Funk and Comcare
[2011] AATA 256
•18 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 256
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5521
GENERAL ADMINISTRATIVE DIVISION ) Re Lesley Funk Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr John Campbell, MemberDate18 April 2011
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]..........................
Jill Toohey
Senior Member
CATCHWORDS
COMPENSATION – PTSD following assault – whether effects had ceased – long-standing alcohol and benzodiazepine dependence – decision under review affirmed
Safety, Rehabilitation Compensation Act 1988, ss 14, 19
REASONS FOR DECISION
18 April 2011 Senior Member Jill Toohey
Dr John Campbell, MemberIntroduction
1. On 26 March 2007, Ms Lesley Funk was on her way home from work at the Department of Education, Employment and Workplace Relations (DEEWR) in Canberra when she was assaulted by a man who threatened her with a knife.
2. On 28 May 2007, Ms Funk lodged a claim under s 14 of the Safety, Rehabilitation Compensation Act 1988 (the Act) for compensation for post traumatic stress disorder (PTSD) arising out of the assault.
3. Comcare initially denied liability for any injury but, on 12 December 2007, it accepted liability under s 19 of the Act for Ms Funk’s incapacity by reason of PTSD which it found was a frank injury sustained on 26 March 2007. By subsequent determinations, Comcare continued to accept liability for Ms Funk’s incapacity.
4. On 6 May 2009, Comcare accepted liability for Ms Funk’s incapacity for the period 30 April 2009 to 3 June 2009. On 15 May 2009, DEEWR asked Comcare to reconsider this determination, contending that Ms Funk no longer suffered from PTSD, and that her incapacity for work was by then attributable to her pre-existing psychological condition and her dependence on benzodiazepines.
5. By determinations on 3 June 2009 and 17 June 2009, Comcare accepted liability for Ms Funk’s incapacity from 4 June 2009 to 8 December 2009. On 18 November 2009, Comcare reviewed the determinations made on 6 May 2009, 3 June 2009 and 17 June 2009, and determined that Ms Funk had ceased to suffer the effects of the injury. Although a psychiatrist’s report indicated that her symptoms had ceased by November 2008, Comcare considered it fair, in the circumstances, to determine that its liability ceased on 30 April 2009, being the start of the period covered by the determination under review.
6. Comcare further determined that Ms Funk’s PTSD was a disease, as defined in s 5B of the Act. Applying s 7(4) of the Act, it determined that the date of her injury was 10 April 2007, being the date from which her doctor had certified her unfit for work on account of her injury.
7. Ms Funk seeks review of the decision that the effects of her PTSD ceased by 30 April 2009.
Evidence before the Tribunal
8. Ms Funk gave oral evidence before the Tribunal. She appeared to us to do so frankly and without exaggeration. However, she was frequently unable to remember dates and the sequence of events, and she conceded her memory is poor.
9. Dr Robert Lewin, a psychiatrist who examined Ms Funk for the purposes of a medico-legal assessment, gave oral evidence. Otherwise, the medical evidence is found in a substantial body of clinical notes, reports from treating doctors and medico-legal assessments. There are variations in Ms Funk’s history recorded by some doctors, and some dates and sequences of events recorded in the reports appear to be incorrect. It is possible that Ms Funk herself reported dates incorrectly but little turns on any inaccuracies or inconsistencies and, where she could not herself remember events, Ms Funk agreed that the dates recorded in clinical notes were most likely correct.
Background
10. Ms Funk is 48 years old. She has experienced many traumatic events in her life. Her parents were both alcoholics. They separated when she was very young and she rarely saw her father again. Her mother, to whom she was close, was kind when she was sober, but violent and abusive when drunk.
11. Ms Funk’s first child, a son, was born when she was 18. She suffered from depression after the birth. Her son was adopted when he was eight months old and she has had no contact with him. Her second child, a daughter who was born when Ms Funk was 20, went to live with her father in Victoria from a young age because of Ms Funk’s drinking. She returned to live with Ms Funk when she was about 15.
12. Ms Funk started drinking around the age of 12 to 14 and quickly developed a serious drinking problem. She spent several weeks detoxifying in hospital when she was 23, and did not drink again for more than 20 years. She was raped by a stranger when she was in her early twenties.
