers to continue turning up.

    30.05.2020

    I was feeling funny all day and mentioned to my friend early in the morning that I was just not right, being forgetful and not being able to think clearly. Early that evening I fell and have no further memory of this day. I was conscience [sic] to say that I did not need an ambulance, although can not remember this. I woke in the morning with injuries from the fall and had to ask what happened. I made an appointment with Abbott Medical as I was scared and wanted to investigate what was going on.

    01.06.2020 - Karen Warburton discovered that my diabetes needed attention immediately and more thorough test taken. My head is once again full of sores from my nervous scratching and I have started to grind my teeth in my sleep. Even though I was somewhat able to control my head in the work place, my body was reacting and failing me.

    04.06.2020-05.06.2020

    Had to obtain re referral to Dr Alex Simpson due to aggravation of condition.

    09.06.2020 (would need to confirm from emails)

    There have been some incidents where my condition appeared in the workplace and Karen Brown had offered that I come to her and talk about what was happening and unfortunately Karen was not in when next I was triggered. Jade approached me at 4.45 pm and spoke to me. It was not what she said it was her manner being similar to 29.04.20. I did not sleep that night and I asked to be transferred to another Team Leader. I spoke with Jade and told her that the manner in which she speaks to me is making me sick. Upon Karen's return it was confirmed that I was to remain in Jade's Team with helping me.

    10.06-17.06.2020

    I continued to struggle and attempted to keep my brave face on.

    18.06.2020

    AAT/Comcare conference pulled me deeper into despair and on 19.06.2020 I requested for the next week to take Recreation Leave in lieu of Personal Leave. Appointment with new GP at Abbott Medical in the afternoon. Discussion with Karen Brown regarding the need to make my health my priority and that I was too sick to keep pretending that I was OK. New GP not appropriate as she is leaving the practice in the near future and further appointment made with another Doctor at the practice 23.06.2020.

15. On 9 July 2020, the Applicant attended an appointment with Dr Alexandra Simpson, psychiatrist, who provided a letter dated the same day.[17] Dr Simpson reported that she had not seen the Applicant since August 2019 and outlined that the Applicant had reported that there had been ongoing stressors with both the Tribunal and her workplace. Dr Simpson stated that “it does appear that it is the ongoing interpersonal interactions with immediate superiors that seem to cause her stress and make her anxious.”[18]

    [17]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T28.1, pages 410-412, Clinical Records from Abbott Medical Centre, Letter of Dr Alexandra Simpson.

    [18]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T28.1, page 410, Clinical Records of Abbott Medical Centre, Letter of Dr Alexandra Simpson.

16. On 20 August 2020, Dr Derek Lovell, consultant psychiatrist, provided an independent medical report at the request of the Respondent.[19] Dr Lovell, after having examined the Applicant on 7 August 2020, opined that the Applicant was not suffering from a psychological condition. Dr Lovell reported:[20]

    [19]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T25, pages 371-383, Report of Dr Derek Lovell.

    [20]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T25, pages 380-381, Report of Dr Derek Lovell.

    There was ongoing anxiety with the AAT documentation related to the earlier contested claim.

    She requested a change in team leader. This was declined and subsequently, she left the workplace.

    The activities she described during the period of time away and the psychological symptoms are not suggestive of any psychological diagnosis. She may well have been stressed and angered with her request for a team leader change was not agreed upon.

    The response to Section 71 suggests that all behaviours were reasonable on the part of her Team Leader and the EL1. I am not of the view that she has suffered any significant psychological condition that relates to work.

    ……

    [The Applicant] had a previous history of workplace difficulties in the context of working temporary duties towards leadership. She complained that she was either not given these or that she was set up to fail. She developed some symptoms of anxiety and depression as a result of interpersonal sensitivity and defensiveness. …….
    
    

    Currently, the symptoms she described are not outside the boundaries of normal mental functioning and behaviour based on the activities that she continued whilst away from the workplace, and on the vague and changing symptoms of sleep disturbance and stress.

    She considers that workplace interactions aggravated her blood sugar. She was critical of the protocols for COVID-19. She again experienced difficulties with a reasonable management style.

    There is no current diagnosis.

    …..

    She does not suffer a psychological condition.

    …..

