Guy Laviano and Comcare
[2013] AATA 229
[2013] AATA 229
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/1882
Re
Guy Laviano
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Dr Alexander, MemberDate 16 April 2013 Place Sydney The decision under review is affirmed.
............[SGD]............................................................
Senior Member A K Britton
CATCHWORDS
COMPENSATION — Commonwealth employees — Anxiety adjustment disorder and depressed mood — Whether the employee suffered from a disease — Whether the employee suffered a recognised psychiatric illness — Whether the employee suffered a psychiatric disorder or a condition “outside the bounds of normal mental functioning” — Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5B(1); 14;
CASES
Amity Group Pty Ltd v Yusuf [2009] NSWWCCPD 152
Comcare v Mooi (1996) 69 FCR 439
SECONDARY MATERIALS
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 (DSM–IV).
REASONS FOR DECISION
Senior Member A K Britton
Dr Alexander, Member16 April 2013
Mr Guy Laviano is employed as an administrative officer with the Fair Work Ombudsman (formerly the Office of the Employment Advocate). He seeks review of a decision made by Comcare to refuse to accept liability for his claimed conditions of “anxiety adjustment disorder and depressed mood” and “anxiety (acute)” said to have been caused by his employment. The stated reason for that decision was that Mr Laviano did not suffer from a psychiatric disorder or a condition “outside the bounds of normal mental functioning” and therefore had no entitlement to compensation under the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act).
Comcare will be liable to pay compensation to Mr Laviano if he suffers a “disease”, which results in impairment or incapacity for work (s 14 of the Act). “Disease” is defined to mean: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth (s 5B(1)).
The sole issue addressed in these Reasons is whether at any time between commencing employment with the Ombudsman and the making of a claim for compensation, March 2004 to June 2009 (the claim period), Mr Laviano suffered from a psychiatric “ailment”.
BACKGROUND
Mr Laviano claims that throughout the claim period he suffered from a number of physical conditions that had been caused, or aggravated by, work, including eye strain, neck and back discomfort and right arm pain. Throughout this period a number of assessments of Mr Laviano’s immediate work environment were carried out and recommendations made. The parties disagree on both the quality of those assessments and the extent to which any recommendations made were implemented. Mr Laviano was of the opinion that the duties he was allocated throughout the claim period were unsuitable having regard to his “physical disabilities” and, as a consequence he was subjected to an unsafe work environment. He asserts that the treatment meted by his employer was unreasonable and did not comply with relevant health and safety regulations. Comcare disagrees.
History of symptoms and treatment
Mr Laviano claims that he first experienced symptoms of anxiety in September 2004. On his account apart from a marked decrease between September 2009 and late 2011, since 2004 his symptoms have remained relatively constant apart from some “ups and downs”. According to Mr Laviano his symptoms include feelings of anxiety, depression and being under pressure (See Exhibit A8).
Mr Laviano has been a patient of the Ramsay Street Medical Centre (the Medical Centre) since 2003. A number of general practitioners are attached to the Medical Centre and Mr Laviano sees whoever is available. The clinical notes of Mr Laviano’s attendances at the Medical Centre throughout the claim period were produced in these proceedings and reveal that on 36 of the 141 occasions he attended the Centre he reported psychological symptoms (variously described). Included in that number are consultations where Mr Laviano reported both psychical and psychological symptoms. Not included are 11 consultations where Mr Laviano was recorded to be suffering headaches but no mention is made in the relevant note to stress or anxiety.
Mr Laviano reported to his GPs during four separate consultations in late 2004 that he was suffering from stress and/or anxiety. He was referred to a cardiologist for testing after reporting “chest discomfort”. No abnormalities were detected. In February/March the following year he reported to his doctors that he was suffering “depression, anxiety unresolved family and work problems”. On 28 March 2006 the treating GP recorded:
History:
Wife left him last night.
Weight loss
Not sleeping.
…
Assessment:
Depression, resistant to treatment.
