Hargreaves and Telstra Corporation Limited
[2013] AATA 579
•16 August 2013
[2013] AATA 579
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3899, 2012/4454
Re
Dale Hargreaves
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 16 August 2013 Place Melbourne Application 2011/3899
The reviewable decision made by Telstra on 23 August 2011 that from 9 December 2007 it was not liable to pay compensation to Ms Hargreaves under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), is set aside.
The matter is remitted to Telstra for reconsideration in accordance with the following directions:
(1) during the whole of the period from 9 December 2007 to, and including, the date of this decision, Ms Hargreaves has been totally incapacitated for work as a result of the injury suffered by her on 14 December 2006;
(2) Telstra is liable to pay compensation to Ms Hargreaves in respect of the injury in accordance with section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
(3) Telstra is liable to pay to Ms Hargreaves compensation in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) upon Ms Hargreaves providing proper evidence of the costs incurred by her.
Within 14 days of the date of this decision each party may apply to the Tribunal for further directions in relation to costs. Should such an application not be made, the respondent shall pay the costs of this application incurred by the applicant, such costs to be agreed or taxed in accordance with the Tribunal's Practice Direction.
Application 2012/4454
The reviewable decision made by Telstra on 28 September 2012 that it is not liable to pay to Ms Hargreaves compensation in accordance with section 24 and section 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is affirmed.
........................[sgd]................................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – adjustment disorder with depression and anxiety – whether applicant partially or totally incapacitated for work as a result of injury – whether applicant incurred costs for medical treatment – whether injury resulted in permanent impairment – decision under review in application 2011/3899 set aside – decision under review in application 2012/4454 affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 16, 19, 24, 27
CASES
Hargreaves and Telstra Corporation Limited [2011] AATA 417
REASONS FOR DECISION
INTRODUCTION
Ms Hargreaves commenced work with Telstra Corporation Limited in 1997. In late 2006 she developed an adjustment disorder following an earlier physical injury suffered by her while she was at work. In these reasons I will refer to the adjustment disorder as “the injury”.
Ms Hargreaves sought compensation for the injury in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Telstra denied liability to pay compensation. It was not until 2011 that an application to review Telstra’s decision came before this Tribunal for hearing. The Tribunal decided that Telstra was liable to compensate Ms Hargreaves.
Very shortly after the Tribunal’s decision, Telstra decided that Ms Hargreaves had recovered from the injury in late 2007 and that from that time it was not liable to compensate Ms Hargreaves in respect of her loss of earnings and the medical expenses incurred by her. In this application Ms Hargreaves is seeking a review of Telstra’s decision.
For the reasons which follow Telstra’s decision will be set aside and the matter will be remitted to Telstra for reconsideration in accordance with directions I propose to make.These directions will include that Telstra is liable to compensate Ms Hargreaves for both loss of earnings and medical expenses incurred by her.
Ms Hargreaves also applied to Telstra for compensation on the basis that her injury had resulted in a permanent impairment. Telstra denied this claim and Ms Hargreaves applied for a review of the decision.
For the reasons which follow this decision of Telstra will be affirmed.
EVIDENCE AND FINDING OF FACTS
Unless stated otherwise the following findings of fact are based on the evidence of Ms Hargreaves, including the evidence she gave to the Tribunal in the previous proceedings.[1]
[1] A transcript of evidence in the previous proceedings is Exhibits R25, R26 and R27.
Ms Hargreaves worked continuously for Telstra from 1997 until October 2007. During 2006 she worked from home two days per week.
In August 2006 and in October 2006 she injured her left shoulder while working at home. She subsequently suffered the injury to which I have referred and which has been described as an “adjustment disorder with anxiety and depression secondary to her left shoulder injury to which her employment contributed to a material degree …” [2] In the previous proceedings the Tribunal determined that the date of the injury was 14 December 2006. Further the Tribunal decided that Telstra pay to Ms Hargreaves all medical and related treatment expenses incurred in respect of the injury and weekly payments of compensation in respect of all periods in which her ability to earn was less than her normal weekly earnings.
