HYJZ and Comcare (Compensation)
[2015] AATA 766
•30 September 2015
HYJZ and Comcare (Compensation) [2015] AATA 766 (30 September 2015)
Division
GENERAL DIVISION
File Numbers
2013/3113
2013/3659
2014/2874
Re
HYJZ
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 30 September 2015 Place Brisbane The Tribunal affirms the decision under review.
...............................[Sgd].........................................
Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – accepted psychiatric condition - whether applicant was incapacitated where applicant continued full-time employment in the period in question – whether condition aggravated by employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 8, 5A(2), 14, 9, 4(9),
REASONS FOR DECISION
Senior Member Bernard J McCabe
30 September 2015
These proceedings raise two issues under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The first (which is the subject of file numbers 2013/3113 and 2013/3659) relates to the applicant’s entitlements (if any) pursuant to s 19 of the SRC Act. Section 19 provides for compensation for injuries resulting in incapacity. Comcare says the applicant did not experience any incapacity as a consequence of his work-related condition prior to being suspended on full pay (and then being suspended without pay, and eventually resigning) for misconduct. But if the applicant was incapacitated prior to his suspension, Comcare and the applicant are in dispute over the impact of suspension on the calculation of the applicant’s normal weekly earnings, or NWE, for the purposes of s 8 of the SRC Act.
The second issue (the subject of application number 2014/2874) relates to Comcare’s decision to deny liability for an aggravation of the applicant’s accepted psychiatric condition. Comcare denied there was an aggravation but argued in the alternative that any aggravation which may have occurred was a result of reasonable administrative action (within the meaning of s 5A(2) of the SRC Act) surrounding his suspension.
I initially decided to hear the case on the papers with the consent of the parties. It seemed a good idea at the time, although the case ended up being much more complex, and the documents much more voluminous, than I expected. It became necessary to convene a hearing to discuss aspects of the evidence and the application of the law. The applicant made further submissions after that hearing, which required me to revert to the parties for further clarification.
I have decided the decisions under review must be affirmed. I explain my reasons below.
WHAT HAPPENED?
The applicant worked for a Commonwealth agency. His terms and conditions were set out in the relevant industrial instruments. He experienced problems at work that led to the onset of psychiatric symptoms. He was diagnosed in due course as suffering from adjustment reaction with mixed emotional features and major depressive disorder single episode. The date of injury was accepted as 7 June 2008, although he did not seek treatment until November 2008. He remained at work and received his ordinary pay following the onset of the condition in June 2008. But then events took an unexpected turn.
The employer commenced an investigation into the applicant after examining the contents of his home computer on 14 November 2008. (The applicant was experiencing problems with the device and had asked the information technology specialists who worked at the agency to fix it.) The employer suspended the applicant with pay on 23 December 2008. He continued to be paid his base salary but did not receive some additional entitlements he could have received if he had been actively working. After the investigation progressed, the applicant was suspended without pay on 29 March 2012. The employer subsequently notified the applicant his employment would be terminated with effect from 5 December 2012. He resigned on 4 December 2012 before his employment was terminated.
THE APPLICANT’S ENTITLEMENTS UNDER SECTION 19
Comcare accepted liability for the applicant’s work-related injury – the adjustment reaction and major depression condition - pursuant to s 14 of the SRC Act. Section 19 provides for the payment of compensation in respect of work-related injuries that result in incapacity. The calculation of an employee’s entitlements under s 19 requires the decision-maker to determine the applicant’s normal weekly earnings, or NWE, during the relevant period. Section 8 explains how the NWE are determined, while s 9 defines the expression relevant period used to make the calculation.
Comcare says the applicant was not, in fact, incapacitated as a result of his injury within the meaning of s 4(9). He continued working until he was suspended notwithstanding his accepted condition and he was paid his ordinary allowances right up until the point he was suspended: see pp 160-173 of the consolidated bundle of evidence (exhibit 1 - consisting of 3 volumes), which set out the applicant’s pay records. In those circumstances, Comcare says there is no basis for compensation under s 19.
