Hutchison and Comcare

[2008] AATA 61

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 61

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N200601229

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEANNE HUTCHISON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date23 January 2008

PlaceNewcastle

Decision

1)    The reviewable decision of the Respondent, dated 1 September 2006 determining that Ms Hutchison’s “depressive disorder” was not work related and was not contributed to in a material degree by her employment, is set aside.

2) In substitution for the decision set aside, it is decided that between May 2005 and November 2005 Ms Hutchison suffered an injury as defined in section 4 of the Act in that she suffered an ailment that was contributed to in a material degree by her employment.

3) Ms Hutchison is entitled to compensation pursuant to section 14 of the Act.

4) The decision on the matter of costs has been reserved. The parties have 14 days from the date of this decision to advise the Tribunal if this wish to put further argument. If they do not, the Tribunal will make an order pursuant to section 67(8) of the Act that the Respondent pay Ms Hutchison’s costs.

.................[sgd]....................

Dr I Alexander, Member

CATCHWORDS

COMPENSATION - Safety, Rehabilitation and Compensation Act – incapacity or impairment resulting in Comcare liability – psychiatric disease - onset of disease – entitlement to workers’ compensation – material contribution where more than one cause can be identified.

Canute v Comcare (2006) 226 CLR 535

Comcare v Mooi (1996) 69 FCR 439

Comcare v Sahu-Khan (2007) 156 FCR 536

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Wiegand v Comcare Australia [2002] FCA 1646

State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249

Safety, Rehabilitation and Compensation Act 1988

Workers’ Compensation Act 1987

REASONS FOR DECISION

23 January 2008	Dr I Alexander, Member
INTRODUCTION

1.Ms Hutchison has been an employee of the Australian Taxation Office (‘the ATO’) in Newcastle since 1985.

2.Ms Hutchison is married to Robert Haberl who was also employed by the ATO in Newcastle until he was medically retired in January 2005. The couple had met while working for the ATO and had married in 1995.

3.On 13 February 2006, Ms Hutchison submitted a workers’ compensation claim pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) on the grounds that she had suffered an injury as defined in section 4 of the Act, namely major depression.

4.Dr Kumar, General Practitioner (‘GP’), supported that claim with a medical certificate indicating a diagnosis of major depression.

5.In a determination dated 16 March 2006 Comcare denied liability for Ms Hutchison’s “depressive disorder” on the grounds that her condition was not work related and not contributed to in a material degree by her employment.

6.After reconsideration, Comcare affirmed the original decision in a determination dated 1 September 2006 and it is this decision that is the subject of review by the Administrative Appeals Tribunal.

ISSUES

(i) Did Ms Hutchison suffer from an injury that had resulted in incapacity for work or impairment for which Comcare may have been liable to pay compensation pursuant to section 14 of the Act?

7.Section 4 of the Act determines that an injury can mean a disease suffered by an employee.

8.It is common ground that the nature of the psychological condition claimed by Ms Hutchison was best described as a disease. Therefore, the relevant question is, did Ms Hutchison suffer from a disease at the time of her claim?

9.At the hearing both parties agreed that the weight of medical evidence pointed to a conclusion that at the time of the claim Ms Hutchison did suffer from a condition that could be described as a psychiatric disease.

10.In the course of two years, from November 2005 to October 2007, no less than eight psychiatrists and one psychologist had seen Ms Hutchison. This plethora of consultations yielded three different psychiatric diagnoses.

11.Although there was no agreement as to the specific diagnosis of Ms Hutchison’s condition, there can be no dispute that at the time of her claim Ms Hutchison did suffer from a psychiatric disease and therefore that she did suffer from an injury that may have been compensable under the Act.

12.I note that there has been no agreement as to the time of onset of the psychiatric disease.

(ii) What was the time of onset of the psychiatric disease?

13.In order to address this issue, it is necessary to consider the chronology of events and the medical evidence.

14.In about May 2003 Ms Hutchison suffered from a range of symptoms and consulted her GP, Dr Kumar, who diagnosed depression and prescribed antidepressant medication.

15.It is relevant that in February 2003 her husband, Mr Haberl, who worked in a different section of the ATO in the Newcastle office, began to have significant difficulties at work. These difficulties started following a complaint regarding an alleged breach of the code of conduct.

16.Mr Haberl was subjected to formal counselling but appealed on the grounds that the process had been inappropriate and that he had been denied natural justice.

17.In April 2003, Ms Hutchison attended a mediation session that involved her husband, his team leader and area manager. This mediation proved to be unsuccessful and Ms Hutchison claimed both in her written and oral evidence that that the experience had caused her significant distress.

18.During the remainder of 2003 and early 2004 the various matters with respect to Mr Haberl’s difficulties remained unresolved and he spent considerable time on sick leave.

19.In March 2004 Mr Haberl lodged a formal complaint against his team leader and area manager.

20.The situation deteriorated further in April 2004 when another complaint was made against Mr Haberl for allegedly swearing at his human resources case manager during a heated telephone conversation.

21.Ms Hutchison overheard this conversation, and in the course of the investigation of the complaint by a senior ATO officer, she was interviewed together with her husband. Subsequently, Ms Hutchison was told that her version of the incident was not believed, an outcome that she had found very distressing and that she believed challenged her credibility and integrity.

