Hutchinson and Comcare (Compensation) - [2018] AATA 4357

Hutchinson and Comcare (Compensation) [2018] AATA 4357 (23 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5357, 2017/6813
Re:Karen Hutchinson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:23 November 2018
Place:Perth

The Tribunal affirms the decisions the subject of both applications.
.............................[sgd]...........................................
Deputy President Boyle
CATCHWORDS
WORKERS’ COMPENSATION – Commonwealth Employee – Safety, Rehabilitation and Compensation Act – DSM-IV and DSM-V – whether Applicant suffered an injury – whether there is a need for an “accepted injury” – need for claim for the injury to have been made – Posttraumatic Stress Disorder – Major Depressive Disorder – mixed subjective and objective test for traumatic event – whether injury contributed to in a significant degree by employment – contribution of stress of compensation proceedings and other litigation – decisions the subject of both applications affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
(Cth) – s 5A, s 5B, s 5B(1), s 6,

s 6(1)(f), s 14, s 16, s 16(1), s 20, s 54, s 54(1), s 54(2)
Superannuation Act 1990 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Dunstan and Comcare [2012] AATA 567
Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533
Prain v Comcare [2017] FCAFC 143
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Stevens and Repatriation Commission [2017] AATA 2419
Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334
Wiegand v Comcare Australia (2003) 72 ALD
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
REASONS FOR DECISION
Deputy President Boyle
23 November 2018
THE APPLICATIONS

The Applicant seeks the review of two decisions of the Respondent.
Application 2017/5357
The reviewable decision dated 22 August 2017 (R4, T43) affirmed a determination dated 20 July 2017 (R4, T39) that the Applicant had no entitlement to compensation for medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) or to incapacity payments under s 20 of the SRC Act in relation to the Applicant’s accepted “Post Traumatic Stress Disorder” (PTSD) and “Major Depressive Disorder” conditions.
Application 2017/6813
On 1 October 2017 the Applicant wrote to the Respondent claiming compensation for a new injury, namely a “relapse” of her Major Depressive Disorder (R5, T6). The Applicant claimed that she suffered a relapse as a result of a consultation with Dr Catherine Brooker, her treating general practitioner, on 22 May 2017. The Applicant claimed that her new injury arose out of, or in the course of, her employment by virtue of s 6 of the SRC Act, because the injury was sustained while she was “at a place for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 4357
Decision Date: 23 November 2018

CaseChat Overview and Summary

This matter concerned appeals by the Applicant against determinations by the Respondent, Comcare, which rejected her claims for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Applicant had lodged claims for Posttraumatic Stress Disorder (PTSD) and Major Depressive Disorder, stemming from an incident during a workplace training workshop on 5 March 2010, where her director allegedly whispered a death threat to her. While Comcare had previously accepted liability for a major depressive disorder and later for PTSD with a secondary condition of major depressive disorder, the current appeals concerned subsequent claims and the Applicant's ongoing entitlement to compensation.

The central legal issues before the Tribunal were whether the Applicant continued to suffer from an injury, specifically PTSD or Major Depression, for which a claim had been made, and whether liability ought to be accepted for an alleged aggravation of her Major Depressive Disorder. The Tribunal was required to determine if the Applicant's current mental health issues constituted a "relevant injury" as defined by section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and if so, whether her employment contributed to that injury to a significant degree.

The Tribunal's reasoning focused on the medical evidence, particularly reports from Dr Jonathan Spear. While Dr Spear's earlier reports had indicated diagnoses consistent with Major Depressive Disorder and PTSD, his later reports, including a supplementary report, cast doubt on whether the Applicant's symptoms met the diagnostic criteria for Major Depressive Disorder as defined by the DSM. Dr Spear noted that while the Applicant had experienced episodic depressive symptoms, her clinical signs were not consistently consistent with the disorder, and he considered that her Major Depressive Episode may have resolved, being superseded by Agoraphobia. Furthermore, Dr Spear indicated that even if atrial flutter were excluded as a contributor to her agoraphobia, the degree of employment contribution to her mental health condition would be material but not significant, given other personal stressors and her vulnerability.