13. Ms Funk was married for two years in her early twenties. She later had a seven-year long de facto relationship. She married her present husband in March 2001. They have separated several times and currently live separated under the same roof. Ms Funk’s daughter lives with them and is her mother’s full time carer. Ms Funk has been on a disability support pension since about July 2005 in the periods she was not working and eligible.
14. Ms Funk’s mother died in April 2001. She had numerous amputations because of gangrene caused by diabetes, and her death was slow and painful. Ms Funk found her death extremely traumatising. She started drinking heavily and using benzodiazepines regularly around this time, and quickly became dependent on both. Her father died of gangrene several months after her mother.
15. Ms Funk has worked in various positions over the years including in public service agencies in Sydney and Canberra. In 2001, she was working at the Department of Veterans Affairs but left shortly after her mother died. She moved to Canberra in 2003 and she worked in a jewellery shop, and then briefly at the Department of Health before starting work at DEEWR in December 2006. She was working on a six-month contract at DEEWR when the assault happened.
The incident on 26 March 2007
16. Ms Funk was walking to the bus after work when a man approached her and asked for money. He seemed to be intoxicated and said he had just been released from prison. He had a knife strapped to his wrist which he held to Ms Funk’s neck. She gave him money and a cigarette then managed to extricate herself and walk to the bus as it approached. The man walked behind her with the knife in her back but did not follow her onto the bus.
17. Comcare does not dispute Ms Funk’s account of this incident and we have no reason to doubt her. There can be no doubt that it was a frightening and traumatising event and Comcare accepts Ms Funk developed PTSD as a result. Other than for one or two days later in that week, Ms Funk has not worked since.
Ms Funk’s medical history before 26 March 2007
18. It is not in dispute that Ms Funk has suffered for many years from a range of psychological symptoms, including major depression, panic attacks and anxiety disorder. Nor is it in dispute that she has an addiction to alcohol and, since around 2001, has been dependent on benzodiazepines. Her conditions are confirmed in numerous medical reports and clinical notes.
19. After her mother died, Ms Funk started to experience anxiety and panic attacks. In May 2001, she saw Dr Danh Nguyen, a general practitioner, who prescribed Xanax and Aropax, anti-depressant medications. Dr Nguyen referred her to Dr Julian Parmigiani, psychiatrist, who diagnosed her as suffering from major depression and prescribed Effexor and Xanax. Other than once, some years earlier when she was afraid of flying, Ms Funk had not previously used benzodiazepines.
20. Ms Funk says she left work at DVA in about October 2001 because she was having panic attacks and she realised, after her mother died, that there was more to life than work. She found her mother’s death extraordinarily distressing and was not coping. According to Dr Parmigiani, she was experiencing shortness of breath, shaking, vomiting, excessive sleeping and decreased appetite around this time.
21. In April 2002, Ms Funk spent three weeks in St John of God Hospital (SJGH) in Sydney on Dr Nguyen’s referral. She had stopped seeing Dr Parmigiani by then, she says because he did not take notice that her weight had dropped to 44 kilograms and she was vomiting blood every day. At SJGH she stopped taking Effexor but was still taking Xanax.
22. In 2003, Ms Funk moved to Queanbeyan, near Canberra, with the aim of resuming work in the public service. At first, she worked in a jewellery shop for about 15 months. Her general practitioner was Dr Ross Hendry. She was still having panic attacks, despite the Xanax, and she was also taking Valium prescribed by Dr Nguyen. One panic attack, in October 2003, was so severe she thought she was having a heart attack. She went to Queanbeyan Hospital Emergency Department where she was referred to the hospital’s Mental Health team and was treated by Dr Todd Cash, a psychiatry registrar.
23. Ms Funk’s work history around this time is not entirely clear. After she left the jewellery shop, she worked briefly for the Department of Health but says she hated the job and was not coping, and she did not stay long. There was a period around this time when she had received an inheritance from her mother and did not need to work.
24. In October 2005, Dr Hendry referred Ms Funk to psychiatrist, Dr Robert Tym to help her to reduce her medications. Dr Tym did not diagnose Major Depression or PTSD. In November 2005, Dr Hendry noted that Ms Funk was dissatisfied with Dr Tym “as he thinks she’s a bludger because she resigned”.
25. In November 2005, Ms Funk and her daughter were living in Queanbeyan when a man broke into their flat and got into her daughter’s bed. She woke to her daughter’s screaming. Ms Funk says she was not affected herself by this event but she was very distressed on her daughter’s account.