22.The matters with regard to Mr Haberl finally appeared to be settled in January 2005 when he retired from the ATO on medical grounds.

23.It is clear that this period of conflict caused Ms Hutchison significant distress both at home and at work.

24.Ms Hutchison’s difficulties were further complicated by the fact that, in September 2004, she was diagnosed as suffering from coeliac disease.

25.Despite the various difficulties confronted by Ms Hutchison during this time she continued to work with no apparent evidence of any effect on her performance.

26.In her oral evidence, Ms Hutchison stated that when her husband retired in January 2005 she had felt a sense of relief and had looked forward to returning to work after her January holidays with renewed enthusiasm and an opportunity to focus on her career.

27.In March 2005, Ms Hutchison applied for, and was successful in gaining a promotion to a position as acting Executive Level 2 (‘EL2’) Project Officer.

28.Ms Hutchison started in this position in May 2005. The position was based in Newcastle however for the first two to three months she was required to travel to other tax offices and was on the road for three out of every four weeks. In her oral evidence, Ms Hutchison indicated that she coped well with the travelling, was enjoying her work and was generally feeling well and free of symptoms.

29.However, as a consequence of her promotion to the senior management team, Ms Hutchison had increased contact with a number of senior officers who had been directly involved in her husband’s difficulties. This contact occurred mainly at meetings of EL2 managers that were held weekly.

30.It is also relevant that in July 2005 Mr Haberl renewed his dealings with the ATO by requesting a review of the investigation into his prior complaint. Furthermore in September 2005 he lodged another formal complaint with respect to the actions of his previous team leader.

31.Subsequently Mr Haberl lodged complaints with the Federal Privacy Commissioner and the Human Rights and Equal Opportunity Commission (‘HREOC’).

32.In her evidence, Ms Hutchison claimed that during this period she began to have increasing difficulties with work and that by November 2005 her symptoms had increased to such an extent that Dr Kumar referred her to Dr Miller, consultant psychiatrist.

33.In a brief letter, dated 11 November 2005, Dr Miller noted that Ms Hutchison had become “increasingly distressed about conflict at her work and at home” and that she had “continued contact with the people who dealt with her husband unjustly and is [sic] also having to contend with her husband who is focussed on some form of retribution or clearing of his name”.

34.Dr Miller made no diagnosis but indicated that Ms Hutchison had described some depressive symptoms and that he had suggested sessions of psychotherapy and the continuation of the antidepressant medication.

35.In January 2006, Dr Kumar also referred Ms Hutchison to a psychologist, Mr Peters, who she continues to see on a regular basis.

36.In mid January 2006, Ms Hutchison went on sick leave and has remained on various forms of leave since that time.

37.On 13 February 2006, Ms Hutchison submitted a claim for workers’ compensation. The claim was rejected on 16 March 2006.

38.Ms Hutchison submitted a request for reconsideration of the claim on 11 April 2006 with supporting documents from Dr Kumar and Mr Peters.

39.In a report requested by Comcare and dated 25 May 2006, Mr Peters, diagnosed major depression. In answering a question posed by Comcare as to whether Ms Hutchison suffered from a pre-existing condition Mr Peter’s response was somewhat equivocal. However, he did refer to Ms Hutchison’s successful work history as supporting the notion that there was no pre-existing condition and the tenor of the remainder of his report pointed to a conclusion that her diagnosable psychiatric condition had its onset in latter half of 2005.

40.In July 2006 Comcare referred Ms Hutchison to Dr Wilmot, consultant psychiatrist. In a report dated 19 July 2006, Dr Wilmot diagnosed chronic adjustment disorder with mixed anxiety and depressed mood as per the DSM-IV psychiatric classification system and noted that the identifiable stressor required by the diagnostic criteria was the difficulty that her husband had in the workplace and the consequent difficulties that Ms Hutchison said resulted in her experience working in the same workplace. Dr Wilmot also stated that the diagnosed condition was not an aggravation, acceleration or recurrence of an underlying or pre-existing condition and made a relevant observation with regard to the distinction between pre-existing factors and pre-existing DSM-IV diagnoses.

41.In July 2006 the ATO referred Ms Hutchison to Dr Vickery, consultant psychiatrist, for an independent medical assessment and in his report dated 25 July 2006 he diagnosed adjustment disorder with anxiety and depressed affect.

42.I found Dr Vickery’s report to be somewhat perfunctory and that it added little value to the issues being considered.

43.Dr Miller reviewed Ms Hutchison in August and September 2006 and in a brief letter, dated 1 September 2006, he noted that he had seen her after a break of eight months and that she continued to exhibit a “significantly distressed mental state, struggling with her position in the [t]ax [o]ffice and the history of problems that emerged out of the conflicts with her husband’s work [sic]”. Again he made no diagnosis but increased the dose of her antidepressant medication and added an anti-psychotic medication. This additional medication was subsequently stopped because of significant side effects.

44.In October 2006, Dr Kumar referred Ms Hutchison to Dr Wade, consultant psychiatrist, who she has been seeing monthly since that time.