The applicant does not dispute he continued to work full-time up until he was suspended but points out his applications for leave during the period were frustrated by the same manager whom he says was responsible for causing the work stress that precipitated his injury. (Comcare, for its part, did not concede the applicant’s managers behaved inappropriately: see Respondent’s submissions dated 20 July 2015 at [3].) The applicant says he wanted to take time off but he was not allowed to do so. He also claimed he was impaired in the performance of his duties and argued his home life suffered as a consequence of his ill-health. I note a statement from his wife appears to corroborate his account of the situation at home.
Section 19 deals with incapacity for work, not with any impact on one’s home life. It follows the evidence about the applicant’s increasingly dysfunctional home life does not assist in the present proceedings. But s 4(9) defines incapacity for work to include incapacity to engage in any work, or to undertake work at the same level the worker had been undertaking before the injury occurred. There is some evidence which suggests the applicant was impaired as a consequence of his condition: that would be expected given the diagnosis. He points out (in submissions dated 3 December 2014 at [10]) he was suffering from depression and experiencing suicidal ideation during that period. That state of mind probably did impact on his efficiency and may have reduced the quality of his work. (Evidence provided by the applicant, which was not disputed by Comcare, suggests he previously enjoyed an excellent reputation for the quality of his work and the volume of his output.)
Comcare noted (in submissions dated 10 December 2014 at [12]) it is not enough to establish impairment for present purposes. One must be satisfied there is actual incapacity, which is a different concept. That approach suggests it is not enough to establish the applicant found his duties more onerous as a result of his work-related condition, nor is it enough to establish his health was deteriorating at the relevant time. He must point to evidence that he could not do that work, or any work; or alternatively, that he could not undertake that work to the same level as before his injury. The existence of incapacity in the relevant sense is a jurisdictional fact which must be established before there can be compensation under s 19.
The applicant referred to a number of psychiatric reports that have been produced in the course of the proceedings. His principal expert psychiatrist is Professor Middleton. Professor Middleton suggested the applicant was seriously overworked and unsupported during 2008. Interestingly, in his report at pp 410ff (exhibit 1 vol. 2), Professor Middleton quotes from a string of personal development reports which offer largely glowing appraisals of the applicant’s performance over several years. The report referring to the middle of 2008 (exhibit 1 vol. 2, at p 413) is no exception, although it does allude to some issues about client satisfaction. But there is no suggestion in the report that the applicant was, between March and August 2008, unable to do any aspect of his job (or do it at the same level) even if he was paying a high personal price. (That price is apparent from his wife’s evidence about the impact of the work on her husband, and the fact the applicant felt the need to seek medical assistance.) The evidence about the balance of the year – that is, the period between August 2008 and the time of his suspension in December 2008 – does not suggest the applicant was unable to do his job, or unable to do it at the same level.
In his written and oral submissions, the applicant raised concerns over the reliability of the personal development reports. He said those reports (or most of them) were completed by the same supervisor who was causing him trouble by ignoring his concerns, denying him leave and otherwise mismanaging him. The applicant wanted to call the supervisor to give evidence and challenge a statement she provided at an early point in the proceedings, but which Comcare says should be disregarded. I declined to call the supervisor because it seemed unnecessary to do so as Comcare conceded work stressors contributed to the onset of the applicant’s adjustment disorder and major depression. The applicant said the supervisor was apt to gloss over difficulties the applicant might experience because she did not want it to reflect on her own performance as a manager.
I accept I should disregard the personal development reports in light of the questions the applicant raised over the reports of his supervisor. But that leaves me with evidence (for example, the pay records at exhibit 1 vol. 1 pp 160-173) suggesting the applicant continued turning up to work in his usual job, where he undertook his usual duties on a full-time basis. While that might seem surprising given the state of his mental health, there is evidence to suggest his experience was not unusual. As Professor Grant, a psychiatrist, explained in his report to the Director of Public Prosecutions of 11 July 2011 (exhibit 1 vol. 2, at p 476):
It may seem at first surprising that [the applicant] could continue in the workplace for as long as he did, apparently functioning at a reasonable level despite the presence of a very significant Major Depressive illness. However, such masked depression is well recognised, and it is clear from the history that symptoms of depression were affecting him in a very significant way but his personality style led him to continue to work very hard to overcome any difficulties in conducting his duties at work.
