Humphries and Comcare
[2003] AATA 1294
•18 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1995/804
GENERAL ADMINISTRATIVE DIVISION )
Re NERILLE ANNE HUMPHRIES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr B J McCabe, Senior Member Date18 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .................(Sgd).............................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – whether applicant suffering from a compensable injury – diagnosis – Tribunal not satisfied applicant suffering from a psychiatric condition – no compensable injury – decision affirmed
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
18 December 2003 Mr B J McCabe, Senior Member Introduction
1. Nerilie Humphries worked for the Department of Education, Employment, Training and Youth Affairs (DEET) in Lismore. She claimed she developed a psychiatric condition as a result of her treatment by her employer. She says she had to leave her work and is now permanently incapacitated. Comcare, the respondent, rejected her claim. Comcare says the applicant does not have a psychiatric condition. If she does have a psychiatric condition, Comcare says it is not related to her employment, and has not incapacitated her.
2. For reasons I will explain below, I am not satisfied on the balance of probabilities that Mrs Humphries suffers from a compensable psychiatric condition. That finding obviates the need for me to discuss in detail the conduct of DEET towards the applicant. If I had done so, I would have concluded DEET did not exhibit a great deal of sensitivity towards Mrs Humphries and her special needs (the applicant has a serious visual impairment). But I would not have formed the view its conduct was such as to contribute to the development of a psychiatric condition like that claimed by the applicant.
The Material Before the Tribunal
3. The Tribunal was supplied with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following statements and other material were also tendered in evidence:
§Bundle of Documents referred to by the applicant (Exhibit A1)
§Decisions (Exhibit A2)
§Extract of evidence of chief of Ms Humphries before HREOC (Exhibit A3)
§Medical Certificates from 9 December 1994 to 2 April 1995 (Exhibit A4)
§Report of Dr Hew, dated 29 June 1994 (Exhibit A5)
§Report by Dr Chan, dated 7 February 1992 (Exhibit A6)
§Report by Dr Cappe, dated 3 April 1987 (Exhibit A7)
§Referral to Dr Whitehead by Dr Morrison, 13 September 1995 (Exhibit A8)
§Letter from Dr Whitehead to Dr Morrison, 14 September 1995 (Exhibit A9)
§Work Performance Report and Minute by Mary Maxwell (Exhibit A10)
§Summonsed documents from CRS (Exhibit A11)
§Facsimile from Ms Massey to Mr Humphries, 18 June 1996 (Exhibit A12)
§Undated Statement of Sharon Winter (Exhibit A13)
§Letter to Dr McRae from Professor Lance, 23 April 1987 (Exhibit R1)
§Report by Dr Locke, dated 23 September 1992 (Exhibit R2)
§Referral from Dr Foster to Dr Moore, dated 3 June 1992 (Exhibit R3)
§Report by Dr Moore, dated 19 August 1992 (Exhibit R4)
§Report by Dr Hew, dated 16 February 1995 (Exhibit R5)
§Clinical Notes of Dr Foster (Exhibit R6)
§Clinical Notes of Dr Hew (Exhibit R7)
§Clinical Notes from Lismore Base Hospital (Exhibit R8)
§Formal Advice to Short-term Temporary Employee (Exhibit R9)
§Letter from Ms Gray, dated 30 July 1993 (Exhibit R10)
§File Note by Ms Gray, dated 24 August 1993 (Exhibit R11)
§File Note by Ms Gray, dated 18 November 1993 (Exhibit R12)
§File Note, dated 25 August 1994 (Exhibit R13)
§Clinical Notes (Exhibit R14)
§CRS Lismore – Initial Assessment, dated 16 August 1994 (Exhibit R15)
§Case Notes from CRS Lismore (Exhibit R16)
§Clinical Notes from Lismore Hospital, Maternity Section (Exhibit R17)
§Chronology (Exhibit R18)
§Statement of Rhonda Hawkins, dated 19 March 2003 (Exhibit R19)
§Competency Guidelines (Exhibit R20)
§Resume of Roslyn Mary Irwin (Exhibit R21)
§Letter from Ros Irwin to Peter de Medici, 16 December 1995 (Exhibit R22)
§Statement of A Sue Ryan, dated 14 December 1995 (Exhibit R23)
§Statement of Kathy Gray, dated 12 March 1999 (Exhibit R24)
4. Mrs Humphries gave evidence at the hearing over a number of days. The other witnesses were:
§Ms Martin
§Mr Humphries
§Dr Danesi
§Ms Piterns (nee Maxwell)
§Ms Malcolm
§Dr Varghese
§Ms Massey
§Ms Hawkins
§Ms Nix
§Ms Winter
§Ms Irwin
§Ms Ryan
§Ms Gray
5. The applicant was represented by Mr Mason. Miss Ford represented the respondent.
Summary of the Facts
6. Mrs Humphries was first appointed by DEET in February 1993 as an Administrative Services Officer Class 1 (ASO1) on a temporary basis. The circumstances surrounding her appointment were the subject of some dispute. She was appointed following discussions between her husband and DEET officers about the possibility of employment under a scheme designed to provide opportunities and assistance to visually impaired people. As it turned out, she was not appointed under those arrangements. She received a permanent appointment on 13 October 1993 after an excellent performance in the public service examination. (The circumstances under which she took the test were also the subject of some dispute). She was placed on six months probation. The probationary period was extended in May 1994 for a further six months. The circumstances surrounding the extension of the probation were also considered in some detail in the evidence.