    Previously, she may have suffered from a psychological condition, but this condition is now in remission. She is angry and aggrieved that the Comcare mediation payments have not been made. She was stressed by having to read a further 600 pages and again, there were interpersonal difficulties with management. Concessions were made in allowing her to work virtually with no face-to-face work over eight weeks. Subsequently, she asked for a change of manager and this was denied, and she left work.

    ……

    Taking into account all relevant contributing factors, I am not of the view that her employment has contributed to a significant degree to the onset of any psychological condition.

17. On 24 August 2020, the Applicant’s claim for workers’ compensation was denied.[21] The Applicant sought an internal review of the determination.[22]

    [21] Exhibit 1, Electronic Hearing Book, R9, T Documents, T26.1, pages 386-387, Determination: deny liability for aggravation of adjustment disorder with mixed anxiety and depressive symptoms under section 14.

    [22]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T29-T29.2, pages 413-420, Applicant’s email attaching request for reconsideration and submission with email extracts.

18. On 29 September 2020, the Respondent affirmed the determination.[23]

    [23]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T36, pages 445-446, Reviewable Decision.

19. On 11 October 2021, the Applicant sought review of the Respondent’s decision by way of application to this Tribunal.[24]

    [24]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T1, pages 133-137, Application for Review of       Decision.

20. On 23 June 2021, Dr Lovell provided a supplementary report, having reviewed further documentation that had been provided throughout the Tribunal process.[25] Dr Lovell reported:[26]

    [25]    Exhibit 1, Electronic Hearing Book, R5, Report of Dr Derek Lovell, pages 36-47.

    [26]    Exhibit 1, Electronic Hearing Book, R5, Report of Dr Derek Lovell, pages 43-44.

    I maintain my initial opinion after reviewing the medical records and the PBS records and in particular note the contribution of the AAT and [the Applicant’s] heightened interpersonal sensitivity and her tendency to project her medical difficulties onto the workplace.

    ….

    Whilst she described feeling stressed and interpreted appropriate statements as being unduly critical and targeting her, this appears to be a long-term characteristic and the symptoms she described to me did not meet the diagnostic threshold for any psychiatric disorder. They are repetitive behavioural pattern.

    …..

    There is no new ailment or aggravation.

    ….

    I maintain my opinion that the informal counselling in the workplace, the response of the team leader to remove her from face-to-face contact and the stand-up meeting were reasonable actions and not significant in contributing to any medical condition.

    The major issue is her ongoing personality style, a lack of insight into her own contribution to her difficulties and her inability to accept feedback. There was significant stress related to the AAT appeal and the previous claim.

    [The Applicant] had already had a change of teams and needed to learn how to interact with team leaders appropriately with mediation rather than a further change.

    There are ongoing issues related to diabetes which was poorly controlled and morbid obesity for which she had undergone gastric sleeve procedure.

    …..

    I do not believe employment factors made a significant contribution.

21. A Hearing was held on 5, 6 and 7 October 2021. The Applicant appeared in person, was self-represented, and gave evidence under affirmation. The Respondent was represented by Mr Matthew Hawker of Sparke Helmore Lawyers.

    THE LAW

22. Section 14 of the SRC Act deals with compensation for injuries and relevantly provides:

    (1)Subject to this Part, 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.

23. Section 5A of the SRC Act defines “injury” to mean:

    (1)In this Act:

    “injury” means:

    (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.

    (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a) a reasonable appraisal of the employee’s performance;

    (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

    (c) a reasonable suspension action in respect of the employee’s employment;

    (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

    (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

24. Section 5B of the SRC Act defines “disease” to mean:

    (1)In this Act:

    “disease” means:

    (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 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.

    ….

    (3)      In this Act:

    “significant degree” means a degree that is substantially more than material.

1. Section 4 of the SRC Act defines “ailment” as any physical or mental ailment, disorder, effect or morbid condition (whether of sudden onset or gradual development).