45.In a report dated 19 March 2007, Dr Wade noted the various problems that Ms Hutchison had in dealing with her husband’s difficulties with the ATO but indicated that she had said that following her husband’s retirement she had tried to separate her husband’s issues, from her own, so that she could get on with her career as evidenced by her promotion in April 2005. However, between May and November 2005 Ms Hutchison complained of difficulties at work as a consequence of having to have contact with officers who had investigated her husband. She complained of problems with variable mood, difficulties with concentration and sleep.

46.Dr Wade concluded that Ms Hutchison was suffering from a major depressive disorder with features of post traumatic stress disorder (‘PTSD’) and associated anxiety. He opined that Ms Hutchison had suffered a “complex psychological injury related to an increasingly toxic workplace where distrust was a major issue and with it many elements of alienation and estrangement” and attributed her psychiatric disease totally to her employment with the ATO.

47.Dr Wade did not directly deal with the question of disease onset but in his report he focussed on Ms Hutchison’s situation in 2005 and subsequent symptoms leaving a clear impression that his diagnosis of major depressive disorder was referable to that particular time.

48.In oral evidence, in response to a question from Counsel as to whether Ms Hutchison’s depressive condition came on in 2003, Dr Wade commented, “I’m not exactly sure, I mean, the GP who initiated the treatment seemed to think so”.

49.In December 2006, Dr Wade had added a mood stabilising medication to Ms Hutchison’s treatment but commented that despite this by February 2007 Ms Hutchison’s depression had deteriorated.

50.In a report dated 28 January 2007, Dr Donsworth, consultant psychiatrist, concluded that sometime between May 2005 and November 2005, until the time of the consultation, Ms Hutchison was suffering from symptoms of a generalised anxiety disorder that was precipitated by three years of anger and distress over her husband’s problems at work.

51.Dr Donsworth opined that prior to the months leading up to November 2005 Ms Hutchison did not suffer any diagnosable psychiatric disorder and that the mere prescription of antidepressant medication by her GP, in May 2003, was not indicative of the presence of a psychiatric diagnosis.

52.In a comprehensive report dated 23 May 2007, Dr Lovric, consultant psychiatrist, diagnosed DSM-IV major depressive disorder. Dr Lovric commented that she considered Ms Hutchison’s condition to be “quite severe” and that it was being perpetuated by both organic and emotional factors due to the “traumas of her work situation”.

53.Dr Lovric’s report focussed more on Ms Hutchison’s current clinical situation and fitness to work rather than the cause of her condition and did not directly address the issue of disease onset.

54.In a relatively superficial report dated 30 October 2006, Dr Gertler, consultant psychiatrist, diagnosed adjustment disorder with anxious and depressed mood and indicated that the level of depression was consistent with an agitated, major depression.

55.Dr Gertler opined that the disorder developed on the basis of Ms Hutchison’s experiences while supporting her husband during his difficulties at work but that it was greatly aggravated by her own experience in the workplace from May to November 2005.

56.In a report dated 8 October 2007 Dr Lewin, consultant psychiatrist, diagnosed generalised anxiety disorder and opined that in 2003 Ms Hutchison had suffered a reactive adjustment disorder with mild symptoms that did not lead to any significant functional impairment or alternatively that she was “merely distressed and troubled”. But then went on the state that “the condition first became evident in 2003. The condition then fluctuated in intensity with some improvement in early 2005”.

57.Dr Lewin also stated that “[f]actors experienced by Ms Hutchison at work between May and November 2005, may have contributed to a worsening of an already established psychiatric condition” but also stated that “[t]he condition was not caused by the events which occurred in 2005”.

58.I found Dr Lewin’s report confusing and internally inconsistent. His conclusions were not supported by satisfactory explanation and he appeared to try and interpret the facts in order to fit a predetermined diagnosis rather than reach a diagnostic conclusion by an analysis of the facts.

Conclusion

59.There can be no dispute that in 2003 Ms Hutchison suffered symptoms that led her GP to diagnose depression and start her on antidepressant medication. Whether this represented the onset of her psychiatric disease or whether this was merely a transient reaction to the difficult circumstances she was experiencing as a consequence of her husband’s workplace difficulties is unclear.

60.Also it is clear that between May and November 2005 Ms Hutchison suffered increasing symptoms that resulted in her being referred for specialist psychiatric assessment and treatment and led to her stopping work in January 2006.

61.The medical evidence is somewhat confused and inconsistent which is not entirely surprising considering that Ms Hutchison had seen eight psychiatrists over two years, only two of whom have seen her on more than one occasion. Although the specific diagnoses have differed, it is clear that Ms Hutchison suffered from a condition with features consistent with severe anxiety and depression.

62.The most plausible explanation for the variety of diagnoses lies in the fact that most of the psychiatric assessments were based on single consultations. In his oral evidence Dr Wade, who had the opportunity to assess Ms Hutchison over a number of months, commented that his initial impression was that Ms Hutchison suffered from some form of anxiety disorder but that in the course of therapy it became clear that she suffered significant symptoms of depression.

63.I also note that in Comcare v Mooi (1996) 69 FCR 439 at [443]-[444], Drummond J observed that a 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.

64.Therefore, for the purposes of my decision, the exact diagnosis is not required. It is more than sufficient that Ms Hutchison had suffered a diagnosable psychiatric disease.

65.After having considered all the relevant medical evidence, I find that the onset of Ms Hutchison’s psychiatric disease was sometime between May and November 2005 and that this did not represent an aggravation of an injury of an underlying disease.