26. Around this time, Ms Funk was on a reduced dosage of Xanax and Valium after she and Dr Hendry had agreed she was addicted and needed to cut down. In March 2006, Dr Hendry referred her to a psychologist, Mr Marshall O’Brien, who found she had severe anxiety symptoms and noted that she was “determined to wean herself off medications although she appears to be severely distressed by her symptoms at present”. In June 2006, Mr O’Brien reported to Dr Hendry that testing had shown her to be suffering significant anxiety, depression and signs of post traumatic stress disorder. He concluded she had been previously severely traumatised and her symptoms had persisted untreated, placing her at risk and increasing the likelihood of abuse of drugs.
27. In December 2006, Ms Funk started work at DEEWR. By this time, she had stopped taking Xanax and had reduced her daily dosage of Valium. She told her employer when she started work that she had depression but this does not appear to have been considered a problem. She says for the first few weeks she felt “fine” emotionally but came to realise that she had “bitten off more than she could chew”. She wanted to resign but agreed to reduce her hours to four days a week. She remained on a reduced dose of Valium.
28. In the time leading up to the assault on 26 March 2007, Ms Funk had several days off work with physical and psychological problems. She was still having panic attacks. She was struggling to work four days a week and wanted to reduce to three. On 5 March 2007, Dr Hendry noted she had a range of physical and psychological symptoms including that she was having “nightmares about past events”.
Ms Funk’s medical history since 26 March 2007
29. Two days after the assault, Ms Funk saw Dr Hendry. He noted “Had a knife pulled on her recently”. The notes suggest that the assault may not have been Ms Funk’s main reason for seeing Dr Hendry but this is not clear.
30. On 12 April 2007, she again visited Dr Hendry’s practice but he was not there. She saw Dr John Azoury who noted the assault and Ms Funk’s homicidal feelings about her attacker; she felt as though she could not go to work because her caseload involved people with depression; she was not keen on counselling and did not want to increase her antidepressants.
31. On 13 April 2007, Ms Funk saw Dr Hendry. He noted that her depression had flared after the assault and referred her to Ms Maureen Blane-Brown, a clinical psychologist who saw her approximately six times over about two months, including a home visit. Ms Funk says the treatment made no difference to her symptoms. On 18 April 2007, Dr Hendry admitted her to Hyson Green psychiatric hospital where she was under the care of Dr John Saboisky, psychiatrist, for three weeks.
32. Dr Saboisky diagnosed a depressive condition and PTSD and Ms Funk was treated for anxiety disorder and substance use disorder. Dr Saboisky prescribed Tegretol, an anticonvulsant, as a means of medically supervised withdrawal from benzodiazepines, and the antidepressant, Lexapro. He stopped the Valium despite Ms Funk asking him to prescribe it.
33. Ms Funk discharged herself from Hyson Green on 7 May 2007 after a dispute over the telephone with DEEWR about her employment. She says she rang to ask about returning to work and was told she no longer had a job. What was said in this conversation is not entirely clear but nothing really turns on this. However, Ms Funk is evidently still angry that her employer told her she would be given only two more days work and her contract would not be extended.
34. Ms Funk says she felt no better when she was discharged from Hyson Green. In May 2007, she attended an anger management program through Hyson Green as a day patient. She left after the second or third session because there was not enough “me time” which made her feel even angrier.
35. Ms Funk moved back to Sydney in about July 2007. She was still on an anti-convulsant. She describes herself as “a complete basket case” and “losing all reason” by this time. Dr Nguyen prescribed Valium. On 22 August 2007, he admitted her to SJGH in Burwood under the care of Dr Howard Napper, psychiatrist. She spent approximately one month in hospital on this occasion. She was admitted again in May 2008 for approximately six weeks.
36. Ms Funk has been admitted to SJGH at Burwood and Richmond several times since then but reports little change in her symptoms. Over this period, her medications were being changed frequently and included antidepressants, anticonvulsants and antipsychotics. Her most recent admission was around June 2010 and appears to have been for approximately three months. She is still under Dr Napper’s care.
37. Ms Funk started drinking again on the anniversary of mother’s birthday. At first in oral evidence, she thought this was on 11 January 2009 but she agreed that clinical notes indicating it was January 2008 were probably correct. She says she started drinking because she wanted to stop the nightmares and thinking about the assault, and her fear of the telephone and of going outside.
