Grantham and Australian Capital Territory (Compensation)
[2023] AATA 4152
•18 December 2023
Grantham and Australian Capital Territory (Compensation) [2023] AATA 4152 (18 December 2023)
Division:GENERAL DIVISION
File Number: 2022/2811
Re:Marilou Grantham
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:18 December 2023
Place:Sydney
The reviewable decision dated 5 April 2022 is set aside and substituted with a decision that, as of 28 February 2022, the Respondent is liable to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for aggravation of Major Depressive Disorder, single episode and aggravation of Depressive Type Psychosis.
The parties are directed to file written submissions on the question of costs within 28 days of this decision.
...............[SGD].........................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act 1983 (Cth) – no present liability – whether Applicant continues to suffer the effect of injuries – whether injuries result in need for medical treatment or incapacity – whether Respondent correct to accept liability to pay compensation – where determination of Comcare disturbed status quo – where Comcare required to persuade Tribunal to disturb status quo – where Tribunal not comfortably satisfied – decision under review set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Abrahams v Comcare [2006] FCA 1829
Dean v Australian Postal Corporation [2010] FCA 680
Gregory and Comcare [2018] AATA 2075
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235Wiegand v Comcare [2002] FCA 1464
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
18 December 2023
INTRODUCTION
Ms Marilou Grantham (the Applicant) was employed by ACT Health from 1989. On 14 November 2010 she reported an incident at work. Upon investigation, Comcare found that an incident had occurred on 13 November 2010 involving the Applicant and her co-worker (MQTQ), and that the Applicant suffered a psychiatric injury.[1]
[1] T23, 274, 276.
The delegate found that the injury constituted an aggravation of an underlying pre-existing condition, namely Post Traumatic Stress Disorder (PTSD) and Depression, and that the aggravation was contributed to a significant degree by her employment with ACT Health. The delegate applied the principle in Wiegand v Comcare [2002] FCA 1464 (Wiegand), that where an incident is found to have occurred and created an impression in the mind of the employee (whether reasonable or not 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.
On 23 October 2012, Comcare accepted liability to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (SRC Act) for:
·Aggravation of Major Depressive Disorder, Single Episode and
·Aggravation of Depressive Type Psychosis.
The Applicant received income support and medical treatment expenses from 2012 paid for by the insurer. In late 2021, a new expert assessment was conducted by Dr Prabal Kar, consultant psychiatrist. Dr Kar opined that the Applicant suffered from schizophrenia, and had never suffered a mental injury caused by the 2010 to 2011 events.[2]
[2] Applicant’s materials, 1.
On 28 February 2022, a delegate of Comcare determined that it has no present liability to pay compensation for medical expenses or incapacity payments under sections 16 and 19 of the SRC Act for an aggravation of major depressive disorder, single episode and aggravation of depressive type psychosis.[3]
[3] T104, 653.
On 5 April 2022, the Respondent affirmed the decision made by the delegate (the reviewable decision).[4]
[4] T1.1, 6.
On 7 April 2022, the Applicant filed an application for review of the decision of 5 April 2022.[5]
[5] T1, 1.
The application was heard on 14, 15, 16 and 17 August 2023. The Tribunal reconvened to hear final oral submissions on 6 October 2023. The Applicant was represented by Mr A. Schofield, of counsel, instructed by Mr T. Maling, of Elringtons Lawyers. The Respondent was represented by Mr M. Gollan of counsel, instructed by Mr R. Moss, of HWL Ebsworth Lawyers.
The Tribunal was exposed to thousands of pages of medical records. The parties filed a substantial body of material, written submissions, and a Statement of Facts, Issues and Contentions (SFICs).
The Applicant gave evidence in support of her claim. Her daughter Kimberley gave oral evidence. They were both cross-examined by Mr Gollan.
The Respondent offered to call MQTQ, but Mr Schofield did not require her for cross-examination. Her outline of evidence was admitted without contest.
The Tribunal also heard from a psychiatrist commissioned by the Applicant, Dr Rajiv Siotia and Dr Kar, commissioned by the Respondent. Each had provided written reports. They were cross-examined at length by counsel.
After the hearing of evidence, counsel requested the opportunity to provide written submissions, which was granted.
BACKGROUND
The following background is extracted from the materials filed by the parties, the SFICs, and the oral evidence presented to the Tribunal. The case is well documented in the medical records.
The Applicant was born in Manilla in 1959.[6] She had a happy childhood and completed high school. Her first language is Tagalog, the main language of the Philippines. She had her first child (Jane) at a young age (16 or 17). Unfortunately, she suffered a tragedy when her husband was killed in an accident.[7] A few years later she met an Australian visiting the Philippines. They married and settled in Australia. Her second child, Kimberley, was born in 1985.[8] The Applicant’s second husband was reportedly abusive, and their relationship short-lived. They separated, and she set about improving her qualifications, studying hospitality at TAFE.[9] She was on the pension for a year, and had some short-term employment. In 1989, she secured work in Food Services at a Canberra hospital. She sponsored her first child Jane to join her in Australia and has a very close and supportive relationship with both daughters.
[6] ASFIC, 3.1.
[7] Medical Report: T65, 448.
[8] Transcript, 16 August 2023, 237.
[9] T61, 416.
THE INCIDENT
On 13 November 2010, there was an incident with a colleague, MQTQ, who also came from the Philippines and spoke Tagalog.[10] The next day the Applicant made a formal complaint. She said that MQTQ had called her ‘ugly’ and that she felt ‘embarrassed and bullied’.[11] MQTQ also made a complaint. She said that the Applicant was rude to her. She said that she used a phrase in Tagalog which referred to behaviour rather than appearance:
I did not call Ms Grantham “ugly”. I said “Pang It Ang Ugalimo” which translates to “very bad ugly attitude and manners”. I was not talking about how she looked. I was talking about how she was treating me.[12]
[10] T3.4 and T3.41.
[11] ASFIC 3.3.
[12] Outline of evidence: RSFIC 3.4.
On 20 January 2011, the Applicant wrote to her employer.[13] She believed that her colleagues were gossiping about relevant events and that there had been ‘leaks’ of confidential information. She was ‘greatly affected’, and her health had been ‘suffering’.
[13] ASFIC, 3.4
On 22 February 2011, a joint mediation session was scheduled with the Applicant and MQTQ, however, the Applicant ‘left it in tears’.[14] The mediator suggested to the Applicant that prior to organising another joint session, she should have further counselling to deal with her uncovered emotions.[15]
[14] ASFIC, 3.5.
[15] T3.22, 65.
On 2 March 2011, the Applicant wrote to Mr Terry Keel, Employee Relations Unit, ACT Health. The letter was co-signed by Kimberley. The Applicant said that she went to the IPS Conflict Resolution session but left feeling upset and stressed and went home crying. She said that if ‘the Food and Beverage Management dealt with the investigation with more care, a prompt response and practise the duty of care to a bullying incident I wouldn't be feeling this way’.[16] She noted that after Kimberley spoke with Mr Keel, ‘we came to a resolution that the Management Team will conduct a Food Service Staff Meeting to address the use of non-English language in the workplace’.[17]
[16] T3.20, 63.
[17] See ASFIC, 3.6; RSFIC 3.1.
The Applicant had several consultations with her general practitioner, Dr Wayne Pahn. On 15 March 2011, Dr Pahn diagnosed generalised anxiety disorder. He noted that she was having problems at work and that her father died four weeks earlier.[18] On 10 May 2011, Dr Pahn noted that she was ‘depressed about work’ and that she had been having problems with ‘bullying’ at work.[19] On 23 May 2011, Dr Pahn noted that the Applicant’s depression was worse in the last four days, and that she was having ‘paranoid delusions’. His notes refer to bullying at work.[20] He prescribed antidepressant medication (venlafaxine) and referred her to a psychologist under a Mental Health Plan.[21]
[18] ASFIC, 3.7.