66.This conclusion is supported by the fact that despite her symptoms and medication Ms Hutchison was not referred for psychiatric assessment, was able to support her husband in difficult circumstances and continued to work during 2003 and 2004 with no evidence of deficiencies in her performance. Furthermore in March 2005 she applied for and was successful in gaining a promotion.

67.I also noted that during 2003 and 2004 there was evidence in Dr Kumar’s clinical records that Ms Hutchison was suffering from gastro-intestinal symptoms that led to a diagnosis of coeliac disease in September 2004.

(iii) Was Ms Hutchison entitled to compensation for the disease she had suffered?

Ms Hutchison’s evidence

68.In an addendum to her claim form dated 15 February 2006 and in response to question 20 of the claim form, “What started the chain of events that led to your injury or illness?”, Ms Hutchison provided a detailed history of the difficulties her husband had encountered in his dealings with the ATO prior to his medical retirement in January 2005.

69.It is relevant that between July 2005 and November 2005 Mr Haberl had resumed correspondence with various senior officers of the ATO with regard to his dissatisfaction with an investigation process and the lack of response from the ATO. Mr Haberl also lodged formal complaints with the Federal Privacy Commissioner and HREOC in order to compel the ATO to respond.

70.In response to question 22 of the claim form, “What actually injured you, or made you ill?”, Ms Hutchison noted that her husband had been injured by his difficulties with the ATO and that “[a]s his spouse, carer, and support person” she had been exposed to the “anxiety, depression and personality changes” that had resulted from the conflict and frustration that he had encountered in his dealings with the ATO.

71.Ms Hutchison also claimed that as part of the senior management team in the ATO at Newcastle she was often unavoidably in the presence of senior managers who had been directly involved in her husband’s case and that this resulted in a constant reminder of all the conflict that had occurred. The contact with these officers occurred intermittently in the course of her work but particularly during weekly forums involving EL2 officers. She claimed that this situation had caused her to suffer increasing anxiety and led to difficulties in the performance of her duties. Ms Hutchison also referred to feeling conflicted with divided loyalties and made particular reference to a senior executive service executive level two (‘SES/EL2’) dialogue day where she had felt that the “idealistic” view of a manager’s role to act fairly when dealing with staff requiring unplanned leave was not consistent with reality. This resulted in her feeling a lack of confidence and respect for the capacity of the senior managers to treat staff fairly.

72.In a written request for review of the decision rejecting her claim for compensation, dated 11 April 2006, Ms Hutchison stated that following her promotion to acting EL2 Project Officer in May 2005 she had regular contact and work interaction with senior managers including those who had been directly involved in her husband’s matters and who had been the subject of various complaints lodged by her husband. Ms Hutchison claimed that this contact over the period from May 2005 to November 2005 caused her to suffer increasing anxiety about attending her workplace and that that she had experienced “extreme anxiety, tension and internal turmoil” in her dealings with those senior ATO managers who had been directly involved with her husband’s case. She also indicated that she had found it increasingly difficult to function in her senior officer role given her lack of respect, distrust and underlying contempt for these managers.

73.In a written statement, dated 10 April 2007, Ms Hutchison named the four managers of the Newcastle site leadership team with whom she claimed to have had difficulties and provided a detailed account of her recollection of specific events during which she alleged that these officers had behaved inappropriately or had been dismissive of her contributions.

74.It serves no purpose to describe these written allegations in detail as the relevant issues were again addressed in the course of Ms Hutchison’s oral evidence.

75.In her oral evidence Ms Hutchison claimed that following her promotion, despite having a specific duty statement, other EL2 officers had informed her of various obligations and responsibilities to the Newcastle site leadership that included a requirement to attend a weekly forum with other EL2 managers. In the first two to three months Ms Hutchison indicated that work related travel had limited her attendance at these forums.

76.Ms Hutchison claimed that the forums were convened by the site leader and tasked with discussing, amongst other things, staff management issues.

77.I note that the site leader had been Mr Haberl’s line manager in 2003 and had been directly involved in the original proceedings against Mr Haberl including an unsuccessful mediation.

78.Ms Hutchison claimed that at some of the forums, that she been able to attend, her contributions to discussion had been inappropriately dismissed and that she had noticed that certain managers would whisper to their neighbours while looking in her direction. Ms Hutchison had felt that these officers were talking about her and this had made her feel self-conscious and physically sick. The managers involved were those officers who had been involved with her husband’s issues.

79.Ms Hutchison also referred specifically to her attendance at the SES/EL2 dialogue day where a member of the senior executive service attended the Newcastle office to discuss staff management issues with the EL2 site group. Ms Hutchison stated that she had actively participated in the discussion but that the EL2 site leader had intervened and been dismissive of her contribution to the discussion. Ms Hutchison claimed that at the time she had felt very distressed as she had been made to look foolish in front of a senior executive manager and felt that her credibility had been undermined.

80.In cross-examination, Counsel for the Respondent, challenged Ms Hutchison with regard to her allegations about the behaviour of her work colleagues on the grounds that she had not included the detail of these allegations in her original written claim and suggested that after her claim had been disallowed she had changed her evidence in order to meet the requirements of the law.