Not psychotic.
Given psych. Referral – strongly advised to follow through
Given also no. of mental health crisis team at Croydon.
Has no family apart from wife and children that have just left.
Requesting sleeping tablets: request refused as may attempt self-harm.
Despite his GP’s recommendation Mr Laviano did not see a psychiatrist or take anti-depressants. On his account he wanted to try and manage the condition himself and was reluctant to take medication because of concerns about their side effects. Over the following month he attended the Medical Centre on four occasions and reported being “stressed” and “depressed”.
The next entry in the clinical notes referring to Mr Laviano reporting symptoms of anxiety is that made on 21 September 2006. Apart from references to “counselling re workplace issues” and a reference to Mr Laviano reporting stress in April 2008, the records contain no further mention of psychiatric type symptoms until October 2008. The records for the period October 2008 to March 2009 reveal a marked increase in Mr Laviano’s report of symptoms.
In May 2008 in answer to a request made by Comcare for information concerning Mr Laviano’s claimed physical conditions, after detailing the history in respect of those conditions GP, Dr William Kirby wrote:
Additionally this patient suffered badly from psychological issues during his previous workers compensation case and in retrospect there may have been denial on his part to share with me his early beliefs that his condition was work related. I would suspect an adjustment disorder with anxious mood and significant depressive symptoms to have been the diagnosis. Dr Lamond intervened in the current case as noted above.
5) Diagnosis – the working diagnoes [sic] are:
·Occupational overuse syndrome from inappropriate posture due to improper workstation set-up
·Adjustment disorder with anxious mood due to the process of the workers compensation system and due to the prolonged nature of the pain experience.
…
The diagnoses are based on the natural history of this man’s condition as it has evolved.
On 27 March 2009 Dr Kirby issued a Workcover certificate stating that Mr Laviano was suffering from “nervous disturbance, likely carpal tunnel syndrome or occupational overuse syndrome and nervous disorder (acute)” and certified him unfit for work for a week. On review on 1 April 2009 Dr Kirby issued another certificate certifying Mr Laviano unfit for work for a further four days and recorded that Mr Laviano’s “mood and anxiety symptoms have settled significantly”. It is unclear from that certificate whether Dr Kirby considered Mr Laviano unfit for work on account of anxiety, carpal tunnel syndrome or both.
In a report dated 19 November 2009 in answer to a request from Comcare for further information about his diagnosis of “adjustment disorder with anxious mood and acute anxiety” Dr Kirby wrote:
My diagnosis is based on the ongoing knowledge I have of Mr Laviano from all consultations. I am of the opinion he has personality traits that involve anxiety. These are not intrusive into his normal life and so not an illness.
He variously reported intrusive management and management actions concerning workplace OH&S investigations, the results of which he was excluded from until he complained. He has also had a long standing difficulty with gaining suitable duties and appropriate workplace investigations.
The work related issues have resulted in the recommended diagnosis of an adjustment disorder.
If there is concern then assessment by a psychiatrist would be appropriate.
Throughout the claim period Mr Laviano was certified unfit for work on 79 occasions. On eight occasions he was certified unfit for work because of psychiatric symptoms; on the remainder he was certified unfit because of a physical condition or an unspecified condition. The first certificate that makes any reference to psychiatric symptoms was issued on 3 October 2008 and records Mr Laviano as suffering from “work related stress”.
In 2007 Mr Laviano commenced seeing psychologist, Mr Alex Fisher. While not sure Mr Laviano thinks that he might have seen Mr Fisher on about 20 occasions. In early 2009 at his request, Mr Laviano was referred to another psychologist, Ms Alison Waugh. Mr Laviano is unsure how many times he consulted Ms Waugh. Mr Laviano came under the care of psychologist, Dr Keith Dawes in early 2012 and at the time of the hearing had seen Dr Dawes on about 30 occasions. According to Dr Dawes there has been no improvement in Mr Laviano’s condition throughout that period.