[19] ASFIC, 3.8.
[20] ASFIC, 3.10; RSFIC 3.21.
[21] ASFIC 3.10; RSFIC 3.1.
On 26 May 2011, Mr Keel wrote that a bullying presentation had not yet been delivered to Food Services staff and that Kimberley had ‘raised this as an issue again…expressing concern that the circumstances are negatively impacting on her mother’s health.’[22]
[22] ASFIC 3.11; RSFIC 3.1.
First admission to Calvary Hospital: 2 – 17 June 2011
On 2 June 2011, Ms Virginia Chambers (psychologist) referred her for admission to the Calvary Hospital Emergency Department. Ms Chambers reported depression, anxiety and stress at ‘severe levels’.[23] She had been ‘suffering [PTSD] for the many years since she left a physically abusive husband’ and that recent violence and bullying have triggered her ‘current paranoia and instances of disassociation’. Her level of stress was beyond what Ms Chambers could influence.[24]
[23] T4.
[24] RSFIC 3.22.
She was admitted to hospital on 2 June 2011. She was initially reviewed by an on-call registrar, Dr Niloofar Salesian, who recorded that her ‘thought content was delusional [with] themes of persecutory nature, and shame’.[25]
[25] ST63, 7-8.
On 3 June 2011, she was assessed by Dr P. Fitzgerald, a consultant psychiatrist, who diagnosed her with major depression with psychotic features.[26] He drafted a progress note stating that the Applicant had been put in a single room as she was highly distressed and having persecutory and paranoid ideas about her roommate talking on the telephone.[27]
[26] ASFIC 3.12.
[27] ST63,11; RSFIC 3.23.
On 7 June 2011, a psychiatric registrar reviewed her condition and noted:
[The Applicant] was able to describe what she has been doing today but eventually topic veered to issues of workplace and bullying she has experienced there. She is less fixed on this and accepts that she may have lost the sense of what was actually occurring and what was her mind.[28]
[28] Dr Porta Cubas: ST63, 19; RSFIC, 3.24.
She was discharged on 17 June 2011, with a diagnosis of Major Depressive Episode with mood congruent features.[29] The discharge summary states that the Applicant was admitted following a deterioration in her mental health precipitated by the death of her father in February 2011 and workplace harassment. That note further recorded that the Applicant was experiencing auditory hallucinations and paranoid delusions. She had a one-week history of deterioration of pre-existing depressed mood and the onset of odd behaviour. She was too fearful to go to sleep. She believed people in Japan and Taiwan talked about her and were talking about her in the news and on the internet. She felt that people were talking behind her back and staring at her at the shopping centre, which prevented her from going out. She had been ‘listening through walls’.[30]
[29] ST63, 39.
[30] ST62, 4.
On 17 June 2011, Mr Keel wrote that Kimberley contacted him the previous day ‘in a very upset state, concerned that still nothing has been done about organising the promised staff information session, despite this being promised months ago’. Kimberley noted that the Applicant had been in hospital for the last three weeks due to work stress, and that she wanted the promised action to take place ‘so that her mother will feel supported in the workplace’.[31]
[31] ASFIC 3.14; RSFIC 3.7.
These concerns were taken seriously. The materials contain emails dated March through to May relating to new protocols regarding the use of foreign languages in the workplace. Training was being arranged to that effect as a priority.[32]
[32] See emails from T3.25, 69 to T3.28, 78.
On 5 July 2011, Kimberley told Mr Keel that:
(a)her mother was ‘still feeling fragile about the bullying she experienced’;
(b)‘no one from ACT Health has bothered to keep in touch with her mother, to see how she was going and enquire about when she might be returning to work’; and
(c)her mother felt ‘unsupported by the organisation’.[33]
[33] ASFIC 3.15; RSFIC 3.8.
Pausing here, I note in passing that the Respondent disputes the veracity of Kimberley’s comments above. The Respondent contends Kimberley’s comments belie the cause of the Applicant’s psychological distress as contemporaneously documented by the treaters at Calvary Hospital.
On 13 July 2011, Kimberley wrote to Mr Keel to express ongoing ‘disappointment in regard to lack of communication’ about the Applicant’s return to work plan.[34]
[34] ASFIC 3.16; RSFIC 3.1.
Second admission to Calvary: 14 - 27 July 2011
On 14 July 2011, the Applicant was admitted to hospital again, ‘after an exacerbation of depressive symptoms including loss of appetite and decrease in sleep, lack of energy and very low mood’.[35] Among other symptoms, she was hearing voices saying ‘ugly’. She continued to ‘ruminate on [the] workplace incident’.[36] The Applicant’s treaters also commented on her background, including her abusive ex-husband.
[35] ST64, 40; RSFIC 3.25; ST64, 67.
[36] ASFIC 3.17; RSFIC 3.1.
Dr David Smith, psychiatrist, diagnosed her with major depression with psychotic symptoms, which was in partial remission.[37] A file note says that the admitting staff tried to send her home, but her family insisted on admission. An on-call psychiatrist recommended admission on a short basis.[38]
[37] ASFIC 3.18.
[38] ST64, 44.
In any event, the Applicant was hospitalised until 27 July, although she does appear to have had some day leave. The discharge summary notes:[39]
Marilou was admitted to the ward after an exacerbation of depressive symptoms including hearing voices, loss of appetite and decrease in sleep, lack of energy and very low mood.
While an inpatient Marilou has been involved in ward programs and has been motivated towards recovery. Marilou continues to have the support of her daughters and will have follow up input from BHMS. On talking to Marilou today she states that she is ready for discharge today.
[39] ST64, 67.
On 29 August 2011, Ms Chambers noted that the Applicant was ‘still very nervous’, ‘anxious’ and fearful of meeting her ‘tormentor’.[40]
[40] ASFIC 3.19; the Respondent adds that the identity of the 'tormentor' recorded by Ms Chambers is unclear: T8, 232.
On about 3 September 2011, Dr A. Manoharan, psychiatrist, considered that her mental state was ‘stable […] but still fragile’, and he recommended ongoing treatment with venlafaxine.[41]
[41] ASFIC 3.20; RSFIC 3.1; T9.
On 9 November 2011, Dr Manoharan reported to Dr Pahn that the Applicant ‘continues to report hearing two voices inside her head that keep repeating the same words over and over’. Dr Manoharan thought that they were ‘more like pseudo hallucinations or obsessions and unlike true auditory hallucinations’.[42]
[42] T9, 234; RSFIC, 3.26.
On 22 November 2011, Ms Chambers reported to Dr Pahn following six sessions of psychological therapy.[43] She noted that she had undertaken a ‘focused exposure (for [PTSD] therapy), on the events in the workplace’. She noted that there ‘may have been a very cruel and coordinated bullying of [the Applicant], over an extended period of time’.[44]
[43] ST66.
[44] RSFIC, 3.27.
Dr Kai-Kai Toh (psychiatrist) reported to Dr Pahn on 28 March 2012 that the Applicant reported a ‘two-year history at ACT Health of verbal harassment by another colleague of similar ethnic background with whom she also had a personal connection’.[45] Dr Toh wrote that the Applicant was ‘pre-morbidly … a psychologically resilient woman with no clear history of depression, psychosis or anxiety’. He continued that the Applicant was ‘preoccupied’ on her symptoms and tended to focus on ‘abuse as if it was a lifelong phenomenon’.[46]
[45] T11.
[46] RSFIC, 3.28.