81.Ms Hutchison responded by saying that following her claim being disallowed she realised that she needed to provide more specific details about the events that she had mentioned in her original claim.

82.During cross-examination, Ms Hutchison conceded that attendance at the weekly forums was not mandatory, that they were essentially an informal opportunity for information sharing, that there was no formal agenda, and that there were no minutes kept.

83.Ms Hutchison also conceded that she had not been pleased when her husband resumed his complaints with the ATO.

ATO managers’ evidence

84.In response to Ms Hutchison’s statement of 10 April 2007, all four named senior ATO managers provided written statements and the Tribunal also had the benefit of oral evidence from the same managers.

85.The evidence of the managers tended to cover similar ground and I do not intend to describe it in detail but rather summarise the relevant points. In doing so, I make no inference as to the value or credibility of this evidence.

86.All of the managers acknowledged their roles in dealing with Mr Haberl and indicated that at all times, in their view, that they had acted appropriately and within ATO guidelines.

87.I note that between May 2005 and November 2005 there was no direct managerial or operational relationship between Ms Hutchison and any of the four managers.

88.All of the managers denied the various allegations made by Ms Hutchison with regard to their behaviour. Each of the managers emphasised that notwithstanding their roles in dealing with Mr Haberl that they had no personal issues with Ms Hutchison.

89.In general the recall of details of specific meetings and conversations was limited. This was not surprising considering that more than 18 months had elapsed between the relevant episodes and the requirement to provide evidence. Furthermore, it was clear that all of the managers considered that their contact with Ms Hutchison during the relevant period had been infrequent and relatively brief and they had not considered that their interaction with her was of any significance.

90.With regard to the weekly forums, the evidence consistently supported the proposition that these meetings were used for information sharing pertaining to the Newcastle site, were informal and rarely lasted more than 30 minutes.

91.It would be fair to say that, in general, the evidence of the four managers did not support Ms Hutchison’s version of the alleged incidents.

92.However, notwithstanding some inconsistencies, I am satisfied that the incidents referred to by Ms Hutchison in her evidence did in fact take place but that her perception of the nature and importance of these incidents was at variance with that of the managers.

Medical evidence

93.Dr Wilmot, in his report of 19 July 2006, noted that following her promotion to an acting EL2 position Ms Hutchison had found herself as part of a senior team that included managers who had been involved in the difficulties that had been suffered by her husband and that she had found her relationships with these managers complex. He also noted that she was now “in a situation where she had to work cooperatively with these other managers at their level and at the same time was filled with knowledge and history about the conflicts that had previously occurred with her husband”. These complexities and difficulties had made her anxious and depressed.

94.Dr Wilmot opined that Ms Hutchison had reacted in an “extreme fashion to the circumstances that she was presented with”, that her disorder was caused by “circumstances that have declared themselves within the workplace” and that the “worsening of her condition appeared to have taken place because of her acting promotion to a level where she was now having considerable difficulty in dealing with her peers”.

95.Dr Vickery, in his report of 25 July 2006, attributed Ms Hutchison’s disorder to her husband’s invalidity and commented that her employment did not appear to be a substantial contributing factor but provided no satisfactory explanation for his conclusion. As already stated above, I found Dr Vickery’s report unhelpful.

96.In his report dated 19 March 2007 Dr Wade, Ms Hutchison’s treating psychiatrist, provided a fairly comprehensive analysis of the evolution of Ms Hutchison’s psychiatric disorder and concluded that her condition was totally attributable to her employment with the ATO.

97.In his oral evidence, in response to a question about factors that led to Ms Hutchison’s inability to cope at work at the end of 2005, Dr Wade indicated that one of the factors was the perception of alienation by other managers. This included perceptions that she was being ignored, that her contributions were not being taken seriously, that people were avoiding eye contact with her and that people would not respond to common greetings.

98.In trying to explain why her inability to cope manifested in 2005 and not earlier, Dr Wade opined that the increased contact with managers who had been involved with her husband’s difficulties may have had a cumulative effect in creating a sense of estrangement and had enhanced an awareness that the way business was being done by the current management was reminiscent of how her husband had been treated. Dr Wade also indicated that Ms Hutchison’s sense of alienation was a central issue at the time of the first consultation in 2006.

99.In the course of cross-examination, Dr Wade commented that an important factor in Ms Hutchison’s problems was the significant value she placed on her own work and although her perception of the way her husband had been treated was an issue, her perception of how she herself was treated was even more significant.

100.Counsel for the Respondent pressed Dr Wade to concede that the “substantial significant matter” causing Ms Hutchison’s problems was her husband’s involvement, that he had “infected” his wife with his problems and that her perceived problems with her colleagues at work were marginal. Dr Wade agreed that Ms Hutchison had been significantly affected by her husband’s issues but commented that Counsel’s proposition was too simple and artificial.

101.In response to a question from the Tribunal, Dr Wade agreed that a person suffering from a psychiatric disorder may have distorted perceptions of surrounding events.

102.It was clear from Dr Wade’s oral evidence that he had an in-depth understanding of Ms Hutchison’s situation and I found his evidence to be very persuasive.

103.Dr Gertler saw Ms Hutchison on one occasion only and in his written report of 30 October 2006 he opined that Ms Hutchison’s disorder developed on the basis of her experience in supporting her husband, and was aggravated by her own experiences in the workplace.