[2] This was the decision of this Tribunal in a previous application by Ms Hargreaves; see Exhibit R18, p.19.
In October 2007 Ms Hargreaves’ employment was terminated by Telstra.
In late December 2007 Ms Hargreaves met with several associates with whom she had dealings while employed by Telstra. Following this meeting Ms Hargreaves agreed to become a director of Global Software as a Service Pty Ltd which operated a business known as Global SaaS.
Ms Hargreaves does not have a clear recollection of the events of this period. She does recall experiencing “an overwhelming sense of shame, guilt and embarrassment.”[3] At the time she was living in Queensland.
[3] Exhibit A1 para.90.
In about March 2007, Global SaaS opened an office. Ms Hargreaves attended monthly meetings by Skype, discussed strategies, reviewed commercial agreements and tested software. This was not regular work and she did not perform any meaningful work at this time. Ms Hargreaves tried to work to the best of her capacity. She suffered panic attacks and became easily overwhelmed and tearful during meetings. She was not paid for the work she did.
In about November 2008, the board of the company offered Ms Hargreaves an operational role with the business. This role included the management of four staff, although not all of those staff came under Ms Hargreaves’ supervision until January 2009. Ms Hargreaves did not receive payment for this work.[4]
[4] Ms Hargreaves’ evidence that she was not paid is confirmed by a statement of the Mr Langford, a director of Global Software as a Service Pty Ltd – Exhibit A3.
During this time Miss Hargreaves suffered acute anxiety attacks brought on by associations with her previous employment by Telstra. She became increasingly depressed, however she ceased seeing her psychiatrist, her psychologist and her general practitioner. She also ceased taking medication. She said that the reason for this was that she could not afford the expense. She was not receiving any compensation payments at this time.
Ms Hargreaves' feelings of depression worsened in December 2008. Nevertheless she believed she could work and tried hard to do so.
Ms Hargreaves experienced difficulty working with her team at Global SaaS and found it extremely difficult to cope with the information required. In late January 2009, she informed the board of the company that she did not wish to be a manager of the team any longer. From that time she ceased working with the company.
In February 2009 Ms Hargreaves and her son moved to live with her parents on a property in country Victoria. She recommenced taking antidepressant medication and has continued to do so. Since 2009 she has spent almost all of her time living a secluded existence on her parents’ property. She has not been employed and has been supported financially and emotionally by her parents.
In August 2009 Ms Hargreaves and her son moved to a cottage on the property. Her parents have continued to care for her.
In April 2010 Ms Hargreaves came under the care of a psychologist, Dr Uebergang, who she has continued to consult.
Ms Hargreaves describes her condition, since mid-2010 to the present, as follows:
I no longer know who I am. I am unable to account for a lot of my time. I exist. I have no context. I sleep when I can, seldom for longer than 4 hours at a time. I tend my animals 2 lorikeets, 2 cats and a dog. I help my parents with their animals and their projects on the property. I do killer and super Sudoku to puzzles. I read but retain little.
I do not have television, radio, phone or computer. I am heavily reliant on my parents for everything from communications to transport to meals, for support, conversation and company. During my periods of deep depression they intervene with authorities, such as Medicare, Centrelink, my bank etc. On the occasions that I physically overextend they provide me with more personal assistance in bathing or dressing.
I have rarely opened the curtains in my 3 years in the cottage and not at all since my name appeared in the media in July 2011.
I go to the grocery store most Saturdays for an hour with my stepfather. I see my GP as required. I attend quarterly Centrelink interviews. I see my Psychologist about every 3 weeks. I have gone with my mum’s partner on occasion to their friends’ property to collect wood for the fire or to make bird toys with. I do not socialise.[5]
[5] Exhibit A1 paras 105-108.
On 11 July 2011 Telstra decided that from 9 December 2007 it was not liable to pay medical and related treatment expenses and weekly payments of compensation in respect of the injury.[6] On review by Telstra this decision was affirmed on the basis that by 9 December 2007 the injury had resolved.[7]
PART A: CLAIM FOR LOSS OF EARNINGS AND MEDICAL EXPENSES
[6] Exhibit R19.
[7] Exhibit R21.