In a report dated 14 May 2012 Dr Zoltan Zsadanyi, psychiatrist, diagnosed the Applicant with major depressive disorder.[47]
[47] ASFIC 3.21; RSFIC 3.1.
On 30 May 2012, Dr Toh stated that her major depressive illness with psychotic features was in relative remission but not full remission.[48]
[48] T12, 237.
On 27 June 2012, the Applicant completed an ACT Government Accident/Incident report form. She stated that an incident occurred on 13 November 2010 in the food service kitchen when she was cleaning up after the morning tea. She became ‘mentally [and] physically unfit for work’ due to verbal abuse by another employee.[49]
[49] T13, 239.
On 13 August 2012, Ms Chambers reported that ‘the basis of [the Applicant's] [PTSD] is the attack on her in 1998 in Building 3 at Canberra Hospital’. The Applicant reported that she saw a psychologist on two occasions following that attack. Ms Chambers concluded that the Applicant was ‘cruelly taunted and bullied in the workplace of Canberra Hospital by a coordinated group, for about a year.’[50]
[50] RSFIC, 3.30.
In a report dated 23 August 2012, Dr Toh confirmed his diagnosis of major depression with psychotic features, in partial remission.[51] He stated that her condition was ‘entirely related to the workplace bullying incidents and the way in which the matter was handled by her management staff after it.’ The report states that the Applicant had been subject to repeated verbal bullying in Tagalog ‘two or three years ago’, and the alleged perpetrator was godmother to the children of the Applicant’s ex-husband. Dr Toh considered that to be a ‘not insignificant’ factor behind the verbal abuse. He was not aware of any previous psychiatric history of significance and did not consider that the current episode of depression was an aggravation of a pre-existing or underlying condition.[52]
[51] T19, 254.
[52] ASFIC 3.23; RSFIC 3.13.
On 1 September 2012, Dr Pahn reported to Comcare that the Applicant presented with a history of anxiety and depression secondary to stressors at work and the recent death of her father in February 2012.[53] The workplace stress was reportedly due to bullying which commenced sometime in 2010. Her co-worker was said to be calling her names. She stated that her family had depression and she suffered verbal and physical abuse from her previous husband. She had two supportive daughters. Her symptoms included depressed mood, tearfulness, thoughts of bullying at work, hearing voices, loss of appetite, decreased sleep and lethargy.
[53] T16, 243. RSFIC 3.31.
Dr Pahn stated that he believed that she had severe major depression and PTSD. He observed that the symptoms and signs in addition to the psychotic features are consistent with severe major depression. The signs and symptoms of PTSD included her preoccupation with long-standing abuse, initially from her previous husband followed by the problems at work.
Dr Pahn concluded:
I believe that Ms Grantham has Post Traumatic Stress Disorder secondary to long standing abuse from her previous husband. Also, she has major depression. These problems have been exacerbated by bullying at work. There is a family history of depression. Ms Grantham stated that she previously enjoyed her job as a diet maid and was coping well. Therefore, I believe that her deterioration in May 2012 was secondary to the bullying at work.[54]
[54] T16, 244.
As noted above, on 23 October 2012, Comcare accepted liability to pay compensation under section 14 of the SRC Act for ‘Aggravation of Major Depressive Disorder, Single Episode’ and ‘Aggravation of Depressive Type Psychosis’ with a deemed injury date of 10 May 2011.[55]
[55] T23, 274.
The delegate stated that the claimed condition was described using the International Classification of Diseases and Injuries. This meant that the wording of the accepted condition could differ from the wording provided on the claim form. It was Comcare's policy to link the claimed condition with an internationally accepted medical standard for classifying injuries.[56] Comcare found that the Applicant’s injury was significantly contributed to by the events relating to the perceived bullying and the delayed attempted resolution process.
[56] T23, 274.
I digress to note that the parties dispute the correctness of Comcare’s decision; the Applicant on the basis that the injury was not an aggravation of a pre-existing illness, but a new illness,[57] the Respondent on the basis that she did not suffer from major depression but from schizophrenia which was not work-related.[58]
[57] ASFIC 3.24.
[58] RSFIC 3.14.
Reports following initial Determination
In a report dated 11 March 2014, Dr Jennifer Majoor, psychiatrist, diagnosed the Applicant with ongoing major depressive episode with psychotic features, in partial remission. She considered that the episode was ‘triggered by her workplace experiences’ and that it was ‘difficult to predict the ongoing course and when there might be a full remission, given the chronicity of [the Applicant’s] condition.’[59]
[59] ASFIC, 3.25; RSFIC 3.1.
On 27 June 2014, Dr Brenda Masters, general practitioner, referred the Applicant to Hyson Green, a private psychiatric facility, for assessment. In her referral she wrote that there had recently been a ‘significant exacerbation of [the Applicant’s] established psychotic depressive disorder.’[60] Dr Masters noted the Applicant was starting to experience compelling auditory hallucinations to commit suicide. The Applicant identified her colleagues talking about her in a derogatory manner as a stressor, though Dr Masters also noted that she had just learned of Dr Toh’s impending departure from the ACT.
[60] ASFIC, 3.26; RSFIC 3.15.
The Applicant was an in-patient at Hyson Green between 22 July 2014 and 7 August 2014 for treatment of her psychotic depression.[61]
[61] ASFIC 3.27; refer RSFIC 3.15.
In a report dated 28 April 2015, Dr John Saboisky, psychiatrist, wrote that he agreed that the diagnosis was one of major depressive disorder with psychotic features as well as ‘significant phobic anxiety about being placed in a situation which reminds her of her original interpersonal trauma.’[62]
[62] ASFIC 3.28; refer RSFIC 3.16.
After a period off work the Applicant commenced a back-to-work program. In June 2015, she commenced a trial shift at the Calvary Haydon Retirement Community cafeteria for two hours per day, two days per week.[63]
[63] T61, 412.
On 22 October 2015, Dr Saboisky wrote that the Applicant ‘encountered the woman she holds responsible for her psychological symptoms at the Belconnen Mall, and this has set her back’, provoking a ‘severe anxiety reaction’.[64]
[64] ASFIC 3.29; RSFIC 3.1.
On 11 February 2016, Dr Saboisky wrote that the Applicant was not ‘robust enough to cope with the occupational demands of her work-trial placement at the Calvary Hospital’. Dr Saboisky further noted that the Applicant’s auditory hallucinations had been exacerbated by ‘perceived pressure in the workplace’.[65]
[65] ASFIC 3.30. RSFIC, 3.17.
On 1 July 2016, Dr Masters wrote that the Applicant was ‘guarded’ because her symptoms had been significant for such a long time.[66]
[66] ASFIC 3.31; RSFIC 3.18.
In 2016, she trialled working at Calvary Haydon Retirement Village and then began working in Sterilisation Services.[67] In October 2016, she received very favourable reviews from her supervisor.[68] By February 2017 she was working part time three days a week. However, she reported ongoing anxiety and depressive symptoms, exacerbated if going to or within the vicinity of The Canberra Hospital.[69]
[67] T88, 521; T88.1, 533.
[68] T47, 375.
[69] T51, 384.
Her rehabilitation continued during 2017-2018, although not without some minor hiccups.[70]
[70] T60, 406-7.
On 27 February 2018, Comcare wrote to Dr Ash Takyar, consultant psychiatrist, asking him to provide an independent medical examination (IME).[71] The briefing letter stated:
In September 2016, Ms Grantham commenced a work trial at Sterilisation Services at Mitchell as a sterilisation assistant.
In June 2017, Ms Grantham was able to increase her work trial hours at Sterilisation Services to 8 hours per day, 3 days per week on Mondays, Tuesdays, and Wednesdays.