104.Dr Gertler’s oral evidence did not add significantly to his written evidence.

105.In cross-examination Dr Gertler conceded that his opinion was based on the history given to him by Ms Hutchison and that if his assumptions were not correct, his opinion would need to be revised. He was asked by Counsel for the Respondent to respond to various alternative assumptions and it became clear, in my view, that his understanding of Ms Hutchison’s situation was quite superficial.

106.In her report of 28 January 2007 Dr Donsworth opined that Ms Hutchison’s condition was precipitated by “her experience of three years being angry and distressed over her husband’s problems” and that her emotional problems were related to the effect on her of “her husband’s continuing actions against the ATO”.

107.Dr Donsworth also noted that Ms Hutchison strongly believed that the attitude of the four managers had caused her emotional distress and that there had been actual discrimination but went on to comment that there was no objective evidence to support Ms Hutchison’s assertions apart from her own perceptions.

108.Dr Donsworth also stated that she was unable to determine whether there were any employment factors, which had made a material contribution to Ms Hutchison’s psychological condition but went on to hypothesise that following her promotion in 2005 Ms Hutchison found herself working with four managers who she believed had treated her husband unfairly and that her “attitudes to them and her perceptions of how they were treating her started her ruminations and eventual response of anxiety at the thought of working with these four managers any longer”.

109.It would appear that Dr Donsworth’s hypothesis did support a proposition that the situation Ms Hutchison found herself in at work did contribute to her psychiatric condition.

110.I found Dr Donsworth’s oral evidence confusing and not particularly helpful. For example, in response to a question from Counsel with respect to factors contributing to Ms Hutchison’s condition, Dr Donsworth referred to the contents of the addendum of the original claim form but did not go on to provide a satisfactory answer to the question.

111.I have already noted above the relevant aspects of the reports of Drs Lovric and Lewin.

112.In the course of cross-examination of the three psychiatrists who gave oral evidence, Counsel for the Respondent frequently referred to the clinical notes of Dr Kumar, Ms Hutchison’s GP. Counsel sought the opinions of the psychiatrists on the relevance of his observation that during the period prior to the claim Dr Kumar had made no notation in the record that had referred to the alleged behaviour of the ATO managers.

113.I note that the entries in Dr Kumar’s clinical notes with regard to Ms Hutchison’s psychiatric issues tended to be extremely brief and in my view any opinion on the relevance of these notes in the context of what was clearly a complex situation would amount to mere speculation and should be given little weight.

Consideration

114.The medical evidence before me clearly points to a conclusion that Ms Hutchison continues to suffer from a psychiatric disease. For reasons above, I have found that the onset of this disease occurred between May and November 2005.

115.There can be no dispute that this disease is an ailment within the meaning of the definition of disease in section 4 of the Act.

116.However for Ms Hutchison’s claim for compensation to be successful, section 4 requires that her ailment was contributed to in a material degree by her employment.

117.In deciding this issue I am confronted with an unusual and complex set of facts and it is useful to summarise as follows: Ms Hutchison and Mr Haberl both started working at the ATO office in Newcastle in 1985 and continued to work there after being married in 1995 albeit in different sections. This arrangement continued for several years without apparent difficulty until 2003 when Mr Haberl started to have a number of disciplinary problems. As a result of claims and counterclaims these problems continued for a period of about two and a half years until his medical retirement in January 2005. This time can best be described as a period of significant hostility and stress and it is clear that Ms Hutchison provided support for her husband both at work and at home. During this time Ms Hutchison was diagnosed as suffering from coeliac disease and in 2003 she also suffered symptoms that led her GP to prescribe antidepressant medication. Notwithstanding all these problems, Ms Hutchison continued to work with no apparent effect on her performance and also continued to manage her home duties and support her two children. In March 2005 she applied for and was successful in being promoted to an acting EL2 position. As a consequence of her promotion she found herself in a situation where she had to interact as a senior colleague with several ATO managers who had been significantly involved in the difficulties that had led to her husband’s medical retirement. Relevantly between July and November 2005 her husband had reactivated various matters with the ATO, the Federal Privacy Commissioner and HREOC. During this period Ms Hutchison began to suffer from more severe symptoms that led to her being referred for psychiatric treatment and subsequently in January 2006 she took sick leave and has not since returned to work.

118.The essential question to be determined is, whether the circumstances of Ms Hutchison’s employment during the latter half of 2005 contributed in a material degree to the psychiatric ailment from which Ms Hutchison suffered and continues to suffer.

119.The essence of Ms Hutchison’s claim is that between May 2005 and November 2005 she faced at situation at work in which she was required to interact with senior ATO managers who had been directly involved with her husband’s difficult disciplinary history and that these managers had behaved in a way that had materially contributed to the onset of her psychiatric disorder.

120.Counsel for the Respondent submitted that Ms Hutchison’s psychiatric disorder was entirely due to factors surrounding her husband’s difficulties with the ATO, in particular the reactivation of his complaints in the latter half of 2005, and that her claims about the behaviour of the managers and the effects on her represented a deliberate change of emphasis over time in order to overcome the reasons for the rejection of her original claim for compensation.