38. In March 2008, Dr Napper referred Ms Funk to a clinical psychologist whom Ms Funk did not like; she asked to stop seeing her. She has been seeing Ms Sonia Lawler, a psychologist, fortnightly since November 2008.
39. Ms Funk stopped drinking in mid-2010 after an admission to SJGH Burwood. She had noticed that alcohol was interfering with her medications.
40. She says her medications are not working now: her nightmares are increasing; she is fearful of going outside; she feels suicidal; she cannot go anywhere without her daughter who also has to supervise her medications to ensure she does not overdose. She now takes Effexor, Largactil, Valium and Xanax, and other (non benzodiazepine) medications.
41. In evidence before the Tribunal, Ms Funk agreed that she has been trying to get off benzodiazepines since 2002 without success. She acknowledged she has had “significant anger management problems” since 2001. She agreed that she had had her current symptoms since before the assault in March 2007 but said they were not to this degree.
The issue
42. It is not in dispute that Ms Funk suffered PTSD as a result of the incident on 26 March 2007. The issue before us is whether the effects of the PTSD arising from the incident ceased by 30 April 2009.
Medical evidence
43. For the most part, the treating doctors and those who saw Ms Funk for medico-legal assessment recorded similar histories before and after the assault on 27 March 2007. There are some inconsistencies in dates and sequence of events, most likely accounted for by Ms Funk’s poor memory, but nothing turns on these.
44. The medical opinions broadly fall into the following groups: those who do not accept that Ms Funk suffered from PTSD as a result of the assault; those who believe she had PTSD but it was short-lived; those who accept she had PTSD but are not sure whether its effects are continuing; and those who believe she continues to suffer from PTSD as a result of the assault. We will consider them in that order.
Dr Alan White
45. Because Comcare accepts that Ms Funk suffered PTSD as a result of the assault, it is not necessary to consider in detail the opinions of those doctors who thought she did not suffer PTSD. In particular, we discount entirely the opinion of Dr Allan White, a psychiatrist who saw Ms Funk in November 2007 for assessment at Comcare’s request. He thought she had never suffered from PTSD and that the assault was “a somewhat implausible event”.
Dr Yvonne Skinner
46. Dr Yvonne Skinner, consultant psychiatrist, saw Ms Funk for assessment in November 2008. She did not think Ms Funk suffered PTSD as a result of the assault. She thought her “significant substance abuse problem” complicated diagnosis of her conditions including because withdrawal causes symptoms indistinguishable from panic attacks. Dr Skinner did not think Ms Funk’s condition changed significantly as a result of the assault; she already had PTSD following the break-in in 2005; the assault did not aggravate her condition; it would have been the same regardless.
47. Dr Napper, in a report dated 9 December 2009, took issue with Dr Skinner’s report. In particular, he thought she had not adequately questioned Ms Funk about her symptoms, all of which he considered were evidence of chronic PTSD.
Dr Robert Lewin
48. Dr Robert Lewin, consultant psychiatrist, saw Ms Funk on 8 March 2010 at the request of Comcare. He has provided two written reports and gave oral evidence.
49. Based on the history she gave him, Dr Lewin thought Ms Funk may have had symptoms of PTSD for a short time after the assault but he thought they would have resolved relatively quickly; there was no categorical worsening of her condition. He acknowledged that the assault would have been distressing but he thought Ms Funk’s response, in terms of claimed PTSD, out of proportion to the incident itself. In his view, PTSD following an incident such as she described would be short-lived and would typically resolve within two to three months, either spontaneously or with treatment.
50. Dr Lewin noted evidence of Ms Funk’s addiction to benzodiazepines and alcohol prior to 2007, as well as anxiety and depressive symptoms at various times. He thought her addiction her most significant clinical problem; the essential clinical features of her case, in his view, are its chronicity and her history of dependence.
51. Dr Lewin drew a distinction between symptoms and diagnosis and said that, in his view, Ms Funk’s ongoing symptoms are due to her addiction and not to the continuing effects of the assault. In his opinion, her symptoms, such as anxiety, are consistent with the “obvious explanation” of her longstanding dependence/addiction. In reaching this conclusion, he took into account that Ms Funk had had treatment for PTSD without success, suggesting to him that other factors – in particular her addiction – explained any continuing symptoms.