In January 2018, Injury Management engaged the assistance of a new rehabilitation provider, Rehabilitation Services, to assist with Ms Grantham’s rehabilitation programs.
To date, Ms Grantham continues to participate in a work trial at Sterilisation Services where she is considered a valuable member. In addition to the work trial, Ms Grantham continues to participate in volunteer work at Gungahlin Community Centre every Friday for 4 hours.
[71] T61.1, 428.
On 8 March 2018, Dr Takyar saw the Applicant and her daughter Jane. On 16 March 2018, he provided a report. He said that while it was ‘quite difficult’ to obtain a clear history from the Applicant, her daughter’s collateral history was helpful.[72] He opined that the Applicant continued to suffer from major depressive disorder with psychotic features as well as generalised anxiety disorder, which was caused by bullying and harassment at work and a perceived lack of support from managers.[73] He considered that her symptoms were entrenched and severe, and that she would continue to have long-term symptoms.
[72] T61, 418.
[73] T61, 410; ASFIC 3.32; RSFIC 3.1.
On 9 March 2018, there was a conference with Rehabilitation Services involving the Applicant, her treating physician Dr Masters, and her daughter Jane. The Applicant was in a ‘heightened anxious state’, apparently very shaken by the IME. Dr Masters said she was in the worst state she had seen for 12 months.[74]
[74] T62, 441.
Dr Masters referred the Applicant to a psychologist Vickie Walmsley, and she had several sessions with the Applicant in 2018.[75]
[75] ST36, 153; T63, 443.
The Applicant was off work from November 2018 and certified unfit for work from 22 January 2019 to 1 April 2019.[76] When she returned to work it was on the strict conditions that she work in a defined team environment with no multi-tasking; and that she should not work in The Canberra Hospital or Deakin precinct.[77]
[76] T68, 453.
[77] T68, 451-452.
On 30 January 2019 Comcare asked Dr Masters to report on Mrs Grantham’s medical condition and respond to the following questions:
1. From what specific conditions does Ms Grantham currently suffer? Please provide a short description of the conditions including their known aetiology and progression.
2. You have been providing medical certificates to Comcare since at least 2014, the latest being in January 2019. During these years, from your assessment of Ms Grantham do you believe the symptoms she suffers as a result of her accepted compensable conditions have improved, worsened or remained the same?
3. Do you believe Ms Grantham’s current accepted conditions have resolved or evolved into other conditions? If this is the case, was this due to the natural progression of Ms Grantham’s conditions or was it due to an underlying or new mechanism of injury?[78]
[78] T64, 444.
Referral to Dr Deepa Malik
Due to ongoing delays and difficulties in receiving psychiatric care in Canberra, Dr Masters referred the Applicant to see Dr Deepa Malik, a Sydney-based psychiatrist. Kimberley lived in Sydney and was therefore able to attend these sessions. This was noted by Rehabilitation Services.[79]
[79] T68, 453.
On 5 February 2019, Dr Malik reported that he had seen the Applicant and Kimberley that day. In a subsequent report and in correspondence with the Respondent, he stated that she suffered from chronic major depression with anxious distress, which appears to have been precipitated by her experience of workplace bullying.[80] In his report dated 5 February 2019, he wrote that there was ‘no significant past psychiatric history’ but noted that the Applicant attended therapy after being assaulted by a psychiatric patient.[81] He prescribed a change in medication.
[80] T65, 447.
[81] ASFIC 3.33; RSFIC 3.34.
On 21 February 2019, Dr Masters responded to Comcare’s request for information.[82]
I write in response to your request for information regarding Ms Grantham.
1. Please refer to my report of 1 July 2016 for a comprehensive account of diagnosis and aetiology. This has not changed. Progress since that time has been pleasing with well-supported appropriate employment having been found in the Hospital Instrument Sterilisation Unit based in Mitchell. Ms Grantham has been a diligent, reliable and valued member of the team working full hours on 3 days per week. She also participates in community work one day per week. Levels of anxiety have varied over the last 3 years, with a key source of distress being workplace interactions when co-workers have questioned her or assumed a greater knowledge than Ms Grantham felt that she had. She is also hypervigilant when out in the community, but has managed to drive herself in the region of Deakin which was previously not possible. She remains unable to walk in that suburb and has not contemplated venturing near The Canberra Hospital in Woden which was the primary site of her initial injuries. In an effort to get some further improvement we have sought input from a new psychiatrist and she has transferred her psychological care to a new practitioner who is working well with her. Medications were changed in early February by her new psychiatrist resulting in exceptional drowsiness (which we expect will pass) but leaving her currently unfit for work.
2. I have noted a pleasing improvement in Ms Grantham’s symptoms since I first met her in June 2014. This has largely been attributable to supportive counselling and positive experiences in her new work environment.
3. I do not believe that her condition has resolved or evolved into other conditions, though her new psychiatrist may well have given it a slightly different label.
4. Ongoing treatment needs to consist of the same careful approch [sic] to supportive counselling, supportive workplace, community involvement, exercise and judicious use of medication. In recent weeks her antidepressant Pristiq has been changed to Cymbalta. She has also been prescribed Inderal for use when agitated, and she remains on Seroquel at night. I understand that her new psychiatrist has also recommended massage therapy to unwind her anxiety-induced muscle tightness.
[82] ST92, 102.
Dr Malik provided monthly updates from February 2019 up until 2022.
On 28 February 2019, Dr Malik reported that her ‘depressive and anxiety symptoms appear to be in partial remission’.[83] On 28 March 2019, he reported ‘further improvement with mood with residual anxiety’.[84] On 27 April 2019, he reported an ‘exacerbation of anxiety symptoms in the context of perceived pressure to increase hours of work. She has suffered excessive fatigue from her current return to work plan’.[85]
[83] T67, 450; ST93, 103.
[84] T69, 456; ST94, 104.
[85] T71, 450; ST95, 105.
On 16 May 2019, Dr Masters wrote to Dr Malik saying that the Applicant had been steadily improving over past months and was back to working three days a week at The Canberra Hospital. A proposal to increase her hours had caused the Applicant some anxiety. Dr Masters queried whether it would ever be realistically possible to increase her hours.
On 6 June 2019, Dr Malik saw the Applicant, noting that she continued to have memories of past experiences in the workplace and occasionally heard voices of her female colleague. There was ongoing anxiety and depressive symptoms. Dr Malik opined that she would be unable to cope with an additional day of work and that an attempt to do so may trigger a relapse.[86]
[86] T72, 461; ST97, 108.
On 23 July 2019, Dr Malik reported that he had seen the Applicant and Kimberley. He noted ‘ongoing anxiety and depressive symptoms which appear to have worsened on lowering the dose of Cymbalta. Side-effects have improved on the lower dose.’[87]
[87] T74, 464; ST98, 109.
On 22 August 2019, Dr Malik reported that the Applicant had been to Queensland on a four-day holiday and had enjoyed her time there. She went back to work and became upset when she was unable to manoeuvre a trolley and reported this to management and health and safety.[88]
[88] T75, 465.
On 8 October 2019, Dr Malik wrote to Comcare to support her pool and gym membership request. He noted:
She has suffered from major depression and anxiety following a psychological injury in the workplace. Her condition has become chronic and has shown only a partial response to antidepressants and psychological therapy. She has been encouraged to include lifestyle measures such as a healthy diet, exercise and social connections to assist her recovery. These are evidence-based adjunctive measures that have been proven to assist patients suffering from depression.[89]
[89] T77, 467.