121.In support of this submission, Counsel pointed to the content of the original application with its addendum containing a lengthy and detailed description of Mr Haberl’s difficulties and a relatively brief description of Ms Hutchison’s difficulties with no mention of the specific complaints about the behaviour of any of the ATO managers.

122.Furthermore Counsel submitted that Ms Hutchison was not a reliable witness and that she was not to be believed.

123.In support of this submission Counsel pointed to the discrepancies in Ms Hutchison’s evidence and the evidence of the four senior ATO managers as well as the lack of contemporaneous documentation to support her claims. Counsel also suggested that the incidents that Ms Hutchison had described may, in fact, not have occurred and even if they had, they should be regarded as trivial events that could not amount to a material contribution to her psychiatric disorder

124.I am not persuaded by these submissions.

125.It is clear that Ms Hutchison’s situation is unusual and quite complex and that the onset of her psychiatric disease occurred in circumstances where several factors may have collectively made a material contribution. To isolate any one of the factors as a sole contributor would in my opinion be simplistic and not consistent with the weight of the evidence.

126.The original decision to reject the claim was, in my opinion, based on an inadequate assessment of Ms Hutchison’s situation and it is not surprising that when requesting reconsideration of the decision that she would have provided additional details and in a format that was directed at the requirements of the legislation. I do not accept that this in itself is prima facie evidence of deliberate misrepresentation.

127.The discrepancies in evidence between Ms Hutchison and the four senior ATO managers are problematic but also not surprising.

128.All four managers admitted to limited recall as to the detail on a number of the matters raised with them and furthermore it was clear that they had considered these matters as relatively trivial from their perspective.

129.I make no finding as to which version of events was correct other than to say that in my view there was sufficient evidence before me to conclude that certain incidents did take place and that Ms Hutchison perceived that those incidents had affected her in an adverse manner and that her perception of the significance of these incidents may have been exaggerated.

130.My finding should in no way be considered to imply that the ATO managers had acted inappropriately.

131.Much of the evidence and submissions was directed at Mr Haberl’s problems and the alleged interaction between Ms Hutchison and the four ATO managers and this approach has unfortunately tended to cloud the overall picture.

132.By the middle of 2005, Ms Hutchison had been an employee of the ATO in Newcastle for almost 20 years. Until her husband began to have difficulties in 2003 there was no evidence to suggest that Ms Hutchison had experienced any significant difficulties in the course of her employment. The fact that in 2005, notwithstanding her husband’s problems, she was promoted to an acting EL2 position would suggest that Ms Hutchison had been an effective and valued employee.

133.This raises the question as to what happened in 2005 that resulted in a situation where within six months a senior longstanding employee was no longer able to work?

134.Ms Hutchison claimed it was the behaviour and the attitudes of the four managers who had been directly involved in her husband’s problems.

135.Counsel for the respondent submitted that it was due to her past experiences with her husband’s problems coupled with the fact that in July 2005 Mr Haberl reactivated his conflict with the ATO a mere six months after he had retired on medical grounds.

136.In my opinion the answer to the question is far more complex.

137.In general the medical evidence has not been very helpful at is it has been somewhat inconsistent with each psychiatrist giving opinions based on their own particular perspectives usually based on a single consultation.

138.In my view the evidence of Dr Wade, Ms Hutchison’s treating psychiatrist, who had the advantage of seeing her regularly over 12 months suggested the most reasonable explanation. I have already commented above that I found Dr Wade’s evidence particularly persuasive.

139.In his written and oral evidence Dr Wade depicts a highly motivated and successful professional woman who is now suffering from a significant psychiatric disorder that has seriously compromised her career. Following a presumably well deserved promotion, Ms Hutchison found herself in a situation where she continued to be confronted by her husband’s problems and also the possibility of increased contact with four senior managers who had been directly involved with her husband’s difficulties and with whom she considered there remained unresolved tensions. This situation, in itself, caused Ms Hutchison to suffer feelings of anxiety.

140.As it turned out, notwithstanding the dispute over the details, there were occasions where she did interact with these managers and at least from her perspective, she had found these interactions distressing as she had perceived that these managers had been dismissive of her contributions to discussions at meetings and that she had felt they were whispering to their colleagues about her.

141.As a result of her situation Ms Hutchison was clearly confronted with her own position as a senior ATO Officer and found that she had begun to lose confidence and felt that her integrity, competence and experience were being challenged by the perceived behaviour of managers for whom she now had lost respect. As a consequence of this, Ms Hutchison also began to question the standards of management as she felt the attitudes of the managers reminded her of the way her husband had been treated.

142.For the above reasons, I am of the opinion that the evidence before me points to a conclusion that the onset of Ms Hutchison’s psychiatric disease was contributed to by a confluence of many factors that included her husband’s problems. In particular however, as a result of her experiences with her husband’s problems, Ms Hutchison had become vulnerable and when she was placed in the unusual situation of having to interact with senior managers who in her view had contributed to her husband’s problems, she was affected in such a way that led to the onset of her psychiatric disease. This, in my view, would suggest that the circumstances of her employment between May and November 2005 contributed substantially to the onset of Ms Hutchison’s psychiatric disease.

143.The next question is whether the contribution from Ms Hutchison’s employment was sufficient to satisfy the legal tests that apply to concepts to the concepts of “employment” and “contributed to in a material degree”.