2. The leading case authority in relation to whether or not a person has suffered from a mental ailment is Comcare v Mooi (1996) 69 FCR 439 (Mooi). In that case, the Respondent appealed the decision of the Tribunal which found that Mr Mooi was entitled to compensation. In recording the findings of the Tribunal in Mooi, Drummond J said at [8]:

   …It seems clear that the Tribunal found that the respondent was entitled to compensation on the basis that, although he was not suffering from any mental illness, mental disturbance or psychological disorder as a result of the work-related stress he was subjected to, the condition that those stressors contributed to produce in him, which the Tribunal described as ‘psychological stress’ and ‘work-related stress’, had an effect on his capacity for work and was still sufficient to amount to an injury within s 14….

3. Drummond J held this approach to be erroneous. In allowing the Respondent’s appeal, Drummond J outlined the following at [12] (emphasis added):

   …so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s 14(1).

   ISSUES AND FINDINGS

4. The primary issue before the Tribunal is whether the Applicant is entitled to compensation under section 14 of the SRC Act in respect of the claimed injury.

5. In considering this issue, a number of questions arise. For the reasons outlined below, the Tribunal makes the following findings in relation to those questions:

   1.Did the Applicant suffer from an ailment or aggravation of such an ailment for the purposes of the definition of disease in section 5B of the SRC Act? (primary question)

   No.

   2.If so, was the ailment or aggravation of such an ailment contributed to, to a significant degree, by her employment, for the purposes of the definition of disease in section 5B of the SRC Act and may, therefore, be considered an injury for the purposes of section 5A(1)(a) of the SRC Act?

   Given the Tribunal’s finding at question 1 above, this issue does not arise.

   3.If so, was the disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment, for the purposes of section 5A(1) of the SRC Act and is, therefore, excluded from the definition of injury?

   Given the Tribunal’s findings at questions 1 and 2 above, this issue does not arise.

6. The Tribunal notes that the evidence before it contained numerous documents which included (but was not limited to) medical reports; medical records; employment related documents, including those relating to the Applicant’s performance and return to work processes; and witness statements from the Applicant’s relevant supervisors, various colleagues’ and one of her long-time friends’. This evidence, when read together and considered in full, paints a picture of the Applicant’s work and medical situation. Such material is only reproduced and directly referenced in this decision to the extent that it relates to the resolution of the primary question of whether or not the Applicant suffered from an ailment or aggravation of such an ailment, for the purposes of the definition of disease in section 5B of the SRC Act.

7. To that extent, the Tribunal acknowledges both the written and oral evidence of each of the lay witnesses put before it. The Tribunal notes, however, that given its finding in relation to the primary issue, it is unnecessary to reproduce that evidence in this decision.

   CONSIDERATION

8. Throughout the review process of the Applicant’s present claim for workers’ compensation, the Applicant has provided a number of written statements and timelines that outline her experiences in the workplace. The Applicant consistently characterised those experiences as constituting her being bullied and watched by her team leader (with reference made to both Ms King and previous team leaders). The Applicant, also, consistently reported enjoying her work and engaging with her colleagues; however, she struggled with management and how she perceived that they treat her unfairly.

9. At Hearing, the Applicant told the Tribunal that:

   Services Australia do not know how to deal with me because I am resilient and unlike others, are continuing to attempt to return to work. Leadership have me labelled as a troublemaker and difficult to manage. The toxic culture is ingrained and comes from the very top of the management ladder. Team leaders are rewarded for continuing to cultivate this culture.

10. At Hearing, the Applicant questioned why she would not have a claimable condition if she is still being treated for anxiety and depression. She told the Tribunal she does not agree with the opinion of Dr Lovell. The Applicant asserted that her assessment with Dr Lovell was 30 minutes in duration. In the Applicant’s written opening submissions (of which, she handed up at Hearing), she stated:

    Dr Lovell’s assessment is bias towards Comcare and this is by no fault of his own. I am still unsure if it is Comcare’s incompetence or if it is intentionally misleading that Dr Lovell was provided with previous untrue information. This information I had already proven to be false, and Dr Lovell can only go on what he has been given. The misleading information is to steer the assessment in favour of a Comcare rejection. Comcare got what they paid for. How is it now my issue that Dr Lovell has failed to identify my mental health conditions that I have and remain to be treated for since April 2017? Comcare from the get-go were steering Dr Lovell down a fabricated path.