On the same day, Dr Malik reported to Dr Masters:
Ms Grantham attended an appointment to see me on 22.08.2019 accompanied by her younger daughter. Kim. There had been an overall improvement in mood but she continued to feel low on some days. There were 3 new people training in her workplace which had led to a reduction of workload. She had been attending a group fitness programme at Gungahlin Leisure Centre and this improved her sense of well-being. Her appetite was normal and she was sleeping better. Her energy levels were improving with regular exercise. Her memory was suboptimal, worse when she was anxious. She occasionally heard the voice of the woman who had bullied her in the workplace. She tried to ignore these experiences and focus on something else. She had succeeded in meeting new challenges such as visiting a friend and going on a picnic by the lake. She reported feeling anxious whilst getting there but had a sense of accomplishment at having achieved her goal.
He reported an overall improvement in mood, but she continued to feel low on some days.[90]
[90] T78, 468; ST100, 111.
On 15 February 2020, Dr Malik reported that he had seen the Applicant and Kimberley on 21 November 2019, 21 December 2019, 18 January 2020, and 15 February 2020. He reported that her mood had been stable overall but that she ‘experiences significant anxiety when reminded about previous workplace’.[91]
[91] T79, 469; ST101, 102.
On 14 March 2020, Dr Malik saw the Applicant by teleconference and reported that she had experienced worsening anxiety symptoms in the context of the coronavirus pandemic.[92]
[92] T80, 471; ST102, 114.
On 18 April 2020, Dr Malik reported that there had been an incident at work. The Applicant was required to do a computer-based training module relating to COVID-19 and was told that she could not return to work unless she completed the task. She had a panic attack and could not calm down. He reported as follows:
This brought back memories from the past of her experiences in the workplace. She asked for assistance and guidance to complete the module but could not settle down emotionally. She was crying constantly, went to the loading garage and opened the door for some fresh air to calm down. She went back to her work area, her supervisor asked if she was alright, to which she replied that she was upset. She could not meet anyone in management as they were unavailable. She felt overwhelmed and was crying and shaking uncontrollably. Her supervisor tried to calm her down but she felt her brain was shut down and she felt like she was going to lose her job. She was sweating profusely and could not calm down. Her supervisor called her daughter to pick her up. Ms Grantham was observed to be very anxious and distressed during the interview and was shaking uncontrollably.
…She had been experiencing memories of her experiences in the workplace and heard the voice of the female colleague who had bullied her.[93]
[93] T81, 472; ST103, 105; RSFIC 3.32.
Dr Malik interviewed her by teleconference on 5 May 2020 and on 23 May 2020. He reported as follows:
Ms Grantham attended an appointment by video conference on 05.05.2020 and 23.05.2020.
On 05.05.2020, she reported feeling calmer after taking lorazepam. Her legs were not shaking as much and she was sleeping better. She had been spending time with her grandchildren and going on regular walks. She enjoyed helping out with cooking. She felt tired and slow in her thinking in the morning. She had occasional thoughts of her experiences in the workplace which made her upset. When she was distressed, she could hear the voice of the woman who harassed her. Her daughter believed that she was not ready to return to work and needed plans to be put in place for her to be supported when she returns. I have advised her to wean down lorazepam over the next 2 weeks and continue duloxetine 90 mg mane.
On 23.05.2020, she reported feeling up and down in her mood. She had weaned down and stopped lorazepam. She had been waking up twice at night and took a while to get back to sleep. She had occasional memories of her experiences in the workplace. She felt she was pushed to online modules on the computer at work even though the employers were aware that she needed support for computer tasks. Felt traumatised when she was told she could not work for the government if she did not complete the module. She was reminded of the bullying in the past and felt her employers were unsympathetic. She became very upset. She did not feel ready to return to work. Her daughter wanted strategies put in place where Ms Grantham felt safe and supported in a return to work plan. She was asked to attend an appointment with a clinical psychologist for psychometric testing…
I believe that Ms Grantham's emotional state remains fragile and has taken a long time to improve after the recent incident. She would need a lot of support and mentoring from the employer if she was to return to work. This should be discussed in a case conference with the employer and insurance company. If a supported return to work plan is not feasible, a medical redundancy should be considered.[94]
[94] T82, 474; ST105, 118.
On 1 June 2020, EML, the claims management agency for the ACT Government wrote to Dr Fernando Roldan, clinical psychologist, to obtain a psychological assessment.[95] Dr Roldan reported on 7 July 2020. He stated that he was unable to reach a concluded opinion with regards to diagnosis or aetiology.[96] He expressed concern that some commentators had failed to mention the relevance of any pre-morbid condition:
6.6 In my opinion, it is also necessary to indicate here that my reading of the available documentation suggests that a number of commentators in this case have been unaware of stressors in Ms Grantham's life other than the subject work-related injury event. In particular, I note that Ms Grantham’s alleged physical and other abuse at the hands of her second husband and/or her experience of assault at work in or about 1998 have not rated a mention in a number of reports. This is of concern because while Ms Grantham denied to me any history of psychological disturbance associated with factors other than the subject work-related injury, her treating psychologist appears to have made reference to these events as having contributed to Ms Grantham's now alleged psychological condition.
6.7 I would also like to indicate here that while (due to the restrictions placed on my assessment) I remain unable to arrive at a concluded opinion regarding symptom aetiology and diagnosis, I suspect that the ‘extreme’ psychological reaction implied by Ms Grantham’s history and presentation is an unlikely outcome of the work-related events described to me and others and is more likely to reflect a much more complex set of circumstances that involve not only work-related stressors, but also stressors in Ms Grantham’s personal life and personality factors. However, I reiterate that given the restrictions imposed on my assessment of Ms Grantham (see above) and the ‘complexity’ of the history (which I have to attempt to decipher almost 10 years post-subject injury), I am not in a position to reach any concluded opinions.
…
6.15.2 Having stated the above, and considering that treatment strategies need to be based on adequate understanding of symptom aetiology, the potential interaction of various circumstances and diagnosis, I would like to reiterate that my reading of the available documentation, including reports issued by treatment providers, suggests that some treatment providers may not be aware of the potential contribution of factors other than the subject injury. I also note that while one of the treating psychologist advanced a diagnosis of PTSD said to have been contributed to by domestic violence and work-related assault in 1998, this diagnosis and aetiological factors do not appear to be mentioned by other treatment providers.
[95] T83.1, 508.
[96] ASFIC 3.35; RSFIC 3.2.
On 18 July 2020, Dr Malik reported to Dr Masters:
On 20.06.2020, she advised me that she underwent an independent examination with a psychologist a week ago which made her very anxious with shaking and trembling. She felt confused with the questions during the prolonged 4 hour assessment. She felt this was due to her thinking becoming blurred and not due to language difficulties. Her sleep was disturbed at night. Her appetite was normal and energy levels were average. Her ability to focus could be impaired when she was anxious. She was looking for reassurance that she would be safe and not triggered before she returned to work. She wanted to continue to be involved in community activities. Her daughter, Kim, stated that her psychologist has suggested that it might be better for her to move to Sydney. Kim was frustrated by a lack of response to her requests for a case conference. She believed the insurance company should be doing more to support her mother.[97]
[97] T86, 515; ST108, 122.
In September 2020, EML requested Dr Martin Allan, consultant psychiatrist, to undertake an IME.[98] The brief history provided to Dr Allan noted that the Applicant had an accepted claim for compensation, and that the purpose of the IME was to understand her current psychological presentation and the significant contributions towards that presentation. EML was also seeking further understanding around Return-to-Work capacity and treatment recommendations.
[98] T88.1, 532.