LEGISLATIVE BACKGROUND
Section 19(2) of the Act provides for Telstra to pay compensation for injuries resulting in incapacity for work at a rate determined in accordance with a formula set out in the section.
Section 16(1) provides for payment of medical expenses as follows:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
ISSUES FOR DETERMINATION
The injury in respect of which Ms Hargreaves seeks compensation in this application is the same injury as that in respect of which the Tribunal made a decision on 17 June 2011.[8]
[8] Exhibit R18.
On 17 June 2011 the Tribunal decided in application 2008/4598:
1. Ms Hargreaves suffered incapacity and impairment as a result of injury identified as adjustment disorder with anxiety and depression secondary to her left shoulder injury to which her employment contributed to a material degree, first treated on 14 December 2006, which gives rise to entitlement to compensation pursuant to the SRC Act.
2. The respondent shall pay to Ms Hargreaves:
(a) The costs of all medical and related treatment expenses incurred in respect of the injury pursuant to s 16 of the SRC Act.
(b) Weekly payments of compensation in respect of incapacity for work for all periods when Ms Hargreaves’ ability to earn was less than the normal weekly earnings pursuant to s 19 of the SRC Act.
3. The respondent shall pay Ms Hargreaves’ costs and disbursements in respect of these proceedings pursuant to s 67 of the SRC Act.[9]
[9] Hargreaves and Telstra Corporation Limited [2011] AATA 417.
The reviewable decision in the matter before me, which was made on 23 August 2011, affirmed a decision made 11 July 2011 that “from 9 December 2007 to the present, …[Ms Hargreaves is] not entitled to compensation for medical expenses and incapacity for work under sections 16 and 19 of the SRC Act respectively.”[10] The review officer decided that Ms Hargreaves did not continue to suffer from the psychological injury after 9 December 2007. Both the maker of the initial determination and the review officer accepted the opinion of Dr Reddan that the injury had “resolved” in the second half of 2007.
[10] Exhibit R19.
The decision that the injury had resolved by 9 December 2007 was contrary to the decision of this Tribunal made on 17 June 2011 and contrary to the argument put on behalf of Telstra at the hearing which preceded that decision. In his Reasons for Decision, Senior Member Friedman said that “there was no dispute that Ms Hargreaves suffers from a psychiatric ailment to which her employment contributed to a material degree …”[11] [emphasis added].
[11] Exhibit R18 p.5.
It is clear from the submissions made by Ms Hargreaves' Counsel that she was alleging that she continued to suffer from a psychiatric condition as at 6 June 2011, being the last day of the hearing. The issue was whether the injury was compensable under the Act. Counsel for Telstra agreed with the identification of the issues by Counsel for Ms Hargreaves.[12] There was no suggestion that Ms Hargreaves was not suffering from a psychiatric condition at the time of the hearing.
[12] Exhibit R25 p.10.
On a fair reading of the Tribunal’s previous decision and the reasons given, it was not open for Telstra to determine that Ms Hargreaves' injury had “resolved’ by 9 December 2007 or by any date on or before 17 June 2011, the date of the Tribunal’s decision.
In deciding this application I have taken the decision under review to be a decision that:
(a)since 9 December 2007 Ms Hargreaves has not been incapacitated for work as a result of the injury;
(b)since 9 December 2007 Ms Hargreaves has not incurred costs for medical treatment obtained in relation to the injury.
The following issues arise for determination.
(1)Since 9 December 2007, has Ms Hargreaves been partially or totally incapacitated for work as a result of the injury, and if so, for what period or periods?
(2)Since 9 December 2007, has Ms Hargreaves incurred any costs for medical treatment in relation to the injury that was reasonable for her to obtain in the circumstances?
CONSIDERATION OF THE ISSUES
Issue 1: Since 9 December 2007, has Ms Hargreaves been partially or totally incapacitated for work as a result of the injury, and if so, for what period or periods?
Telstra concedes that Ms Hargreaves is incapacitated for work at present and that this situation is unlikely to change unless she receives further treatment. However Telstra says that such incapacity as she has suffered since 9 December 2007 has been caused by factors which are not the result of her injury. Telstra does not concede that Ms Hargreaves has been totally incapacitated for work during the whole of this time.