According to Mr Laviano when he saw his GPs he did not always report that he was suffering symptoms of anxiety and/or depression. He claimed that he had formed the opinion that his doctors did not want to hear about all his problems and tried to manage things himself.
Opinion of Dr Peter Morse
At the request of his solicitors, Mr Laviano was assessed by psychiatrist, Dr Peter Morse in June 2012. In a report tendered in these proceedings Dr Morse wrote that in his opinion when he conducted his assessment Mr Laviano did not satisfy the criteria for a diagnosis of a psychiatric disorder according to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 (DSM–IV).
Mr Laviano told Dr Morse that he was “forever fearful” of his employer and anxious about his employment situation. Dr Morse recorded that when asked about his anxiety symptoms, Mr Laviano stated that he had no problems driving, being in shops or crowds or dealing with people. He also wrote that Mr Laviano did not spontaneously mention any symptoms suggestive of depression but when asked, said he “is down, lacking in confidence and has a low self-esteem”. On questioning, Mr Laviano stated that his motivation was “very low” and had gradually declined. He told Dr Morse that for some time he has had no involvement in social activities or contact with friends but maintained contact with his son.
Dr Morse wrote that he was unable to “definitively state” whether Mr Laviano could be diagnosed as suffering from a recognisable psychiatric illness prior to his transfer to a new position in [September] 2009. He noted that while Mr Laviano reported a lack of motivation and interest in any activity due to depression, nonetheless throughout the claim period he had the motivation to work full-time in the public service and perform at the required level, and, in addition, drive taxis on the weekend, travel to Thailand and undertake various activities which, in Dr Morse’s opinion, did not indicate he suffered symptoms secondary to depression (see report of Dr Morse, 12 June 2012, p 20 at [3]).
However on the basis of Mr Laviano’s self-report together with the recurrent references in the clinical notes to depressive/anxiety type symptoms Dr Morse concluded that Mr Laviano probably suffered some form of recurrent depressive/anxious condition throughout the claim period. Dr Morse thought it unlikely that Mr Laviano’s symptoms were severe or continuous and more likely that he had experienced episodic periods of anxiety and depression. Dr Morse thought the most likely diagnosis was “recurrent adjustment disorder with anxiety and depression”.
Opinion of Dr Thomas Newlyn
Dr Newlyn assessed Mr Laviano at the request of Comcare. He prepared two reports and gave oral evidence. In his first report, dated 19 October 2009, Dr Newlyn stated that when he assessed Mr Laviano in October 2009 he presented with anxiety symptoms but did not require treatment or satisfy the diagnostic criteria for a psychiatric condition. In a supplementary report, Dr Newlyn stated that after reviewing additional material provided by Comcare, which included the reports of Drs Morse and Dawes and some additional clinical notes, his opinion remained unchanged.
Dr Newlyn stated that after reviewing those additional notes he stood by his opinion because, among other things, they contained only occasional reports of anxiety/depressive type symptoms. When questioned about the significance of the entry made in March 2006, which revealed that the GP recommended that Mr Laviano see a psychiatrist and take anti-depressant medication, Dr Newlyn pointed out that that consultation occurred the day after Mr Laviano’s wife and children had left the family home and that in that context, in his opinion heightened symptoms of anxiety were “entirely normal”. He stated that a person suffering from anxiety is not necessarily suffering a psychiatric illness, explaining that anxiety is a normal human reaction to external stressors.
In his opinion the anxiety experienced by Mr Laviano throughout the claim period was within the “normal range” given that throughout that period he was apparently involved in a protracted workplace dispute. Dr Newlyn pointed out that despite not seeing a psychiatrist or taking medication Mr Laviano was able to continue to work full-time. Like Dr Morse, he thought it highly relevant that Mr Laviano was also able to drive taxis on the weekend and take overseas trips.