11. The Applicant told the Tribunal she attributes the incident, where she passed out on

    
    

    30 May 2020, to her workplace, as, she contended that work was the only thing that stresses her out, and at that time she was:

    …being constantly under the thumb, or looked at through every second of my movement by my team leader. And she would approach me and chastise me in front of others. And there was no reason for her to be on my case, my performance was good, everything was good, there was no – other than she seemed to have an understanding that I was trouble and she had to do that.

12. On cross-examination, when asked whether she agreed with Dr Lovell’s opinion that, the GP notes which indicated that the medical attendant did not attribute the incident on 30 May 2020 to work-related stress, said she did not agree and that it must have been incorrectly recorded at the medical practice.

13. When asked whether she had provided Dr Lovell’s report to Dr Simpson, the Applicant told the Tribunal she had not. When asked, given she had disagreed with Dr Lovell’s report, whether she had considered getting her own report, the Applicant said she had not.

14. At Hearing, Dr Lovell appeared by Microsoft Teams, gave evidence under affirmation and confirmed his name and qualifications. Dr Lovell confirmed that he assessed the Applicant on 7 August 2020 and, as a result, prepared a report dated 20 August 2020, and upon considering a further bundle of documents provided to him, prepared a supplementary report dated 23 June 2021. Other than correcting one typographical error, Dr Lovell confirmed that he continued to hold the opinions expressed within those reports.

15. Dr Lovell told the Tribunal that his assessment of the Applicant took place between 10am and 11.20am.

16. When asked to describe the process he takes in formulating his independent opinion,

    
    

    Dr Lovell told the Tribunal:

    When a referral is made, I firstly ensure that it’s not a conflict of interest, that I haven’t treated the claimant as a patient and that I haven’t assessment [sic] the claimant for any other matter. Then, I look at the brief and usually I’m provided with background information and that is listed in the front of the report. I read that prior to the clinical interview. At clinical interview, I take a history that addresses the major issues and the questions which have been put forward to me by the referring body. I take a full psychiatric history. My observations are annotated under “Mental state examination”, and I read a conclusion and an opinion and answer the questions which have been posed to me by the referring body. My role is not to make suggestions about treatment or to criticise treatment that has been provided to the applicant. It is to provide an external, independent, objective opinion as to the nature of symptoms, whether there’s a diagnosis and causation in this particular case.

17. Dr Lovell told the Tribunal that the comment in his report: “This suggests a long-standing pattern of difficulties dealing with authority figures and a tendency to be overly sensitive to feedback. This is a personality trait rather than an illness,” was his comment on the review of Dr Simpson’s report and the earlier documents, and those provided at the time of his supplementary report.

18. In response to questions asked by the Applicant, Dr Lovell told the Tribunal that:

    ·He does not use the DASS-21 or K10 tools as these are screening instruments which general practitioners use to formulate the need for a mental health care plan.

    ·His assessment was based largely on the history and the clinical presentation and the chronology of events.

    ·He based his assessment on the information provided to him by the Respondent, as well as the history he got from the Applicant and his observations of her during the clinical interview.

19. The Tribunal noted that Dr Lovell, in his reports, had opined that the Applicant was not suffering from a psychiatric condition at the time of his reports; however, she was still taking anti-depressants. The Tribunal asked Dr Lovell whether there were reasons that anti-depressants continue to be taken even when, perhaps, a condition may not be present.

    
    

    Dr Lovell told the Tribunal:

    It’s not uncommon for anti-depressants to be continued for two to three years after they’ve been commenced. There is evidence that there’s a reduced risk of relapse after the prescription of anti-depressants and they’re often continued. The ongoing use doesn’t necessarily mean any new symptoms or aggravation.

20. The Applicant takes issue with Dr Lovell’s report, in part, due to him having been provided with a report of Dr O’Hare, consultant psychiatrist, which she considers contains a number of inaccuracies. She told the Tribunal, in closing submissions, that she should have asked Dr Lovell about the length of their appointment, as she recalls there being technical difficulties in connecting to the video link. The Applicant told the Tribunal that, during the assessment with Dr Lovell, she was in the comfort of her bedroom, at home, which is a safe place for her, and that how she is at home, is different to how she is in the workplace.