7. DEET was restructured during this period and Mrs Humphries was transferred to the Commonwealth Employment Service (CES) in August 1994. She had earlier taken leave from DEET on the grounds of work-related stress. She had commenced a return to work program but was continuing to take leave on a regular basis. She went on extended compensation leave again in November 1994. She was given three months leave commencing in January 1995. Her employment was terminated on 3 July 1995 on the basis that she did not meet medical fitness requirements.
8. The applicant had a number of complaints about her treatment in the workplace. She said she was not provided with proper equipment and training to assist her with her visual impairment. She had the impression her supervisors doubted the extent of her visual impairment. She said her supervisors expressed their displeasure at the applicant’s husband’s visits to the office at lunchtimes. She said she was given incorrect information about what competencies she was required to meet in order to progress through the public service, and about the circumstances under which she could sit for the public service exams. There was also a good deal of evidence about disputes and misunderstandings with supervisors in relation to day-to-day matters.
9. Mrs Humphries and her husband gave evidence that she was distressed by her experiences in the workplace. Dr Danesi also recounted evidence of the applicant’s fragile state. There was evidence that the applicant was tearful and would sometimes be found sitting in the shower before work, sobbing. She said while she was on leave and subsequently she became concerned about running into work colleagues while in town. She says she increasingly disliked leaving the house on her own. She even avoided attending church out of fear she would meet someone from DEET. She developed insomnia.
10. The applicant has exhibited what Dr Danesi described as “avoidant” behaviour in the past. She had a retail business venture that failed. There was evidence that the applicant avoided the shop for some time as a reaction to the distress of losing her business.
11. The applicant has a number of health problems. Most obviously, she has optic atrophy, a congenital condition that leads to severe visual impairment. Her impairment is progressively worsening. Two of her children have been diagnosed with the condition. She is also obese and has suffered from hypertension.
The Medical Evidence
12. Before any consideration can be given to the question of whether the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act), the Tribunal must address the threshold question of whether the applicant suffers from a disease within the meaning of the Act. That question can only be resolved by examining the medical evidence – especially the evidence of Dr Danesi, a psychiatrist called by the applicant, and Dr Varghese, who was called by the respondent.
13. Drs Danesi and Varghese agreed the applicant does not suffer from post traumatic stress disorder. Dr Danesi said in his report of 21 May 2002 that the applicant suffers from specific phobia. It is not agoraphobia, he explained, because the avoidance behaviour is directed specifically at former work colleagues. He added the applicant might have suffered from an adjustment disorder with mixed mood disturbance in 1993-1995. He doubted she suffered from a significant depressive disorder in 1993-1995.
14. Dr Varghese agreed in his oral evidence that the applicant did not suffer from agoraphobia because she was able to go some places without difficulty. He also said she did not have a significant depressive disorder. (In his earlier written report dated 3 January 2002, Dr Varghese had considered those diagnoses to have some potential, but he changed his mind). He said if there had been an adjustment disorder it would have resolved itself within 6 months. He noted Dr Whitehead, a psychiatrist who saw the applicant on two occasions in 1995, did not see any evidence of a psychiatric condition.
15. The two experts disagreed over whether the applicant satisfied the diagnostic criteria for specific phobia. Dr Varghese said it was unusual for a person in the applicant’s age group to develop a phobic disorder. He also questioned whether it was possible to have a phobic reaction to particular people, as opposed to things. He discussed police officers by way of example in the course of cross-examination. He doubted whether it was possible to develop a phobic reaction to police officers as individuals (although one might have an unreasonable fear of the constabulary). Interestingly, one could have a phobic reaction to police uniforms. He also accepted one could have a phobic reaction to crowds. He said we tend to be phobic about things occurring in the natural world.
16. He also noted the criteria require the patient to have insight into her condition in the sense that she knows the avoidant behaviour is unreasonable. (Dr Varghese sometimes used the word “irrational” instead of “unreasonable” during the course of the evidence but I do not think anything turns on the difference.) The patient must understand she has nothing to fear from the object of the phobia, but avoid the object anyway. Dr Varghese explained during cross-examination (transcript, at 188):
“…a phobia – the person is conscious of the ridiculousness of the behaviour and they want to change it.”