Dr Newlyn said that the referrals made by Mr Laviano’s GPs to psychologists under a mental health plan did not necessarily suggest that they were of the opinion that he suffered from a mental illness. He explained that such referrals did not require a diagnosis of a psychiatric illness. He asserted that such referrals were commonly made to enable people to receive Medicare funded counselling to develop strategies to deal with their problems.
Opinion of Dr Dawes
A report prepared by Dr Dawes dated 11 May 2012 was tendered in these proceedings. Dr Dawes had seen Mr Laviano on approximately 10 occasions when he prepared that report. Dr Dawes also gave oral evidence.
Dr Dawes tested Mr Laviano using: the IPAT anxiety scale; the Eysenck personality questionnaire and the IPAT clinical analysis questionnaire. According to Dr Dawes these tests revealed that Mr Laviano is “more anxious than 99 per cent of his peers” and his profile was that of a depressed man. Appling Table 4 of the clinical analysis questionnaire, Dr Dawes found that out of a possible score of ten, Mr Laviano scored nine for hypochondria and eight for suicidal depression, schizophrenia and psychological inadequacy. According to Dr Dawes, apart from psychotic episodes Mr Laviano had all of the symptoms of schizophrenia.
According to Dr Dawes, Mr Laviano has probably always displayed a high level of sensitivity. In his opinion Mr Laviano now suffers from an Adjustment Disorder.
Observations of friends and family
Tendered in these proceedings were statements prepared by Mr Laviano’s estranged wife and friends.
Mr and Mrs Laviano married in 2001 and separated three years later. They reunited for a short period in 2006 but are currently separated. Each is hopeful that their relationship can be repaired. According to Mrs Laviano, when she returned to Australia in September 2004 having spent four months in Thailand, her husband presented as a “different person”: he was very moody, angry and withdrawn. On her account when they got back together in 2006 he was “even more up and down”.
Mrs Laviano stated that in 2008 or 2009, she noticed Mr Laviano displaying “strange behaviours”: biting his nails, picking his nose and talking incessantly about “little things”.
Mr Graeme Ollis and Mr Laviano have been friends since 1990. They now live some distance apart but remain in regular contact. According to Mr Ollis, shortly after joining the public service Mr Laviano tended to focus on work concerns. In addition Mr Ollis stated that he had observed a distinct change in his friend’s personality. As an example he cited a recent trip to Bangkok where Mr Laviano appeared introverted, unmotivated and tired, and failed to accompany him on a short planned holiday to Burma. According to Mr Ollis, Mr Laviano now presents as very different to the adventurous and dynamic person he had known in the 1990’s.
Tendered in these proceedings was a statement prepared by human resources manager, Mr John Penney, who had worked with Mr Laviano in the late 1990’s. According to Mr Penney when he worked with Mr Laviano he found him to be a good worker and to have a friendly and engaging manner. He stated that that since joining the public service Mr Laviano appears to have changed and shows signs of being stressed in his working environment.
Fair Work Ombudsman Assistant Director, Ms Anthea Stavrakis, was summoned by Mr Laviano to give evidence. She recalled that when she first met Mr Laviano in mid-2009 he appeared guarded and had limited engagement with other employees. A few months later she took over the supervision of Mr Laviano because his team leader had complained that he found the task draining and eventually went off on stress leave. Ms Stavrakis stated that she implemented a structured management plan and had no issues with Mr Laviano’s performance or work levels.
DID MR LAVIANO SUFFER FROM AN AILMENT?
The issue to be determined is whether Mr Laviano suffered from an “ailment” within the meaning of the Act at any time within the claim period. The Act defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). Mr Laviano contends that throughout the claim period he suffered from a diagnosed psychiatric condition, namely an adjustment disorder and, in the alternative, a condition outside “the bounds of normal mental function and behaviour” (Comcare v Mooi (1996) 69 FCR 439 at 444).
Before considering these issues we will first examine concerns raised by each party about the expert evidence.
Did Dr Newlyn fail to give proper regard to Mr Laviano’s history of symptoms?