Ultimately, the Tribunal was not satisfied that the Applicant's current mental health issues were contributed to, to a significant degree, by her employment. Consequently, the Tribunal found that the Applicant did not suffer from a relevant injury, namely PTSD or Major Depression, and therefore affirmed Comcare's decisions to reject the claims.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By determination, dated 9 October 2017 (R5, T7), the Respondent rejected the claim, and by a reconsideration decision, dated 19 October 2017 (R5, T9), the Respondent affirmed that determination.BACKGROUND The Applicant, a 57 year old female, commenced employment with the Respondent as a Claims Service Officer on 22 September 1998. On 16 April 2010 the Applicant took three and a half months long service leave and thereafter annual leave, at half pay. She was scheduled to return to work on 4 January 2011. She says that she was too distressed and agitated to return to work at that time and took sick leave (R4, T6 at 39). On 8 February 2011 the Applicant submitted a Claim for Workers’ Compensation (R4. T4). The claim form, which was in the form approved by the Respondent for the purposes of s 54 of the SRC Act, identified the injury for which compensation was claimed as “Depression & Anxiety”, the date of the injury as 5 March 2010 and the date upon which she first sought medical treatment as being 31 January 2011 (R4, T4 at 20). The Applicant described the circumstances of the injury as follows (R4, T4 at 22):Attending the ‘Respect and Diversity’ training workshop on 5/3/2010. The trainer, Sue Read, was discussing the various forms of bullying that might occur in the workplace. She asked the participants; ‘What might you say to someone you wanted to threaten in the workplace?’ [Applicant’s director], who I was sitting next to said very quietly and directly to me: ‘I’m going to fucking kill you!’I immediately drew the trainer’s attention and she asked [Applicant’s director] to contribute his ‘example’ to the group discussion. After a lengthy pause he repeated the statement he’d made to the entire group. My ‘anxiety’ state was precipitated by this event. By a decision on reconsideration, dated 25 July 2011, the Respondent accepted liability under s 14 of the SRC Act for “major depressive disorder – single episode” with the date of the injury being 31 January 2011 (R4, T11 at 67). On 30 May 2013 the Applicant lodged a Claim for Workers’ Compensation, again on the form approved by the Respondent for workers’ compensation claims, which identified the injury for which liability was claimed as “Post Traumatic Stress Disorder and Major Depression” (R4, T20 at 126). The same workplace event of 5 March 2010 was identified as being the cause of that injury (R4, T20 at 128). By a determination dated 27 September 2013, the Respondent accepted liability for “post traumatic stress disorder with a secondary condition of major depressive disorder” (R4, T23). The Applicant was approved for “Invalidity Retirement” on 17 January 2014 (R4, T24). The Applicant lodged a further claim for compensation, seeking that liability be extended to “agoraphobia” and “binge eating”. By a determination dated 9 February 2016 (R4, T32), that claim was disallowed. The disallowance of that claim is not the subject of either application in the present proceedings. It has been the subject of other proceedings in the Federal Court and is presently the subject of a separate application in the Tribunal.

Evidence

Evidence Before The Court

The hearing, including the examination of Dr Spear, thereafter proceeded without the Applicant.THE EVIDENCE The following documents were tendered at the hearing:·Applicant’s Bundle of Primary Submissions for 2017/5357 & 2017/6813, dated 14 May 2018 (Exhibit A1);·Applicant’s further Submissions, dated 26 July 2017 (Exhibit A2);·Respondent’s Statement of Facts, Issues and Contentions, dated 10 June 2018 (Exhibit R1);·Medical Report of Dr Jonathan Spear, dated 21 February 2018, and referral letter, dated 5 December 2017 (Exhibit R2);·Medical Report of Dr Jonathan Spear, dated 17 August 2018, and referral letter, dated 14 August 2018 (Exhibit R3);·T-Documents relating to 2017/5357 (2 volumes, including T1 to T56) (Exhibit R4);·T-Documents relating to 2017/6813 (including T1 to T10) (Exhibit R5);·Tender Bundle Prepared by Comcare, undated (pages 1-24) (Exhibit 6);·Clinical Notes Prepared by Dr Brendon Dellar, dated 23 June 2017 (Exhibit 7); and·Clinical Notes Prepared by Dr Brendon Dellar, dated 24 June 2017 (Exhibit 8).THE MEDICAL EVIDENCE The first medical report relevant to the present proceedings was that of Dr Brendan Spence, consultant psychiatrist, dated 4 March 2011 (R4, T6) in which he noted:In 2007 the Comcare organization had a new director. Following his appointment Karen was disappointed that she didn’t get a number of promotions that had come up. She complained to the director’s superior…that she was not put on to a job for higher duties by him. She felt that this had upset the director who was her immediate superior. Since this time she has felt undermined by him in the workplace. She says she was moved to an isolated part of the floor away from other people. She was refused payment for reasonable travel allowances as her job entailed frequent trips to Canberra. She felt that he humiliated and ridiculed her in group situations. … At one point in an (sic) harassment and bullying workshop she was seated next to the director of the organization. The facilitator asked for examples of threats and bullying and he leaned across and whispered in her ear “I am going to fucking kill you”. Karen felt extremely anxious and agitated about this perceived threat. She felt there was an unsupportive harassment complaint process within her work. Subsequently she took long service leave in April 2010 for three and a half months. Dr Spence prepared a further report dated 23 March 2011 (R4, T7) which addressed specific questions put to him by the Respondent. The specific questions posed to Dr Spence and his responses are set out below: 4. In your opinion what is the specific diagnosis of the condition from which Ms Hutchinson suffers?…Ms Hutchinson is suffering from DSM IV, moderate episode of Major Depressive Disorder.5. In your opinion when did Ms Hutchinson first suffer from clinical identifiable symptoms of a psychological condition?From her description is (sic) sounds as if Ms Hutchinson was suffering from depressive and anxiety symptoms from 2008 onwards. These became more severe as her perceived harassment and bullying increased.…10. …is there a relationship between Ms Hutchinson’s claimed condition and her Commonwealth employment?…there is a clear relationship between Ms Hutchinson’s Major Depression and her Commonwealth employment….I think the bullying and harassment is the main contributor to her claimed condition of Major Depression.