52. In a report dated 16 March 2010, Dr Lewin wrote:
The pattern of psychiatric symptoms described by Ms Funk is, in my opinion, largely explained on the basis of addiction. She describes the need for more medication in terms of symptoms of emotional distress. She describes seeking prescription of benzodiazepine sedative when complaining of heightened anxiety. The pattern of symptoms over time is not consistent with the usual clinical patterns in [PTSD]. The response in terms of symptom complaint is disproportionate to the stressor and is inconsistent with the usual clinical course of this condition. Ms Funk describes a steady worsening of symptoms such nightmare, panic symptoms and similar. Her pattern of reported global impairment of function is also inconsistent with the usual pattern of functioning in [PTSD] of a chronic nature. Similarly, there has been no response or any benefit to any of the several modes of treatment offered to [her]. She appears to focus upon disability within the context of drug-seeking behaviour. There is no doubt Ms Funk has suffered from chronic depressive and chronic anxiety condition over a period of time. There is little objective evidence that there has been any significant change in the last five to six years.
Dr Ross Hendry
53. Dr Hendry reported on 13 August 2008 that Ms Funk suffers from underlying and pre-existing alcoholism, anxiety, panic attacks, depression, PTSD, nicotine and benzodiazepine dependence and hypothyroidism; he was unsure of their origin but they had existed for some years prior to March 2007.
54. Dr Hendry wrote that Ms Funk had suffered with significant psychological problems” before March 2007. He thought she underwent “a significant aggravation of her pre-morbid psychological conditions” after the assault but he thought the degree of aggravation and the duration of this effect were “questionable”. He did not discount an aggravation of her condition but he thought her condition as at the date of his report “may well not be significantly too different today than if the incident did not occur”. He thought “if the work-related effects of the condition are still present … they are a minor contributor compared to her pre-morbid situation” but he was unable to predict when they would cease.
Dr Patricia Jungfer
55. Dr Patricia Jungfer, consultant psychiatrist, saw Ms Funk on 24 August 2010 at the request of her solicitors. Dr Jungfer reported on 2 September 2010 that Ms Funk developed PTSD after the assault but noted that her presentation was complicated by her benzodiazepine abuse. She wrote:
… [Ms Funk’s] demeanour and manner of presenting the history was inconsistent with severe or substantive anxiety. The presentation may have been modified by the pharmacotherapy but an alternative explanation was that the symptoms have been substantially modified over time but she maintains her symptom complaints because of the ongoing litigation issues.
It is reasonable to recognise that a substantive number of her anxiety symptoms and mood-related symptoms may all well be related to her benzodiazepine abuse and that the cognitive and emotional symptoms that she reports are explicable on the basis of this.
56. While her initial PTSD was related to the 2007 incident, Dr Jungfer thought:
[her] ongoing difficulties … are complications associated with a polysubstance abuse disorder and are not related to the primary incident. She has a number of mild residual [PTSD] symptoms but there was an element of her presentation that suggested that she was maintaining these symptoms … due to drug seeking behaviour.
57. Dr Jungfer noted Ms Funk’s continuing anxiety and panic attacks, and nightmares, suicidal thinking and rage against her attacker; that she wanted to be at home; she wanted to keep her back against the wall, and she had flashbacks to the attack. She wrote:
… while her initial presentation to psychiatric care and treatment was undoubtedly caused by the attack in 2007, the predominance and continuation of the symptoms is more difficult to attribute them (sic) to the initial attack. It is my belief that her ongoing symptoms are in part fuelled by the constant battles with Comcare … and that the stress of this process in part contributes to her psychiatric illness. It also is recognised however that she has significant psychiatric disability and dysfunction predating the episode due to her drug dependence. Any psychiatric symptoms she would have had from that incident would have led to her using more drugs … and [made her] even less capable of coping with the situation at hand.
…
Since that time her psychiatric presentation has been complicated by her substance abuse and her current impairments and deficits, in my opinion, are being caused by the substances that she is abusing and the substances that are being prescribed. While she reported difficulties with nightmares and ongoing anxiety and phobic avoidance behaviour, how much of it is being caused by the substance she uses is difficult to clarify. Her mental state [on examination] was not consistent with a person suffering from significant [PTSD] and the manner and demeanour in which she related the history was also not consistent with that.