Report of Dr Cross, Registrar
Ms Hargreaves commenced consulting Dr Cross in January 2007. In a report dated 13 June 2007, Dr Cross stated her opinion that the deterioration in Ms Hargreaves’ mental health was “due largely to stressors in the workplace environment.”[13]
[13] Exhibit R10.
Report of Dr Varghese, Psychiatrist
Dr Varghese assessed Ms Hargreaves on behalf of Telstra in August 2007, at which time she was living in Queensland. In his opinion, at that time Ms Hargreaves was suffering from Adjustment Disorder with mixed Anxiety and Depressed Mood to which “work related factors” contributed.[14]
[14] Exhibit R11.
Report of Dr Apel, Psychiatrist
Ms Hargreaves was assessed by Dr Apel in February 2008 at the request of her solicitors. He provided a report dated 23 June 2008.[15]
[15] Exhibit R14.
At the time of the assessment Dr Apel diagnosed Ms Hargreaves as suffering Adjustment Disorder with Depressed and Anxious Mood. As to the cause of the development of Ms Hargreaves' condition, Dr Apel reported that “I would see her pre-existing personality vulnerabilities as being one-third responsible for developing her psychiatric condition. The other two thirds are the shoulder injury itself, and her subsequent pain and disability, and the management response to this.”[16]
[16] Exhibit R14 p.9.
Report of Dr Reddan, Consultant Psychiatrist
Dr Reddan assessed Ms Hargreaves in December 2008 at the request of the solicitors for Telstra. He provided a report dated 15 February 2009.[17]
[17] Exhibit R16.
In the opinion of Dr Reddan, it was likely that in the early part of 2007 Ms Hargreaves had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood to which work-related factors made a major contribution. However it was his view that at the time of the assessment Ms Hargreaves was not suffering from a diagnosable condition and the effects of any work-related condition had ceased.[18]
[18] Exhibit R16 p.12.
Reports of Dr Uebergang, Forensic & Counselling Psychologist
Shortly after Ms Hargreaves moved to Victoria in early 2010 she consulted Dr Uebergang. Dr Uebergang has provided two reports, dated 16 November 2010[19] and 13 July 2012[20] respectively.
[19] Exhibit A6.
[20] Exhibit A5.
In the opinion of Dr Uebergang, since November 2006 Ms Hargreaves has suffered from Post Traumatic Stress Disorder caused by her employment, and has been totally incapacitated for employment continuously from that time. In her opinion it was unlikely that Ms Hargreaves will be unable to gain any form of meaningful employment suitable to her skills and qualifications in the future.[21]
[21]Exhibit A5.
In Progress Notes dated 9 August 2010[22], Dr Uebergang recorded:
Still very shaky and confidence low but reports that she is not as bad as years past.
[22] Exhibit R2.
Evidence of Dr Strauss, Consultant & Occupational Psychiatrist
Dr Strauss assessed Ms Hargreaves at the request of her solicitors in February 2012. He provided a report dated 22 February 2012[23] and gave evidence.
[23] Exhibit A4.
In his report Dr Strauss expressed the following opinion:
This woman has suffered from anxiety and depression for some years and there is significant evidence to suggest that her adjustment disorder commenced approximately five years ago while she was working for Telstra.
She suffered from some physical injuries and thereafter there were alleged ongoing conflicts between the worker and her employer in relation to her return to work plan and in relation to compensation issues.
The situation climaxed in 2006 and she has not worked since.
I note that her condition has run a fluctuating course over the years but in recent times particularly since she has moved to Victoria, she has continued to suffer from a significant psychological decompensation.
…
Mention has been made of dependency traits and certainly this woman may have been vulnerable to the development of psychiatric problems before 2005 and certainly her ability to cope with compensation issues may have been determined by her personality type, but I can only conclude that since her conflicts at work her psychiatric illness has commenced. No other factors are apparent in this case.
Therefore I have connected her psychiatric condition to her employment and I see no reason why her psychiatric condition is still not related to her employment.