Mr Laviano contends that Dr Newlyn was biased against him and failed to give proper regard to his clinical history, in particular the reports of anxiety and depression recorded in the clinical notes.
When he prepared his first report Dr Newlyn had been given an incomplete version of the notes. Apparently in answer to a summons, the Medical Centre had initially produced that version because it understood it appropriate to delete any information of a personal and sensitive nature relating to Mr Laviano. This was later rectified and Dr Newlyn provided with a complete version of the records.
Mr Laviano argues that Dr Newlyn’s decision to stand by his original diagnosis after being provided with this additional information indicates that he failed to give proper consideration to his history. Mr Laviano contends that this was inconsistent with the approach taken by Dr Newlyn in a report referred to in Amity Group Pty Ltd v Yusuf [2009] NSWWCCPD 152 and indicated that he was biased against him. Apparently in that report Dr Newlyn stated that his conclusion that the worker suffered from a psychological condition was based in part upon the worker’s history.
Mr Laviano contends that it is not credible that Dr Newlyn genuinely reconsidered his opinion when provided with the complete version of the clinical notes. Dr Newlyn’s flippant and in our opinion unhelpful comment “I did not need the documents – I had you [Mr Laviano]” has not surprisingly added to Mr Laviano’s concern that Dr Newlyn gave only cursory consideration to his clinical history. While it is possible that Dr Newlyn did not read the full history, the reasoned answers he gave in oral evidence to questions concerning Mr Laviano’s history suggests otherwise. Furthermore we note that the version of the notes originally provided to Dr Newlyn contained most of the entries relating to Mr Laviano’s complaints of psychological symptoms. That he reached a different conclusion to Dr Morse about the significance of the records does not in our opinion establish that he failed to give them proper consideration or was biased against Mr Laviano.
Reliability of Dr Dawes’s opinion
Comcare contends that the opinion of a psychiatrist should generally be preferred over that of a psychologist and points out that Dr Dawes does not hold qualifications in the field of psychiatry or medicine and is not a clinical psychologist. Comcare also asserts that some his comments suggest that Dr Dawes lacks professional detachment: “I find [five of Mr Laviano’s colleagues] to be conspiratorial against [him]”; “the attitude of Mr Laviano’s managers is so unsophisticated that I would not dismiss the effect of stereotypical bullying based on his height [Mr Laviano is apparently shorter in stature than his managers]”.
Mr Laviano on the other hand argues that Dr Dawes has significant experience in the field of psychology and is the expert best placed to provide a reliable diagnosis because he has now seen him on thirty occasions. He pointed out that the assessments conducted by Drs Morse and Newlyn each ran for about an hour and claimed that the assessment conducted by Dr Newlyn, “felt rushed”. In contrast he claimed that he was able to “open up” with Dr Dawes. Dr Dawes testified that in his opinion he had an adequate opportunity to assess Mr Laviano.
While Drs Newlyn and Morse disagree about whether Mr Laviano was suffering from a psychiatric disorder during the claim period each concluded that when they met with Mr Laviano he was not suffering from such disorder or exhibiting clinically significant symptoms of anxiety or depression. In contrast, Dr Dawes, who prepared his report only a month before the assessment conducted by Dr Morse, concluded that Mr Laviano had the profile of a “severely depressed person”, was more anxious than 99 per cent of his adult male peers and exhibited all of the symptoms of schizophrenia, apart from psychosis.
It is a matter of common knowledge that schizophrenia is a serious illness. A diagnosis under DSM-IV requires: continuous signs of two or more of the following symptoms for at least six months — delusions, hallucination, disorganised speech, grossly disorganised or cationic behaviour, negative symptoms, together with social or occupational dysfunction and continuous signs of the symptoms for at least six months. It is unclear from his report on what basis Dr Dawes concluded that Mr Laviano met all but one of these criteria.
Dr Dawes’s opinions about the severity of Mr Laviano’s symptoms of depression and anxiety and that he met most of the diagnostic criteria of schizophrenia is not only at odds with the opinions expressed by Drs Newlyn and Morse but with the evidence before us about Mr Laviano’s mental state and functional capacity.