Dr Howard Napper
58. Dr Napper continues to see Ms Funk at approximately three to four week intervals. In reports dated 29 August 2008 and 9 December 2009, Dr Napper wrote that she had “multiple, co-morbid psychiatric disorders including alcohol abuse, benzodiazepine dependence and borderline personality disorder”, panic disorder and major depression prior to the assault. She had been on psychotropic medications since 2001, triggered by the death of her mother, and there was evidence (in Dr Hendry’s notes) that she was psychologically unwell while at DEWR before the assault.
59. However, in Dr Napper’s view, as a result of the incident on 27 March 2007, Ms Funk suffered “a new psychiatric condition, namely PTSD”. Her pre-existing psychiatric condition was the “entirely separate” condition of panic disorder, a recurring condition which pre-disposed her to developing PTSD following a traumatic incident.
60. On 29 August 2008, Dr Napper wrote that Ms Funk’s employment-related PTSD was chronic and the effects had not ceased; her other disorders of alcohol abuse and benzodiazepine dependence were accentuated by her PTSD and also contributed to her incapacity to work.
61. Dr Napper refers in some detail to Ms Funk’s history of benzodiazepine use but he makes almost no reference to what others identify as her addiction. On 9 December 2009, he wrote that her use of benzodiazepines was “strictly controlled” and she did not abuse them “in terms of increasing the amounts she uses” but he also noted that she should be gradually weaned off them in conjunction with a comprehensive treatment program, and she had an express wish to participate in a rehabilitation program.
62. Ms Funk’s oral evidence was somewhat at odds with Dr Napper’s report. She told us that she occasionally uses more than the prescribed amount of medication and she also said she does not want to stop using them and cannot imagine life without them. There is no evidence that she has undergone a treatment program since December 2009, suggesting that she might downplay her addiction with Dr Napper.
63. From his reports, it appears that a significant factor in Dr Napper’s assessment of Ms Funk’s condition was that he did not think she had PTSD prior to the assault in March 2007. His is the only report that reached this specific conclusion. It is at odds with Dr Hendry, who had treated her since 2003 and who reported on 13 August 2008 that her pre-existing conditions included PTSD. It is also at odds with the results of tests by Mr O’Brien in June 2006 and reports from Ms Blane-Brown, psychologist.
64. The further difficulty with Dr Napper’s reports, particularly when compared with the evidence of Dr Lewin and Dr Jungfer, is that, by not dealing with the question of Ms Funk’s addiction in any detail and focussing on her PTSD, they do not assist us to assess the relative impact of her long-standing addiction and psychological and psychiatric problems.
Dr Bruce Westmore
65. Dr Westmore, a forensic psychiatrist, saw Ms Funk on 3 August 2010 for medico-legal examination at request of her solicitors. On 16 October 2010, he reported that her case is “complex”. He thought it likely that any person who experienced that kind of assault would develop an adverse psychological and psychiatric reaction including, possibly, PTSD. He thought, in Ms Funk’s case, that the assault was like “the straw that broke the camel’s back”, that it aggravated her pre-existing psychiatric illness but itself precipitated its own unique disorder, most likely PTSD. He noted that she acknowledged the symptoms had decreased over time but she was still having nightmares and continuing symptoms, which he thought more likely in someone with pre-existing conditions.
Other medical reports
66. A number of reports from other doctors and psychologists are before the Tribunal.
67. A report dated 21 August 2008 from Dr John Saboisky, who treated Ms Funk in Hyson Green shortly after the assault, is relevant insofar as it documents her “chronic addiction to benzodiazepines”. He also reported that there was a “huge overlap” between her various anxiety disorders but that her reported symptoms following the incident supported the diagnosis of PTSD. Ms Funk stopped seeing him in June 2007. There is some dispute about why she stopped seeing him but it is of no consequence here.
68. There are also reports, or references to reports or clinical notes from, Dr Julian Parmigiani, psychiatrist, who saw Ms Funk in 2001; the Queanbeyan Mental Health Team; Dr John Westerink, psychiatrist at SJGH; and from Ms Blane-Brown, Ms O’Brien and Ms Drobny, psychologists. The reports document Ms Funk’s addiction to benzodiazepines and express various opinions about the nature of her psychiatric condition before and after the assault but, other than providing background, they shed little light on the specific question we have to determine and it is not necessary to detail them here.