…
This woman is unable to work and I believe that currently she is totally incapacitated. Taking all factors into consideration I do not believe that she has been capable of ongoing paid employment since at least December 2007.[24]
[24] Exhibit A4, pp 13-14.
When he gave evidence Dr Strauss confirmed the opinion set out above. He agreed that Ms Hargreaves was “overwhelmed by legal matters.”
Evidence of Associate Professor Mendelson, Consultant Psychiatrist and Consultant in Pain Medicine
Professor Mendelson assessed Ms Hargreaves in 2012 at the request of the solicitor for Telstra. He provided a report dated 14 May 2012[25] and gave evidence.
[25] Exhibit R1.
In his report Professor Mendelson stated:
I agree with Dr Reddan that Miss Hargreaves probably did have clinically significant depressive and anxiety symptoms during the early part of 2007, and that the diagnosis of an Adjustment Disorder With Mixed Anxiety and Depressed Mood would have been appropriate at that time. It would appear that once Miss Hargreaves’s employment with Telstra was terminated in October 2007 and she received a redundancy package there was a gradual improvement in her emotional state, so that by the time she was assessed by Dr Reddan in early December 2008 she was working full time and no longer had the symptoms of a diagnosable mental disorder.
…
It would appear that due to a subsequent disappointment in relation to the company that she was involved in setting up there had been a recurrence of emotional symptoms, and Miss Hargreaves decided to move to Victoria and to live on the property owned by her mother and stepfather.
In my opinion at present Miss Hargreaves shows the characteristics of what has been termed “chronic embitterment”, the features of which have been described as anger, rumination, helplessness and appraisals of injustice. Chronic embitterment is not a diagnosis, but rather a specific type of an emotional response to a particular type of an adverse life experience.
…
While I do not have adequate information on which I could base a definitive opinion concerning Miss Hargreaves’s work capacity as at 9 December 2007, the information available to me strongly suggests that at this time she did have the capacity to perform her usual work duties for between 20 and 35 hours per week.[26]
In his oral evidence Professor Mendelson said that the condition from which Ms Hargreaves now suffers would qualify as a diagnosis of an Adjustment Disorder with Anxiety.[27]
[26] Exhibit R1 pp 17-19.
[27] Transcript 25/06/13 p.8.
When he gave evidence Professor Mendelson confirmed the opinions he had expressed in his report. Whilst he maintained his view that Ms Hargreaves did have capacity to work in December 2007, he was also of the opinion that “because the venture in which he was involved apparently had not been successful this had caused a recurrence or aggravation of the emotional difficulty she was experiencing and that really had continued up until the time that [he] saw her.”[28]
[28] Transcript 25/06/13 p.6.
Counsel for Telstra argued that I should accept the opinions of Professor Mendelson and Dr Varghese that factors such as the failure of Global SaaS and Ms Hargreaves' sense of loss of “family” when she ceased working for Telstra, caused her incapacity for work after 9 December 2007. It was put further that Ms Hargreaves' dissatisfaction with the method by which her claim for compensation has been dealt with contributed to her present condition.
As Telstra does not dispute that Ms Hargreaves was incapacitated for work until 9 December 2007, I have to be satisfied that her condition has changed such that any subsequent incapacity was not “a result of” [29] her compensable psychiatric injury.
[29] Section 19(1) of the Act.
Having considered the evidence of Ms Hargreaves and that of the health professionals I am satisfied that since 9 December 2007 and at the date of this decision, Ms Hargreaves has been, and is, totally incapacitated for work by reason of the injury suffered by her on 14 December 2006. In reaching this conclusion I have preferred the opinion of Dr Strauss to that of Professor Mendelson and Dr Vargherse. Professor Mendelson was under the misapprehension that Global SaaS, the business in which Ms Hargreaves was involved, had failed.When he gave evidence Professor Mendelson agreed that what was being put to him in relation to Ms Hargreaves’ inability to continue working at Global SaaS was different to what was in the contemporaneous reports on which he had relied and obviously could not be reconciled.[30]
[30] Transcript 25/06/13 p.14.