Dr Allan conducted a file review. He did not interview the Applicant in person.[99] Her paperwork indicated the longstanding diagnosis of a major depressive disorder with psychotic features. He was unable to adequately comment on her current presentation having been unable to meet her. He noted that she had had numerous assessments, all of which have confirmed a diagnosable mental illness. His impression was that she has had major depressive disorder and likely general anxiety disorder with co-existing symptoms of psychosis:[100]
The diagnosis of her condition has not changed, however. I am unable to provide a clear timeline, based on the information and I would refer you to the other psychiatrist who have reviewed Ms Grantham who have provided a clearer narrative on their observations having been able to talk to her.[101]
He did not have sufficient information to comment on the specific triggers and reasons between fluctuations and symptoms over the last ten years.[102] He was asked:
Having regard for the work-related incident in November 2010 specifically, does Ms Grantham’s employment continue to cause or contribute to her current condition? A. If so, please advise which workplace factors made a significant contribution to the condition?
He replied:
From my understanding Ms Grantham’s condition arose in November 2010. It is a chronic condition that has persisted since that time, albeit fluctuant severity. The initial onset and the reasons for it remain relevant to her case and certainly the initial incidents that precipitated the development of her condition in the first place remain relevant given that without them she would not have fluctuant mental health difficulties, thereafter, as she is continuing to experience. (Emphasis added)
[99] T88, 524; ASFIC, 3.36; RSFIC, R3.2.
[100] T88, 523.
[101] T88, 524.
[102] T88, 524.
Dr Allan’s first report is summarised in the ASFIC as follows, but this summary does not do justice to the degree of circumspection in Dr Allan’s report:
(a) The Applicant suffered from major depressive disorder and general anxiety disorder with co-existing symptoms of psychosis.
(b) The Applicant’s condition had fluctuated in intensity over time, but the diagnosis of her condition had not changed, and she was “prone to fluctuant symptoms for the remainder of her life”.
(c) The “initial incidents that precipitated the development of her condition in the first place remain relevant”.[103]
[103] T88, 519; ASFIC, 3.36; RSFIC, R3.2.
Dr Malik continued to conduct regular sessions with the Applicant. On 8 October 2020, he reported that he had seen the Applicant by videoconference on 15 August 2020 and teleconference on 8 October 2020. He referred to her feeling of isolation and anxiety that she would not be able to work for the government. She was hoping that Comcare would approve funding for a gym membership.[104]
[104] T89, 540; ST 109, 124.
On 21 January 2021, he reported that he had interviewed the Applicant on 12 November 2020, 10 December 2020, and 21 January 2021.[105] He interviewed her on 23 February 2021 and 1 June 2021.[106] On 23 November 2021, he reported that he had interviewed her on 13 July 2021, 24 August 2021, 21 September 2021, and 23 November 2021.[107] He noted:
On 13.07.2021, she reported feeling anxious and sad in the context of changes caused by Covid shutdown. She did not feel ready to retire from work and wanted to look for volunteer work options. The focus of her treatment was currently on well-being, exercise and community participation. Her sleep continued to be disturbed and appetite was normal. She had occasional memories of her workplace experiences which made her sad. She could hear her ex-colleague's voice when she remembered previous experiences. I have provided validation and support, I have advised her to continue Cymbalta 90 mg mane and Circadin 2 mg nocte prn.
On 24.08.2021, she reported feeling frustrated by lockdown. She had been attending an exercise group and had been seeing an exercise physiologist. She had been spending time with her grandchildren, solved puzzles, watched television and helped out with housework. She felt somewhat low in mood. She was frustrated by restrictions and having to wear a mask. She was worried about the uncertainty of the future. She had been put on an invalidity pension by ACT Health. I have encouraged her to exercise regularly and continue usual medications.
On 21.09.2021, she reported feeling weary of lockdown. Her mood was occasionally low, appetite was adequate and sleep was disturbed. She had occasional memories of past experiences but could distract herself. I have provided validation and support, encouraged her to engage in psychological therapy and continue Cymbalta 90 mg mane and Circadin 2 mg nocte.
On 23.11.2021, she expressed relief at the ending of lockdown. She was attending the gym regularly and had started attending a women's group for exercise and recreational activities. Her mood had been stable. She woke up twice at night to go to the toilet but could go back to sleep. She had occasional memories of her workplace experiences. She was looking forward to travelling to The Philippines when the pandemic was under control. I have advised her to continue her regular medications.[108]
[105] T92, 545; ST 110, 125.
[106] T93, 546; ST 111, 126.
[107] T99, 636; ST112, 127.
[108] T99, 636; ST112, 127.
I come to the second report by Dr Allan. He interviewed the Applicant in his clinic on 6 April 2021, and provided a report dated 14 April 2021. His responses are summarised as follows:
(a) The Applicant suffered from major depressive disorder which was caused by bullying at work in 2010.
(b) The Applicant had continued to suffer from major depressive disorder since its onset.
(c) He found “no evidence of nonwork-related factors impacting on her current presentation.”
(d) The Applicant’s employment continued to cause her current condition and she remained deeply distressed by the events that occurred in 2010.[109]
[109] T94, 547; ASFIC, 3.37; RSFIC, 3.2.
In the report of 14 April, in response to a question as to when the condition arose and whether there were non-work-related factors, Dr Allan stated:
Ms Grantham developed major depressive disorder in 2010, approximately. She has had fluctuant symptoms of this ever since. Her capacity has fluctuated since. She had an exacerbation of her condition in around April of 2020, in the circumstances described. I find no evidence of nonwork-related factors impacting on her current presentation.[110]
[110] T94, 557.
In response to a question relating to the extent to which workplace factors have contributed to the condition, he replied:
Ms Grantham’s employment continues to cause her current condition. She had an onset of depression in 2010. She remains deeply distressed due to the events that occurred then. She feels that this has greatly impacted her ability to work and she has had an enduring health issues since that time. The condition had its onset in 2010, although it has fluctuated over the years. The fact that her employment led to her developing her condition, continues to be inherently related to her ongoing fluctuations of the condition.[111]
[111] T94, 557.
A dissenting report
On 12 October 2021, EML wrote to Dr Kar, consultant psychiatrist, thanking him for agreeing to provide an IME.[112] The letter confirmed that the Applicant would be accompanied by ‘a support person, her daughter Ms Kim Grantham in room for technical support during the telehealth assessment and an interpreter for this assessment’. The appointment was arranged for 21 October 2021.
[112] T98.1, 628.
Dr Kar reported on 21 October 2021. Dr Kar wrote that the Applicant met the DSM–V criteria for schizophrenia, paranoid type. He wrote that this condition was serious and chronic. He accepted that the Applicant was upset, offended and angry at being called ‘ugly’. But he considered that a hurtful comment could not cause schizophrenia. He noted that the Applicant was admitted to hospital for frank psychotic symptoms of paranoia, delusions, and hallucinations. He noted that there was no direct evidence that there was any ‘gossip’ about the Applicant and therefore concluded that the ‘alleged gossip was a symptom of her schizophrenia’. Similarly, he noted that there was no report of a psychiatric injury immediately following the use of ‘a single word’, ‘calling her "ugly" in her native language, Tagalog’. He also discounted any temporal relationship between the Applicant being called ugly on 13 November 2010 and the onset of her paranoid schizophrenia. He noted that, in between, she faced a 'more significant stressor' when her father passed away in 2011. He considered that depression and anxiety are common in the early stages of schizophrenia before the onset of frank and overt symptoms.[113] Those who saw the Applicant in the presence of either daughter (nearly all of them) had fallen into error, having been given an inaccurate history. He opined that the presence of a third party (especially a family member) would inevitably lead to error. He referred to professional guidelines in support of this view.
[113] This summary is taken from RSFIC 3.20.