Consideration
69. It is not in dispute that Ms Funk suffered from PSTD as a result of the assault in March 2007. In our view, the weight of the evidence supports the conclusion that the effects of the PTSD had ceased by 30 April 2009.
70. The medical reports are consistent in documenting Ms Funk’s pre-existing psychiatric and psychological conditions. The only difference in them of any note is that Dr Napper specifically excludes PTSD as a pre-existing condition. Of itself, that difference has no bearing on the question we have to determine. There is clear evidence of long standing psychiatric and psychological symptoms including anxiety, depression and nightmares, both before and after the 2007 assault.
71. There is also evidence of Ms Funk’s long-standing and continuing benzodiazepine dependence before and after the 2007 assault (and, to a lesser extent, alcohol dependence, although that seems not to manifest itself at present). There is evidence of her repeated attempts to stop using benzodiazepines, well before 2007, and since.
72. Comcare submits that Ms Funk is motivated by her addiction to exaggerate the extent of her current PTSD symptoms. It is suggested that she has fallen out with each of the doctors who refuse to prescribe what she wants, and that she continues to see the doctors who are prepared to prescribe what she wants. There is some evidence (for example, concerning why she stopped seeing Dr Saboisky) that lends weight to these submissions but we do not need to determine whether they are correct. Whatever the truth, there can be no argument that Ms Funk has a chronic addiction, and there is no evidence that it is lessening.
73. A consistent theme in the medical reports is the difficulty of separating the symptoms of Ms Funk’s PTSD following the assault from the effects of her benzodiazepine addiction. For example, Dr Skinner, Dr Lewin, Dr Jungfer and Dr Westmore all identify this difficulty.
74. The only doctor who clearly supports a finding that Ms Funk continued to suffer the effects of PTSD after 30 April 2009 is Dr Napper. He sees her symptoms as almost solely attributable to her PTSD. As we have already noted, the difficulty with his report is that he gives little attention to the role of Ms Funk’s benzodiazepine dependence in her symptoms. Dr Westmore thought Ms Funk was still experiencing symptoms of PTSD in 2010, although she reported they were lessening.
75. For Ms Funk it was submitted that Dr Jungfer’s report supports a finding in her favour. We do not agree. Although, in September 2010, she thought Ms Funk had a number of “mild residual PTSD symptoms” (italics added), she also thought there was an element of maintaining these symptoms due to her “drug-seeking behaviour”. She also thought that Ms Funk’s anxiety symptoms, as well as her cognitive and emotional symptoms may all be related to her benzodiazepine abuse. Dr Jungfer’s careful and detailed opinion does not support Ms Funk’s case.
76. Although Dr Hendry does not appear to have been asked specifically if or when her PTSD ceased, his report of 13 August 2008 suggests its effects had ceased by that date.
77. In our view, greatest weight should be placed on Dr Lewin’s opinion. He accepts Ms Funk suffered PTSD following the assault but has given cogent reasons why the effects would have been temporary only. Without discounting Ms Funk’s subjective experience, he thought the stressor itself was relatively minor, and the effects would have abated within a short time, and well and truly by 30 April 2009. No other medical opinion specifically addresses this question.
78. Importantly, Dr Lewin drew a distinction between symptoms and diagnosis. The distinction is highly relevant in Ms Funk’s case because the symptoms she describes prior to the assault, including anxiety, depression and nightmares, and those following it are very similar. Merely because Ms Funk remains addicted to benzodiazepines does to exclude the possibility that she continues to experience PTSD from the assault. But it indicates the strength of her dependence and, as Dr Lewin says, is the obvious explanation for her continuing symptoms.
Conclusion
79. We are satisfied that the effects of the PTSD that Ms Funk suffered as a result of the assault on 27 May 2007 had ceased by 30 April 2009. We affirm the decision under review.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr John Campbell, Member
Signed: ....................[sgd]............................................................
Diana Weston, AssociateDate/s of Hearing 7, 8 and 9 February 2011
Date of Decision 18 April 2011
Counsel for the Applicant Mr C Ryan
Solicitor for the Applicant Mr M Emanuel, Max Emanuel Solicitor
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Ms E O'Connor, Sparke Helmore
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