I accept Ms Hargreaves' evidence that when she saw Dr Reddan she was continuing to suffer panic attacks and told him of these incidents. I am satisfied also that when she attended Dr Reddan she gave him notes which she had made indicating that she was continuing to experience anxiety. I accept her evidence that these notes were an accurate record of her experiences at the time.
I have taken into account that the opinion of Dr Strauss is supported by Dr Uebergang, although her diagnosis differs from his. Dr Uebergang shares the view of Dr Strauss that Ms Hargreaves has been totally incapacitated for work since December 2007 and earlier. Dr Uebergang has the advantage of extensive consultations with Ms Hargreaves over an extended period of time.
I am satisfied that as at 16 August 2013, being the date of my decision, and continuously since 9 December 2007, Ms Hargreaves has been totally incapacitated for work as a result of the injury suffered by her on 14 December 2006.
Issue 2: Since 9 December 2007, has Ms Hargreaves incurred any costs for medical treatment in relation to the injury that was reasonable for her to obtain in the circumstances?
As I am satisfied that Ms Hargreaves has been totally incapacitated as a result of her injury, I am satisfied that she is entitled to be compensated for the cost of medical treatment obtained by her in accordance with the provisions of section 16 of the Act. I do not have evidence before me to determine precisely the nature or amount of those costs, other than to say that they are the costs of treatment for the condition of anxiety disorder with anxiety and depression. I intend remitting the matter to Telstra to determine the precise amount payable on submission of the appropriate evidence of the costs by Ms Hargreaves.
PART B: PERMANENT IMPAIRMENT CLAIM
LEGISLATIVE BACKGROUND
Section 24(1) of the Act provides:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
In section 4(1) permanent is defined to mean “likely to continue indefinitely”. Section 4(1) also defines impairment as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
Section 24(2) provides:
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
Section 24(5) provides:
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
Section 24(6) provides:
(6) The degree of permanent impairment shall be expressed as a percentage.
ISSUES FOR DETERMINATION
Two issues arise for determination.
(1)Has the injury from which Ms Hargreaves suffers resulted in a “permanent impairment”?
(2)If so, what is the degree of permanent impairment?
CONSIDERATION OF THE ISSUES
Issue 1: Has the injury from which Ms Hargreaves suffers resulted in a “permanent impairment”?
The condition from which Ms Hargreaves suffers is a malfunction of a bodily system, namely her mental functioning. The question remaining is whether this impairment is “likely to continue indefinitely”?
Ms Hargreaves has suffered from the impairment continuously since 14 December 2006, a period of almost seven years.
The evidence as to the likelihood of improvement in Ms Hargreaves' condition and whether she has undertaken all reasonable rehabilitative treatment, varies.
The opinion of Dr Strauss
In the opinion of Dr Strauss, Ms Hargreaves' confidence is very low and he does not believe that she will return to paid employment in the foreseeable future. Further in his report, which was written in February 2012[31] he expressed the view that she should continue to see her psychologist for at least the next 12 months and continue to take her anti-depressant medication. Dr Strauss did not change his opinion when giving evidence.
[31] Exhibit A4.
The opinion of Dr Uebergang
In July 2012 Dr Uebergang completed a report as part of Ms Hargreaves' application for compensation for permanent impairment.[32] In her opinion Ms Hargreaves' condition, which she diagnosed as Post Traumatic Stress Disorder, is a permanent disability and its symptoms will increase and decrease over time; the condition is not stabilised and will need “many months or years of intensive therapy to stabilise.”
[32] Exhibit A5.
The opinion of Professor Mendelson
In May 2012 Professor Mendelson reported:
I anticipate that the finalisation of all litigation will have a beneficial effect on Miss Hargreaves’s emotional symptoms, and that in due course she will be able to return to gainful employment in a position that is free of significant responsibilities and time pressure, with a supportive employer, initially on a part-time basis.
…
In my opinion it is not inappropriate that she continue taking venlafaxine or a similar medication until litigation is finalised. I anticipate that once the stressor of litigation is over it will be possible for Miss Hargreaves to be gradually weaned off medication, but she might require some medication indefinitely, for example an hypnotic, as she did prior to the events of 2006.