Decision

Reasons for decision

In light of the numerous other factors identified by Dr Spear, Dr Dellar and the Applicant herself, the Tribunal is not satisfied that the Applicant’s current mental issues are contributed to, to a significant degree, by her employment by the Respondent. CONCLUSION The Tribunal finds that the Applicant does not suffer from a relevant injury, as that term is defined in s 5A of the SRC Act, being PTSD or Major Depression. Accordingly, in answer to the issues as identified in [26] as amended in [35] above, the Tribunal finds:Application 2017/5357Issue: Does the Applicant continue to suffer from an injury for which claim is made, in this case, PTSD and/or Major Depression?Answer: NoApplication 2017/6813Whether liability ought to be accepted under s 14 of the SRC Act with respect to the claimed aggravation of the Applicant’s Major Depressive Disorder? Answer: No. The Tribunal finds that the Applicant does not suffer from a relevant injury, namely, Major Depression. DECISION For the reasons set out above, the Tribunal affirms the decisions the subject of both Applications.

Ratio Decidendi

Legal Principle Established

Dr Spear provided a supplementary report dated 17 August 2018 (R3). In that report Dr Spear largely clarified and confirmed some of what he said in his report of 21 February 2018. He did not examine the Applicant again for the purpose of preparing this supplementary report. He did provide the following clarifications:If atrial flutter was excluded as a contributor to Ms Hutchinson’s agoraphobia condition, I would consider that her degree of employment contribution remained material, but not significant. This is because there are many at least material causes of her mental health condition including personal stressors, and her vulnerability to develop mental health disorder was evident with cognitive distortions.(page 3)…In your report of 21 February 2018, you form the opinion that the applicant would not have satisfied the criteria for major depressive disorder. This appears to be at odds with your earlier report in 2011 which noted:My diagnosis according to DSM-IV TR is as follows:Axis I: Major Depressive disorder, single episode, chronic, atypical features...Symptoms are due to major depressive disorderMs Hutchinson appears to have a Major Depressive Episode, a mental health condition. There was a delay in treatment because of denial. In addition, this is aggravated by an avoidant coping strategy which may also be delaying recovery.In your 2012 report you noted:My diagnosis using DSMIV is now as follows:Axis I: Major depressive disorder in partial remission; Agoraphobia with panic disorderCan you please advise whether you maintain the position that the applicant has never suffered from major depressive disorder? If so, can you please advise what has caused you to change your opinion in your latest report?Ms Hutchinson has had episodic depressive symptoms such as low mood, subjective impaired concentration, suicidal thoughts, fatigue and insomnia. As stated in my report dated 8 February 2018:‘Although she has been diagnosed as having a major depressive disorder her symptoms and history did not appear to be consistent with major depressive disorder as defined by DSM’.At the time of my first assessment in September 2011, I considered that the symptoms of low mood, weight gain, insomnia, social anxiety, intrusive thoughts, lethargy, poor concentration and suicidal thoughts were most likely consistent with resolving major depressive disorder, but her only clinical signs of major depressive disorder were low mood and soft speech.In 2012 and 2018 during her assessments she had no clinical signs of major depressive disorder.In 2012, she had clinical signs of anxiety disorder with a fine tremor, tension and anxious speech.In 2018, she had no observable signs of generalised anxiety disorder, but she did appear emotionally detached, consistent with her complaints of dissociation. She had cognitive distortions including a sense of shame, sense of injustice, projection, catastrophic thinking, ideas of helplessness and ideas of hopelessness.Another explanation would be that she had a major depressive episode, which has resolved, and which has been superseded by Agoraphobia.CONSIDERATION