His conclusion was that the Applicant never suffered from a psychiatric condition because of events at work in about 2010, and that she suffered from non-work-related schizophrenia instead, which commenced in the middle of 2011.[114]
[114] ASFIC, 3.38; RSFIC, R3.2.
On 14 December 2021, Dr Malik wrote that the Applicant’s ‘clinical picture [was] not consistent with a diagnosis of schizophrenia and [was] common in patients with a history of trauma.’[115] Dr Malik stated:
Thanks for your letter dated 08.12.2021 advising me of the results of Ms Grantham's recent independent medical examination. The IME has opined that Ms Grantham suffers from schizophrenia and that her psychiatric condition is not related to work.
As you are aware, Ms Grantham has been attending regular appointments to see me since 05.02.2019. I maintain my opinion that Ms Grantham has suffered from Major Depressive Disorder with Anxious Distress. Her psychological condition has been caused by alleged harassment in her workplace. Prior to 2019, Ms Grantham has undergone in-patient admissions in which her treating psychiatrists have diagnosed her with Major Depression with psychotic features and prescribed antidepressants and antipsychotics. Her psychotic symptoms were exclusively related to her traumatic experiences in the workplace. Currently, she reports occasional memories of her workplace experiences associated with some hallucinatory experiences in the form of hearing the voice of the alleged perpetrator of abuse. These experiences are clearly related to her mood and occur when she is anxious, are progressively improving with time and do not impact her functioning. She has not been on any antipsychotic medications for several years but there has been no worsening of symptoms over this period of time. This clinical picture is not consistent with a diagnosis of schizophrenia and is common in patients with a history of trauma.
[115] ST114; ASFIC 3.39; RSFIC 3.2.
On 25 November 2022, the Respondent’s representatives wrote to Dr Roldan to seek a further report.[116] The report by Dr Kar dated 21 October 2021 was included in the briefing notes.
[116] Respondent’s materials, item 7.
Dr Roldan’s second report is dated 11 January 2023.[117] He stated that he remained ‘unable to confidently reach a conclusive opinion with regards to diagnostic and aetiological issues.’[118]
[117] Respondent’s materials, item 7.
[118] ASFIC 3.43; RSFIC 3.2.
On 3 November 2022, the Applicant’s solicitor wrote to Dr Rajiv Siotia, consultant psychiatrist, to request a psychiatric assessment.[119]
[119] Applicant’s materials, item 2.
In a report dated 1 February 2023, Dr Siotia reached the following conclusions:
(a) The Applicant suffered from “persistent depressive disorder, late onset, with persistent major depressive episode, severe with psychosis and generalised anxiety disorder”.
(b) He disagreed with Dr Kar’s diagnosis of schizophrenia.
(c) Events at work in about 2011 caused her to develop her injury which in spite of robust treatment had not remitted. Prior to those events, the Applicant was “functioning well in her day-to-day life” and had worked with the same organisation for 21 years.
(d) Employment contributed to the Applicant’s illness to a significant degree. No other causes were relevant.
(e) He considered that the Applicant’s impairment was permanent and that it was 25% as assessed in accordance with Comcare’s Guide to the Assessment of the Degree of Permanent Impairment.
(f) The Applicant was not fit to work and required ongoing medical treatment.[120]
[120] ASFIC, 3.44; RSFIC 3.2.
In a report dated 6 March 2023, Dr Kar wrote that his opinion was unchanged.[121]
[121] ASFIC, 3.45; RSFIC 3.2.
CONSIDERATION
The issue before the Tribunal is whether the Respondent’s refusal to give effect to a previous determination of liability under section 14 of the SRC Act, on the basis that the effect of the original injury is spent, was soundly based. In practical terms, the burden of persuasion rests with the Respondent who seeks to disturb the status quo. The Tribunal needs to be comfortably satisfied that it is justified in disturbing the status quo.[122]
[122] Gregory and Comcare [2018] AATA 2075; T103, 649.
The reviewable decision was based on a report made by Dr Kar, a psychiatrist appointed as an independent expert, who reported that the Applicant had been misdiagnosed and that she had not suffered an injury in the manner accepted by Comcare in 2011. In these proceedings, the Respondent asks the Tribunal to find that the incident said to have given rise to a compensable injury did not happen or could not have had the impact previously accepted.
Dr Kar is of the professional opinion that it is ‘very unlikely’ that a single traumatic event could cause major depression.[123] In his opinion, a more likely explanation of her disability is that she suffers from a long-standing illness, namely schizophrenia, and that this condition emerged around the same time as the incident at work but was not causally connected to it. He opines that her behaviours satisfy the diagnostic indicators for schizophrenia but not for major depression. He accepts that he is the only health professional who has diagnosed schizophrenia.
[123] Transcript, 17 August 2023, 12, 13.
In terms of the reliability of diagnoses made by other health professionals, he considers that those who saw the Applicant with either Kimberley or Jane had been misled by their narration or advocacy. Dr Kar considers that the presence of a third party (especially a family member) leads inevitably to error and refers to professional guidelines which frown on such a practice. He considers that those health professionals who saw the Applicant in the presence of either daughter (nearly all of them) have formed erroneous judgments because of their advocacy.
In his substantive report dated 21 October 2021, Dr Kar states that Kimberley was present throughout his videoconference session with the Applicant, but he believes that he has not been distracted by Kimberley’s comments or explanations, and that he alone has objectively applied the DSM criteria.[124]
[124] T98, 584.
The submission advanced for the Respondent by Mr Gollan, on the back of Dr Kar’s report, is that the Respondent has been fed a false narrative by the Applicant and her daughter. The narrative was so persuasive that several treating psychologists, psychiatrists, and health professionals accepted it. The truth, says Mr Gollan, is that she suffers from schizophrenia, she is undeniably very sick and may never recover, but this condition was not caused or aggravated by a workplace incident, and therefore she is not entitled to compensation for major depression. He suggests that her symptomatology in 2010 to 2011 and ever since is due to schizophrenia for which the Respondent is not responsible.
Mr Gollan submitted that the critical issue for the Tribunal to determine is whether her existing condition falls within the scope of the original claim. He submitted that the Applicant should be bound by the terms of her original claim. He submitted that her existing condition fell outside the scope of the claim, regardless of whether Dr Kar’s evidence was accepted. Dr Kar’s opinion did, however, offer some therapeutic insight that could be useful to her and her treaters.
Mr Gollan sought to confine the Applicant to a very narrow reading of the original claim, as requiring proof that she was called ‘ugly’ in an insulting way, as a reference to her appearance, that this had caused a major mental illness and she was still suffering the effects.
Mr Schofield, for the Applicant, submits that the claim was ‘more than just about the initial incident’.[125] He referred to the timeline document prepared by the Respondent which conveyed the events which contributed to the determination of liability.[126]
[125] Transcript, 6 October 2023, 397.
[126] T3, 108.
I am satisfied that the original claim does not stand or fall on a single incident. There was a protracted period of mediation and consultation before the acceptance of liability, and Comcare accepted liability on the basis that this had added to the original injury. I accept Mr Schofield’s submissions regarding the nature of the Applicant’s claim and the way in which the Tribunal should approach its task in a ‘cease-effects’ case.
Section 5B of the SRC Act defines ‘disease’ as an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or licensee. Subsection 5B(3) states that ‘significant degree’ means a degree that is substantially more than material.
Subsection 5B(2) refers to a number of non-exhaustive matters that may be taken into account in determining whether there was a significant contribution. In terms of duration, the Applicant was a long-standing employee of more than two decades with an unblemished work record. She was well adapted to her work and took great pride in it. The nature of her duties was canvassed in the hearing. It was for the most part a congenial role, although on one occasion she was attacked by a patient. She appeared to have a benign attitude to this incident, saying that the patient could not help himself.