She also could benefit from insight-oriented psychotherapy with a consultant psychiatrist, addressing the various personality vulnerabilities that have been identified in the psychiatric reports to which I referred above. This type of psychotherapy requires specialised training and expertise, and of course also requires the patient to be motivated to become involved in what can be a prolonged and emotionally painful process.[33]
When he gave evidence Professor Mendelson confirmed the view set out above. He said that he did not believe Ms Hargreaves was able to engage in gainful employment at the time he assessed her in April 2012 because “she was very much immersed in the litigation process”.[34]
[33] Exhibit R1 pp.18-20.
[34] Transcript 25/06/2013 p.6.
Consideration of the issue
Although I have not accepted the view of Professor Mendelson that Ms Hargreaves was fit to work in December 2007, I prefer his opinion that the completion of these proceedings will be of considerable benefit to Ms Hargreaves and that it is likely that her condition will substantially improve after that time. Professor Mendelson is eminently qualified to express this opinion. His view is supported by the evidence of Dr Strauss that Ms Hargreaves told him that “she gets overwhelmed by the compensation process and she gets very anxious at times as a result.”[35] It was clear from Ms Hargreaves' demeanour when she gave evidence that she continues to find the process extremely distressing and that she feels that she has been badly treated by it.
[35] Exhibit A4 p.9.
I have taken into account also that Dr Uebergang expressed the opinion that with appropriate counselling Ms Hargreaves would be capable of holding a position with another organization.
Taking into account all of the evidence, I am not satisfied that Ms Hargreaves has undertaken all reasonable rehabilitative treatment. I do not intend to be critical of Ms Hargreaves in any way in this regard. I accept that she wishes to be able to return to gainful employment and that her inability to do so has been a result of factors beyond her control. I accept the view of Professor Mendelson that Ms Hargreaves may benefit from psychotherapy by a consultant psychiatrist. In reaching this conclusion I have been mindful that Ms Hargreaves has limited her contact with others by seeking the support of those around her at the property in country Victoria. This is understandable, particularly as she has been denied compensation for her injury for more than five years, during part of which she ceased treatment as she could not afford it.
I am satisfied that with the proper support, including financial support, Ms Hargreaves is likely to improve and will be in a position to undertake further rehabilitative treatment.
For these reasons I am not satisfied that her employment by Telstra has resulted in a permanent impairment. Of course, it is open to Ms Hargreaves to apply again for compensation for permanent impairment should her circumstances change.
Issue 2: What is the degree of permanent impairment?
This issue does not arise for determination.
CONCLUSION IN RESPECT OF EACH APPLICATION
Application 2011/3899
The reviewable decision made by Telstra on 23 August 2011 that from 9 December 2007 it was not liable to pay compensation to Ms Hargreaves under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), will be set aside.
The matter will be remitted to Telstra for reconsideration in accordance with the following directions:
(1)during the whole of the period from 9 December 2007 to, and including, the date of this decision, Ms Hargreaves has been totally incapacitated for work as a result of the injury suffered by her on 14 December 2006;
(2)Telstra is liable to pay compensation to Ms Hargreaves in respect of the injury in accordance with section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
(3)Telstra is liable to pay to Ms Hargreaves compensation in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) upon Ms Hargreaves providing proper evidence of the costs incurred by her.
Within 14 days of the date of this decision each party may apply to the Tribunal for further directions in relation to costs. Should such an application not be made, the respondent shall pay the costs of this application incurred by the applicant, such costs to be agreed or taxed in accordance with the Tribunal's Practice Direction.
Application 2012/4454
The reviewable decision made by Telstra on 28 September 2012 that it is not liable to pay to Ms Hargreaves compensation in accordance with section 24 and section 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) will be affirmed.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
..........................[sgd]..............................................
Associate
Dated 16 August 2013
Date(s) of hearing 21, 24 and 25 June 2013 Counsel for the Applicant Mr M Carey Solicitors for the Applicant Slater & Gordon Lawyers Counsel for the Respondent Mr J Wallace Solicitors for the Respondent Australian Government Solicitor