We do not agree with the proposition advanced by Comcare that the opinion of a psychiatrist should necessarily be preferred over that of a psychologist. Nonetheless in this case the extent of the inconsistencies not only on the issue of diagnosis but also on the severity of Mr Laviano’s symptoms, together with the implausibility of some of the conclusions reached by Dr Dawes, leads us to conclude that in the case the conclusions reached by Drs Newlyn and Morse constitute a more measured and reliable assessment and are to be preferred.
Was Mr Laviano suffering from a diagnosed psychiatric condition for all or part of the claim period?
Mr Laviano submits that consistent with the opinions of Drs Dawes, Morse and Kirby, he was suffering from a diagnosed psychiatric condition, namely an adjustment disorder, throughout the claim period.
One of the difficulties presented by this case is that, apart from Dr Kirby, none of the practitioners who have addressed the issue of diagnosis saw Mr Laviano during the claim period. As a consequence each is largely reliant on Mr Laviano’s self-report and the clinical records.
While, as suggested by Dr Morse, it is possible that in recounting his history Mr Laviano may have confused his current symptoms with those experienced during the claim period, the weight of evidence suggests that, apart from the period mid–2009 to 2011, when there was apparently some improvement, and a period of high anxiety after he and his wife separated in 2006, Mr Laviano’s symptoms have remained largely unchanged since 2004.
We accept that when assessed by Dr Newlyn (in October 2009) and Dr Morse (in June 2012) Mr Laviano was not suffering from an adjustment disorder or any psychiatric condition. This however does not exclude the possibility as Dr Morse believes that Mr Laviano was suffering from a psychiatric disorder during the claim period.
As Comcare points out, the opinion expressed by Dr Morse is couched in very qualified language: “I am unable to definitively state if [Mr Laviano] could be diagnosed as having a recognisable psychiatric condition prior to his transfer to his new position in 2009”. Dr Morse was at pains to point out that aspects of Mr Laviano’s history were in his opinion entirely inconsistent with his claim of lacking motivation or interest in any activity. He stated that what tipped the scales in favour of a diagnosis of a psychiatric illness were the “recurrent references” in the clinical notes to reports of feelings of depression and anxiety. While in his opinion Mr Laviano’s symptoms were neither severe nor continuous he concluded nonetheless that the “most likely diagnosis” was “recurrent adjustment disorder with anxiety and depression”.
Dr Newlyn, on the other hand, was not persuaded that the clinical notes supported a diagnosis of a psychiatric condition. He pointed out that during that period Mr Laviano’s marriage had broken down and he was in dispute with his employer. Dr Newlyn reasoned that in those circumstances it was not surprising that Mr Laviano experienced symptoms of anxiety. Indeed in his opinion, this was an entirely normal and healthy human response.
The difficulty we have with this argument is that adjustment disorder, by definition, occurs when a person is unable to cope with or adjust to one or more external stressors. A major event in a person’s life, such as a marriage breakup or severe workplace issue, could be triggers for such a condition. Good mental health requires adaptation or adjustment to the changed condition the person faces. Until that adjustment is made, they are not in healthy condition at all. If they fail to adjust within a reasonable period, they are, by definition, suffering a mental illness.
More significantly, Dr Newlyn also pointed out that the references to symptomology in the clinical notes were intermittent and there were extended periods where there no reports of any psychiatric symptoms. Like Dr Morse he thought it highly relevant that Mr Laviano not only continued to work full-time but also managed to drive taxis on the weekend and reportedly enjoy the company of passengers, take overseas trips and engage in activities not suggestive of significant anxiety or depression. For the reasons discussed above he did not attach any significance to the decision made by Mr Laviano’s GPs to refer him to psychologists.