144.With reference to the concept of employment, Counsel for the Respondent referred the Tribunal to the decision of Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, where his Honour in interpreting the notion of “employment” said:

When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.

145.Counsel did not refer to the judgement of Kitto J (with whom Taylor and Owen JJ agreed), where in addressing the concept of employment, his Honour said:

Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition. [Emphasis added]

146.Furthermore, in Wiegand v Comcare Australia [2002] FCA 1464, von Doussa J noted that Kitto J in his judgement had not introduced:

…any qualification or refinement to the meaning to be given to “employment” which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, … [Emphasis added]

147.Following her promotion Ms Hutchison found herself in a situation which could be best described as a “state of affairs” where she had to associate with senior managers who had been directly involved in her husband’s disciplinary matters. In addition, she experienced “incidents” which caused her distress and she perceived contributed to the deterioration of her mental health. Although her interaction with these managers was not at an operational or managerial level but relatively informal, nevertheless, I am satisfied that this interaction was a relevant component of her role as a senior manager in the Newcastle office of the ATO.

148.Therefore, following the approach of Kitto J, I find that Ms Hutchison was exposed to a “state of affairs” and “incidents” in the performance of her duties to which to which she would not have otherwise been exposed, but for her employment.

149.On the question of “material contribution” von Doussa J observed that in his opinion:

…there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee ( whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled. [Emphasis added]

150.Von Doussa J refers to aggravation of an ailment, however this reflects the particular circumstances of the case and I can see no implication that the stated principle does not also apply in the context of a new ailment.

151.Notwithstanding the submissions of Counsel for the Respondent, I have already determined that following her promotion the incidents described by Ms Hutchison in her evidence did actually occur albeit with varying interpretations as to the details and significance of those incidents.

152.The concept of “material contribution”, particularly with reference to the meaning of the phrase “in a material degree”, was further developed in Comcare v Sahu-Khan (2007) 156 FCR 536.

153.In that case, Finn J at [12], endorsed the decision of French and Stone JJ in Canute v Comcare (2006) 226 CLR 535, in which their Honours said that the changes brought about by the enactment of the Act “were intended to require that the contribution be ‘more than a mere contributing factor’” and that the inclusion of the term “material” imposes an “evaluative threshold below which a causal connection may be disregarded”.

154.Finn J commented that identifying the threshold was a problem and went on to consider the definition of the word “materially” in the Shorter Oxford English Dictionary. He noted that one of the meanings of the word captured the essence of the intention of the legislation, that meaning being “in a material degree; substantially, considerably”.

155.Finn J concluded at [16] that the correct test for the application of the section 4 definition of “in a material degree” required “an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment” and that whether this will be so in a given case “will be a matter of fact and degree”.

156.In deciding this matter I am also mindful of the decision in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249, an appeal from the decision of an Acting Deputy President of the NSW Workers Compensation Commission, considering points of law under various sections of the Workers Compensation Act 1987 (‘the 1987 Act’), where Spigelman CJ said at [40]:

In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an “eggshell psyche” principle which, like the equivalent “eggshell skull” principle, is a rule of compensation not of liability.

157.For reasons I have already stated, and after considering all the evidence, in particular the possible factors that may have contributed to the onset of Ms Hutchison’s psychiatric disease, I find that the circumstances of Ms Hutchison’s employment between May 2005 and November 2005 substantially contributed to her disease.

158.Therefore, I find that between May 2005 and November 2005, Ms Hutchison suffered an injury in the form of a disease being an ailment that was contributed to in a material degree by her employment.

159.It follows that Ms Hutchison is entitled to compensation pursuant to section 14 of the Act.

160.At the outset of the hearing Counsel for the Respondent had indicated that “continuing incapacity” was at issue.

161.At the conclusion of the hearing however, Counsel for the Respondent indicated that in view of the way the evidence had transpired the decision in this case could be limited to question of liability pursuant to section 14 and that continuing incapacity was no longer at issue.

162.I note however, without deciding, that in my view the medical evidence before me would have supported a conclusion that Ms Hutchison does have continuing incapacity from her psychiatric disease.

Decision

163.For the above reasons

1)The reviewable decision of the Respondent, dated 1 September 2006 determining that Ms Hutchison’s “depressive disorder” was not work related and was not contributed to in a material degree by her employment, is set aside.

2)In substitution for the decision set aside, it is decided that between May 2005 and November 2005 Ms Hutchison suffered an injury as defined in section 4 of the Act in that she suffered an ailment that was contributed to in a material degree by her employment.

3)Ms Hutchison is entitled to compensation pursuant to section 14 of the Act.

4)The decision on the matter of costs has been reserved. The parties have 14 days from the date of this decision to advise the Tribunal if this wish to put further argument. If they do not, the Tribunal will make an order pursuant to section 67(8) of the Act that the Respondent pay Ms Hutchison’s costs.

I certify that the 163 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed:         

..................[sgd]................................

K. Thomson, Associate

Dates of Hearing  28, 29 and 30 November 2007

Date of Decision  23 January 2008

Counsel for the Applicant         Mr G Giagios

Solicitor for the Applicant          Mr M Lawandi 28 and 29 November 2007;

Ms J Parker 30 November 2007

Counsel for the Respondent     Mr G Elliot

Solicitor for the Respondent    Ms M Mittiga