21. The Applicant contended that she had suffered from an aggravation of an adjustment disorder with mixed anxiety and depressive symptoms as a result of her workplace. The Applicant provided in her Statement of Facts, Issues and Contentions[27] that she seeks that the Tribunal make a decision that she be compensated “for all leave and reduced hours taken due to her mental health condition caused by working in a toxic unsupportive work environment. Along with the ongoing medical costs for treatment of these conditions.”[28]

    [27]    Exhibit 1, Electronic Hearing Book, A9, Applicant’s Statement of Issues, Fact and Contentions, pages 498- 500.

    [28]    Exhibit 1, Electronic Hearing Book, A9, Applicant’s Statement of Issues, Fact and Contentions, page 500.

22. The Respondent submitted that it relied on its Statement of Facts, Issues and Contentions as filed[29] and the evidence of Dr Lovell. As such, the Respondent contended that the Applicant had not suffered from an ailment, as defined in section 4 of the SRC Act, or aggravation of such an ailment, for the purposes of the definition of disease in section 5B of the SRC Act.[30]

    [29]    Exhibit 1, Electronic Hearing Book, R12, Respondent’s Amended Statement of Issues, Fact and Contentions, pages 470-477.

    [30]    Exhibit 1, Electronic Hearing Book, R12, Respondent’s Amended Statement of Issues, Fact and Contentions, page 474, paragraphs 21-22.

23. The Respondent submitted that Dr Lovell’s evidence ought to be accepted as it is the only independent expert evidence, commenting on the relevant material and issues before the Tribunal. The Respondent contended that the Tribunal should accept the evidence provided by Dr Lovell, for the following reasons:

    ·Dr Lovell had the benefit of having been provided with a significant volume of documentation that he considered in formulating his opinion. The documents provided a balanced account from the workplace, given it included all of the lay witness statements. He was also provided with the summonsed records.

    ·Dr Lovell confirmed that his assessment with the Applicant was 1 hour and 20 minutes in duration, almost three times that which the Applicant alleged.

    ·Dr Lovell conducted the independent assessment, which included a mental state examination, as well as his observations.

    ·Dr Lovell put together all of the information before him and formulated a comprehensive written opinion based and backed by a well-reasoned and comprehensive approach.

24. The Respondent contended that the Applicant did not, in 2020, suffer a new ailment or aggravation of an ailment. The Respondent submitted that it relied on the decision in the Mooi case, which has been applied by the Tribunal on numerous occasions and, in particular, drew the Tribunal’s attention to the decisions in Kelly and Comcare [2021] AATA 2575 at [35]-[38] and Richardson and Comcare [2010] AATA 245 at [37]. The Respondent submitted that Dr Lovell provided expert opinion that the Applicant’s behaviour was not outside the boundaries of normal mental functioning and behaviour and, on the basis that is accepted, then the Mooi test means that the Applicant has not suffered an ailment or aggravation of such.

25. The Tribunal sees the logic in the Applicant’s line of thought that, if she does not have a mental health condition, then why is she still be treated for depression and anxiety, noting that she has continued to take medication throughout the time in question. However, on review of the medical evidence and, in particular, the evidence provided by

    
    

    Dr Lovell, it is clear that anti-depressants have a wider use and, as such, the prescription and taking of such medication does not, in itself, mean that a person is suffering from a psychological condition.

26. In considering the Applicant’s contentions as to why the Tribunal should not accept the evidence of Dr Lovell, the Tribunal notes that Dr Lovell’s evidence was that he considered all of the documentary material provided to him, his assessment of the Applicant and what she told him, to form his view. There is nothing before the Tribunal to indicate that Dr Lovell put undue weight on the report of Dr O’Hare. Further, there is no evidence before the Tribunal corroborating the Applicant’s evidence that the assessment she underwent with Dr Lovell was not a comprehensive assessment with a duration in excess of an hour.

27. The Tribunal accepts the contentions of the Respondent in relation to the reliability of evidence provided by Dr Lovell. Dr Lovell is the only specialist, or for that matter, medical professional:

    (a)who had been provided with all relevant material;

    (b)who provided comprehensive reports that dealt with the documentary material, as well as a mental state examination and observations; and

    (c)gave evidence at Hearing and was available for cross-examined.