While there is much about which they agree, Dr Newlyn and Dr Morse disagree about the interpretation and significance of the clinical notes. Dr Newlyn is of the opinion they merely indicate that from time to time Mr Laviano experienced unremarkable symptoms of anxiety and depression; Dr Morse on the other hand thought they probably indicated that Mr Laviano intermittently suffered from a psychiatric condition.
In interpreting these notes each faced the same difficulty we now confront, namely that they provide limited information. As is typically the case, the entries made in the clinical records are extremely brief. They were authored by a number of doctors making it difficult to gauge whether, in the opinion of his treaters, Mr Laviano’s symptoms varied, and, if so, to what extent, throughout the five year claim period.
In addition some entries are open to a number of interpretations. For example, the many entries to “counselling re workplace issues” might indicate that Mr Laviano was simply being counselled about strategies to employ in dealing with his ongoing workplace problems. Alternatively, they might indicate that the treaters considered Mr Laviano’s symptoms severe enough to warrant immediate counselling.
Dr Morse’s very tentative opinion that Mr Laviano was suffering from a psychiatric disorder (which he hesitantly nominated as most likely being an adjustment disorder) throughout the claim period sits uncomfortably with his firm clinical assessment that when he saw Mr Laviano in 2012 he was not suffering from a psychiatric disorder and the evidence that Mr Laviano’s condition has remained largely unchanged since 2004. If Mr Laviano was suffering from an adjustment disorder, it is difficult to square that with the intermittent nature of the symptoms.
On the other hand, Dr Newlyn’s opinion sits uncomfortably with that held by Dr Kirby, the only practitioner to have assessed Mr Laviano during the claim period whose opinion on diagnosis is before us.
The weight of medical evidence is that Mr Laviano did not suffer an adjustment disorder for the duration of the claim period. The more difficult question is whether he suffered from an adjustment disorder or other psychiatric disorder for part of that period. This is a complex question given the passage of time, the limited and poor quality of the contemporaneous material and the inherent difficulty of making a retrospective assessment about the severity of a person’s symptomology.
While it is possible that Mr Laviano suffered from a psychiatric disorder when he reported heightened symptomology to his treaters at various times (September/October 2004, February /March 2005 and late 2008/early 2009), given: Dr Morse’s somewhat hesitant opinion; those factors both psychiatrists believe to be inconsistent with a diagnosis of a psychiatric disorder together with the relatively short period in which Mr Laviano’s heightened symptoms appeared to have resolved; we could not be satisfied that he did.
Was Mr Laviano suffering from a condition outside the boundaries of normal mental function and behaviour?
In the alternative Mr Laviano contends that within the claim period he suffered “a condition … outside the boundaries of normal mental function and behaviour” per Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 444. In support of this contention he points to examples of his behaviour he contends are “not normal” (see Exhibit A8). These include:
Lodging numerous incident reports throughout the claim period
Meticulously diarising and gathering information about those incidents resulting in the collection of over 200,000 pages
Biting his nails and picking his nose in public
His withdrawal from social and family life
Suicidal thoughts [Mr Laviano testified that in the claim period he had suicidal thoughts on possibly two occasions, which he did not act on.]
Relying on the opinion of Dr Newlyn, Comcare contends that while the evidence indicates that Mr Laviano experienced symptoms of anxiety during the claim period they were nothing more than a normal response to workplace stressors and could not be described as abnormal.
Before considering the submissions made by the parties it is useful to set out in full the oft quoted passage from the judgement of Drummond J in Mooi (at pp 443, 444) concerning the scope of the definition of “disease”:
[I]in my opinion, the expressions used in the Safety Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to “injuries” compensable under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. [emphasis added]
His Honour went on to distinguish between:
[C]linically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances…
and emphasised that it was only behaviour that fell within the first of these two categories that was compensable.
In our view it is a misreading of Mooi to suggest that the above passages stand for the proposition that any unusual behaviour or any change in a person’s behaviour constitutes an ailment for the purpose of the Act. The behaviour must be “clinically significant”.