The question of predisposition is alluded to in some of the later reports, and especially that of Dr Roldan who expressed concern that some commentators had failed to mention the relevance of any pre-morbid condition.
Even taking account of the comments of Dr Roldan about pre-morbid conditions, the overwhelming weight of medical evidence is that the insult Ms Grantham perceived on 13 November 2010 led to a complete breakdown of her mental health, so that within six months she required treatment for acute depression with psychotic features. Dr Kar’s opinion that this was the coincidental manifestation of an entirely separate disease, namely, schizophrenia, is not supported by those who provided contemporaneous medical treatment. Nor is it accepted by the psychiatrists, psychologists and general practitioners who have seen her in more recent years.[127]
[127] See Appendix.
It is apparent that Dr Kar’s evidence is an outlier, and even Dr Roldan, who carefully considered Dr Kar’s opinion, was unpersuaded that a diagnosis of schizophrenia was appropriate. Dr Roldan reviewed 3,253 pages of documents and produced a thorough report that provides no clear support for the narrative advanced by the Respondent.
I am not persuaded on the balance of probabilities that the views expressed by Dr Kar should be accepted over those of Dr Siotia or the many other psychiatrists who diagnosed a major depressive disorder, as set out in the schedule contained in paragraph 3.2 of the Applicant’s Final Written Submissions, which I have set out below in the Appendix.
As to the notion that other doctors were misled by Kimberley, in the Tribunal’s opinion, it is an affront to the professional competence and indeed integrity of the many consulting physicians and psychiatrists to suggest that their assessments were compromised by the presence of Kimberley or Jane. It is hard to believe that only Dr Kar carried a torch for the truth.
The Applicant sought to impugn the professional competence of Dr Kar and the way he applied the criteria set out in the DSM for schizophrenia and major depression. I do not think that it is necessary for the Tribunal to comment on this, other than to say that in the circumstances of this case and having carefully examined the myriad of medical reports made available to the Tribunal, I am not persuaded by Dr Kar’s opinion. In light of Dr Siotia’s oral evidence, and the extensive reports made by Dr Allan, Dr Roldan, Dr Malik, Dr Pahn and others, I am comfortably satisfied that Dr Kar’s evidence should not be preferred.
In his final oral submissions, Mr Gollan submitted that the Tribunal could and should find for the Respondent even if Dr Kar’s evidence was not accepted. He submits that the Tribunal should set aside the original determination on the basis that it is not factually sound. He submits that the Tribunal should reject the Applicant’s evidence regarding her relationship with MQTQ. While I accept that the duration of their relationship, the nature of the relationship between MQTQ and her former husband, and other details, may have been misunderstood or misapprehended by the Applicant, I see no reason for doubting that the exchange occurred or, in view of the medical evidence, its potency to do harm.
The work colleague who uttered the word ‘ugly’ has admitted to using that word. She states in a signed document headed Outline of Evidence that she used the word ‘ugly’ but was referring to the Applicant’s behaviour, not her appearance.
I noted above that the delegate relied upon Wiegand, where von Doussa J stated:
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.[128]
[128] Wiegand v Comcare [2002] FCA 1464, at [31]; T23, 279.
Weigand was considered in Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52. The applicant there submitted that Wiegand was wrongly decided, referring to [31] of von Doussa J’s reasons. The applicant submitted that this passage impermissibly allowed an unreasonable perception of an ordinary event in the workplace to amount to a material contribution to injury. Madgwick J held (at [50]) that Wiegand should not be followed to the extent that it suggests a ‘less onerous view of “in a material degree”’. His Honour went on to say, at [51]:
[a]n alleged contribution which is merely imagined by the employee, in circumstances where the employment was in truth, in the apt phrase of Davies J in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, an “inert” factor will plainly not suffice. But that was expressly acknowledged in Wiegand at [24] and [25] and there was no suggestion to the contrary here.
In Dean v Australian Postal Corporation [2010] FCA 680 at [12], Perram J helpfully sets out the correct application of Wiegand (and specifically the passage at [31]), as contemplating a ‘three step test’, namely:
1)Whether the incident occurred;
2)Whether it created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others); and
3)Whether that perception contributed to, in a material degree, an aggravation of the employee’s ailment.
As noted above, it is conceded that MQTQ used the word ‘ugly’ which, spoken in the Applicant’s first language, was capable of being understood by her in an insulting and cruel way, and the weight of professional opinion, especially that conveyed by Dr Siotia, is that a single instance may in some rare cases cause a severe mental health reaction.
Considering all the medical evidence, I have no hesitation in finding that the Applicant continues to suffer from the aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth. The impact of the original injury has not been spent, or crowded out, by non-work-related factors. The Applicant continues to suffer from the effects of the original injury, as defined in the original determination.
The Applicant submits that there is no evidence that the Applicant already suffered from mental illness at the time of the relevant work events, and therefore that the word ‘aggravation’ should be removed from the description of the compensable injuries. The Applicant relies on Abrahams v Comcare [2006] FCA 1829 at [23] as permitting such a change. I am reluctant to accede to this request. I note that during closing final submissions neither counsel wished to explore more fully the impact of various factors such as domestic violence upon her pre-existing mental state. I am reluctant to interfere with the original determination, which in my view, was soundly based. I am satisfied that the original determination made by Comcare in 2011 was sound and that there is no ground for finding that Comcare erred in accepting liability.
DECISION
The reviewable decision dated 5 April 2022 is set aside and substituted with a decision that, as of 28 February 2022, the Respondent is liable to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for aggravation of Major Depressive Disorder, single episode and aggravation of Depressive Type Psychosis.
The parties are directed to file written submissions on the question of costs within 28 days of this decision.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
......[SGD].............................................................
Associate
Dated: 18 December 2023
Dates of hearing: 14, 15, 16, 17 August and 6 October 2023 Date final submissions received: 21 September 2023 Counsel for the Applicant: Mr A. Schofield Solicitors for the Applicant: Mr T. Maling, Elringtons Lawyers Counsel for the Respondent: Mr M. Gollan Solicitors for the Respondent: Mr R. Moss, HWL Ebsworth Lawyers APPENDIX
Doctor Specialty Diagnosis Dr Pahn GP Initially generalised anxiety disorder, later major depression and PTSD Ms Chambers Psychologist PTSD and depression and anxiety with mild paranoid features Dr Fitzgerald Psychiatrist Major depression with psychotic features Dr Marchesi Psychiatrist Major depression with psychotic features Dr Porta-Cubas Psychiatric registrar Major depression with psychotic features Dr Salesian Psychiatric registrar Major depressive episode with mood congruent psychotic features Dr Pyakurel Unknown Major depression Dr Smith Psychiatrist Major depression with psychotic features Dr Manoharan Psychiatrist Major depression with psychotic features Dr Toh Psychiatrist Initially PTSD, then major depression with psychotic features Dr Zsadanyi Psychiatrist Major depressive disorder Dr Majoor Psychiatrist Major depressive episode with psychotic features Dr Masters GP Psychotic depressive disorder Dr Saboisky Psychiatrist Major depressive disorder with psychotic features and phobic anxiety Dr Takyar Psychiatrist Major depressive disorder with psychotic features Dr Malik Psychiatrist Major depression with anxious distress Dr Roldan Clinical psychologist No diagnosis, but ‘more in keeping’ with major depressive disorder with psychotic features Dr Allan Psychiatrist Major depressive disorder Dr Kar Psychiatrist Schizophrenia Dr Siotia Psychiatrist Persistent depressive disorder, late onset, with persistent major depressive episode, severe with psychosis and generalised anxiety disorder
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