28. On the other hand, the Applicant sought to rely on the letter of Dr Simpson, of whom she advised the Tribunal had not been provided with the reports of Dr Lovell or other relevant documents. The evidence before the Tribunal confirmed that the Applicant had not seen

    
    

    Dr Simpson between August 2019 and her appointment on 9 July 2020 and further, had not seen her again after that appointment. In the letter dated 9 July 2020, Dr Simpson did not provide an opinion that indicated the existence of a psychological ailment, disorder or defect. Dr Simpson made it clear that she was relying on the Applicant’s self-reports and commented that:[31]

    I got the impression that other staff at the same level as [the Applicant] all feel that they are being belittled or talked down to or micromanaged but [the Applicant’s] very subjective experience and this seems to be the main issue.

    [31]    Exhibit 1, Electronic Hearing Book, R9, T Documents, T28.1, pages 410-412, Clinical Records from Abbott Medical Centre, Letter of Dr Alexandra Simpson.

29. Given that Dr Simpson was not provided with any documentary evidence in relation to this application, nor has she provided an independent medical examination report, the Tribunal considers her letter to be of limited assistance to the Applicant’s case.

30. For these reasons, the Tribunal prefers and accepts the evidence of Dr Lovell that the Applicant had not suffered, and was not suffering from, a psychological condition at the time of his reports.

31. As a result of the Mooi case, where a psychological condition has not been diagnosed, a person must be able to demonstrate that, having regards to their circumstances, they are in a condition that is outside the boundaries of normal mental functioning and behaviour, in order for it to be established that they were suffering from a disease, for the purposes of section 5B of the SRC Act.

32. Dr Lovell was asked to specifically comment on this point and provided that the symptoms the Applicant had described were not outside the boundaries of normal mental functioning and behaviour, based on the activities that she continued whilst away from the workplace, and on the vague and changing symptoms of sleep disturbance and stress. The Tribunal notes that the Applicant confirmed that she was undertaking the activities described by

    
    

    Dr Lovell while away from the workplace.

33. Dr Lovell’s opinion was that while the Applicant described feeling stressed and interpreted appropriate statements as being unduly critical and targeting her, this appeared to be a long-term personal characteristic, and the symptoms she described to him did not meet the diagnosis threshold for any psychiatric disorder, rather they were a repetitive behavioural pattern. Dr Lovell explained that the major issue was the Applicant’s ongoing personality style, a lack of insight into her own contribution to her difficulties and her inability to accept feedback.

34. The Tribunal agrees with the decision in Kelly and Comcare,[32] and as such, the statement of the Tribunal in Richardson and Comcare[33] that, implicit in the reasons of Drummond J in the Mooi case, is that “there are circumstances where the work environment can generate ‘debilitating stress’ without giving rise to a ‘disease’.”

    [32]    Kelly v Comcare [2021] AATA 2575 at [37].

    [33]    Richardson and Comcare [2010] AATA 245 at [37].

1. While the Tribunal does not doubt that the Applicant, at times, feels anxious and stressed as a result of her workplace, it is clear, based on her own submissions and the opinion of

   
   

   Dr Lovell, that she has a now ingrained belief regarding the management of the Agency and how she is perceived.

2. As such, based on the evidence before it, the Tribunal is not satisfied, on the balance of probabilities, that the Applicant suffered a psychological ailment or aggravation of a psychological ailment, or that she demonstrated she was in a condition that is outside the boundaries of normal mental functioning and behaviour.

3. The Tribunal finds that the Applicant does not have an ailment for the purposes of section 4 of the SRC Act and, as such, does not have a disease or aggravation of a disease, for the purposes of section 5B of the SRC Act.

   DECISON

4. For the reasons set out above, the Tribunal finds that the Applicant does not have an injury, for the purposes of section 5A of the SRC Act and, as such, compensation is not payable, pursuant to section 14 of the SRC Act, in relation to the Applicant’s claimed aggravation of adjustment disorder with mixed anxiety and depressive symptoms.

5. Accordingly, the decision under review is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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

Associate

Dated: 21 January 2022

Date of Hearing:

5, 6 and 7 October 2021

Applicant:

Solicitor Advocate for the Respondent:

In Person

Mr Matthew Hawker

Solicitors for the Respondent: 

Sparke Helmore Lawyers

Ms Jenny Proimos

Comcare