While we accept there were some changes in Mr Laviano’s behaviour throughout the claim period as demonstrated by, for example, his fixation with workplace issues, reduced social interaction and experiencing intermittent symptoms of depression and anxiety, these changes must be assessed in the context of a stressful work environment. Assessed in that context we are not persuaded that Mr Laviano’s behaviour could be described as falling outside the range of behaviour a person unaffected by mental disease or illness might be expected to exhibit. Apart from Dr Dawes none of the medical experts who assessed Mr Laviano have suggested that those aspects of Mr Laviano’s behaviour, or other behaviours such as his habit of picking his nose in public, biting his nails and lodging numerous incident reports, were an indicator of mental illness or clinically significant.
Nonetheless as the clinical notes reveal, there were periods where Mr Laviano reported heightened symptoms, particularly of anxiety. Of these the period spanning late 2008/early 2009, is probably the most significant. The records reveal that between 2 October 2008 and 8 March 2009 Mr Laviano: saw his doctors on 23 occasions; reported feeling depressed and/or anxious during 50 per cent of those consultations; was certified unfit for work on account of psychiatric symptoms on five occasions, for a total of 13 days. (On some of those days Mr Laviano was also certified unfit for work on account of concurrent physical medical conditions.) Towards the end of this period Dr Kirby made a diagnosis of anxiety disorder (acute).
The notes also reveal that Mr Laviano’s symptoms had apparently resolved by the start of April 2009 without pharmacological treatment or psychiatric intervention. Apart from those periods where he was certified unfit for work, Mr Laviano continued to work at the Ombudsman and drive taxis on the weekends. He made no further reports of anxiety type symptoms until mid-August 2009.
It is apparent that this was a particularly stressful period for Mr Laviano: he was in dispute with his employers about a number of matters including what constituted suitable duties given his claimed physical disabilities (see for example, Exhibit R3: clinical notes 27 January, 28 February 2009). It is within that context that the assessment of whether his behaviour could be described as clinically significant or merely unusual must be undertaken.
In making that assessment it matters not that Mr Laviano’s symptoms of anxiety and depression were relatively short lived or not particularly severe. The definition of “ailment” catches any mental ailment and, as “the whole range of … mental illnesses from major to minor ones” per Drummond J in Mooi at 443.
The task of deciding whether in late 2008/early 2009 Mr Laviano was experiencing clinically significant symptoms of anxiety and/or depression is not an easy one given the passage of time and the quality of the contemporaneous evidence. It is also made difficult because it is not altogether clear from the available material on what basis Dr Kirby concluded that Mr Laviano was suffering from an acute anxiety disorder. It is further complicated because self-evidently there is no clear dividing line between clinically significant behaviour and unusual behaviour that falls within the range of behaviours a person unaffected by mental illness might be expected to exhibit in comparable circumstances. That determination turns on matters of fact and degree and is inherently subjective.
While Dr Kirby made a diagnosis of a psychiatric disorder he did not consider Mr Laviano’s condition serious enough to warrant a referral to a psychiatrist or medication. Nor did any of the other doctors who saw Mr Laviano in this period consider such intervention was warranted. While the considerations are finely balanced, that evidence coupled with the evidence about Mr Laviano’s functional capacity, leads us to conclude that Mr Laviano was not suffering from a mental ailment within the Mooi sense in the period late 2008/early 2009.
We therefore find that Mr Laviano was not suffering from a condition outside the boundaries of normal mental function and behaviour during the claim period.
CONCLUSION
Given our finding that Mr Laviano was not suffering from a diagnosed psychiatric condition or a condition outside “the bounds of normal mental function and behaviour”, at any time within the claim period, we must affirm the decision under review.
I certify that the preceding 73 (seventy three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr Alexander, Member.
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Associate
Dated 16 April 2013
Date(s) of hearing 12 and 13 February 2013 Applicant In person Counsel for the Respondent Brendon Kelly Solicitors for the Respondent Dibbs Barker
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