17. If the patient knows or believes the object of the avoidance can harm her in some way and avoids it as a result, that is not a phobia. The belief might be erroneous, but it is not clinical (unless the individual is psychotic).
18. Dr Varghese’s explanation of the concept is consistent with that found in DSM-IV-TR. The manual says at paragraph 300.23:
“Adults with Social Phobia recognise that the fear is excessive or unreasonable…For example, the diagnosis would be Delusional Disorder instead of Social Phobia for an individual who avoids eating in public because of a conviction that he or she will be observed by the police and who does not recognise that this fear is excessive and unreasonable. Moreover, the diagnosis should not be given if the fear is reasonable given the context of the stimuli (eg, fear of being called on in class when unprepared).”
Dr Danesi appeared to accept this requirement as well.
19. I think this is the point where the applicant’s case runs into difficulty. After nearly two weeks of evidence, I am satisfied the applicant thought she had good reason to avoid her former workmates and her place of work. She certainly did not suggest she had no good reason for the avoidant behaviour. In her perception, at least some of the people she worked with at DEET had been awful to her.. She was undoubtedly fearful of running into any of those individuals in Lismore and its environs because of what she perceived were unpleasant experiences at their hands. Those feelings of apprehension may have been kept alive by her involvement in proceedings against DEET before the Tribunal and other bodies. There was a suggestion she was worried that staff members who saw her apparently functioning and well might question the validity of her claim for compensation. I also note there was evidence the applicant avoided her former retail premises in the wake of her failed business venture but there was no suggestion she accepted her behaviour was unreasonable then, either – and perhaps it was not. It was in all likelihood a grief response, and her reaction to DEET was of a kind.
20. Mr Mason for the applicant said there was no direct evidence of Mrs Humphries’ motivation in avoiding her former colleagues and place of work. He said in his written submissions that it was irrational for her to avoid contact. That may or may not be so, but there is no evidence she saw it that way. Mr Mason also noted that neither Dr Varghese or Dr Danesi had specifically asked the applicant whether she thought her fears were reasonable. Both doctors made assumptions from the evidence. Dr Danesi thought she did have insight into her fears because of her avoidance of the church gatherings in particular. But I do not see how that follows.
21. The applicant’s avoidant behaviour cannot be considered in isolation from her visual impairment. With limited eyesight, Mrs Humphries might understandably have felt more threatened and cautious about venturing unaccompanied from her home if she feared meeting former work colleagues. Her visual impairment would make it harder for her to avoid specific situations that she might find stressful. For example, she could not see former workmates coming if she wished to take evasive action. She therefore avoided many situations where she might have an encounter, like her church. That is probably an over-reaction, but it is not unreasonable in the circumstances. In any event, I am satisfied Mrs Humphries thought her behaviour was justified. That is not the mark of a person with social phobia.
22. Her avoidant behaviour in Lismore and its environs can be contrasted with her preparedness to go places in company, or places where she knew she would be safe – like trips to the coast.
23. It is not necessary for me to consider the applicant’s claims about events in her workplace in detail. Whether or not her perceptions of her treatment were accurate – and I have some doubts they were – I am satisfied she regarded them as reasonable and based in fact. There is no evidence or suggestion that she is delusional. To the contrary, she was a lucid and combative witness with a strong sense of grievance.
24. Dr Danesi was asked in cross-examination whether there was any other diagnosis that could be made. He was apparently being asked the question because it was unclear from his earlier report whether he was suggesting the applicant might suffer from an anxiety disorder that is not otherwise specified. He confirmed in his answer (transcript, page 488-489) that he was not suggesting any one diagnosis was applicable to the applicant. Dr Varghese’s evidence was consistent on this point.
Conclusion
25. Mrs Humphries has had a difficult life. In addition to coping with her visual impairment and that of her children, she suffers from a catalogue of other ailments. She has endured business failure and a miscarriage. Her return to paid employment at DEET ended unpleasantly, whatever the reason. She is clearly unhappy with her lot, and she may have some difficulty coping. But I cannot be satisfied she suffered from a psychiatric illness in the wake of her departure from DEET. She does not satisfy the diagnostic criteria applicable to specific phobia, and the medical experts were unable to identify any other diagnosis that might be applicable. Being unhappy with one’s circumstances – even being desperately unhappy – does not amount of itself to a psychiatric disorder.
26. The decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member
Signed: Sarah Oliver
AssociateDates of Hearing 19-21 August 2002; 17-20 March 2003; and
24-25 March 2003
Date of Decision 18 December 2003Counsel for the Applicant Mr Mason
Solicitor for the Applicant Stone & Partners
Counsel for the Respondent Miss Ford
Solicitor for the Respondent Australian Government Solicitor
0
0
0