There was some dispute over the precise number of hours worked in the relevant period. That said, there is no suggestion the applicant was not working a full-time load. I also note the applicant did not provide medical certificates excusing him from attending work on the basis of his psychiatric illness: one would expect medical certificates if the applicant were unable to attend work because of his mental health. The applicant says in his submissions that he effectively turned up to work under protest, but that is irrelevant because he was able to comply with the (he says unreasonable) directions he was receiving from his supervisors and carry on with his work. Indeed, the fact he was unable to escape the pressures of doing his job on a full-time basis is an essential part of the applicant’s complaint: he says he should have been given relief from onerous work duties that helped trigger the onset of symptoms in the first place.
That finding provides a basis for the argument that he retained the capacity to work at the same level, even if there were ramifications for his health. In those circumstances, I am not satisfied the applicant experienced incapacity (as opposed to impairment) as a consequence of his accepted workplace condition in the period between 7 June and 23 December 2008.
The applicant ceased attending work from 23 December 2008 when he was suspended from duty with pay. He remained on suspension (albeit that he was suspended without pay on 29 March 2012) until he resigned in late 2012. The fact of his suspension complicates the enquiry into his capacity, to the extent that such an enquiry is necessary. Comcare says in its submissions dated 24 November 2014 “that there is no persuasive evidence that the Applicant was incapacitated after 23 December 2008”. The applicant disagrees. He provided an email from Dr Walsh, the applicant’s treating psychologist, dated 29 June 2015. In that email, Dr Walsh confirmed the applicant did not have his usual capacity to undertake his ordinary employment with the employer before he was suspended and no capacity to undertake that work after his suspension. Dr Walsh added the applicant had the capacity to undertake at least some forms of alternative work after he resigned. Allowing for the fact Dr Walsh does not appear to use the expression incapacity for work in the technical sense intended by s 4(9) of the SRC Act, his evidence provides some support for the applicant’s claim. But I must weigh that evidence, such as it is, against the rest of the material. I note Dr Walsh’s report of 28 January 2014 observes the applicant had a very good response to treatment and his major symptomatology had largely resolved (exhibit 1 vol. 2, at p 506). That evidence is difficult to square with Dr Walsh’s subsequent comments on incapacity. Dr Walsh’s evidence in 2014 appears consistent with the observations of Professor Middleton in his lengthy and detailed report of 13 April 2011 (exhibit 1 vol. 2, at pp 444-445, 452). Professor Middleton, a consultant psychiatrist, concluded the applicant’s condition had improved significantly by October 2010 although Professor Middleton acknowledged some residual symptoms. Professor Grant, another psychiatrist who prepared a report dated 11 July 2011, also noted the applicant “has improved immensely on treatment with anti-depressants and psychological therapy”. While conceding the applicant continued to experience some symptoms, Professor Grant noted the applicant was able to successfully complete education courses. In a more recent report prepared for Comcare dated 3 August 2012, Dr Ljubisavljevic, a psychiatrist, concluded the applicant was ready to return to work in a graduated work program (exhibit 1 vol. 2, at p 497) – although I acknowledge a subsequent report from Dr Ljubisavljevic dated 30 June 2014 suggests the applicant was continuing to exhibit symptoms which she ascribed to the stress caused by the ongoing dispute with Comcare.
While I acknowledge there are some inconsistencies in the evidence, the preponderance of expert opinion is not consistent with the applicant experiencing incapacity in the period following his suspension. While the applicant continued to experience some symptoms, there is clear evidence of an improvement in his health and a strong indication that the applicant should be able to work – if not in his former role, because of the allegations of misconduct, then in a comparable alternative role, given he was capable of studying. That improvement is to be expected given the causal connection between his psychiatric condition and his workplace: once removed from that workplace, with all of its particular stressors, one would expect the symptoms of an adjustment disorder in particular to abate.
I will deal briefly with an argument raised by the applicant in his written submissions, and which was also mentioned at the hearing. The applicant asserted (in submissions dated 13 July 2015 at [49]) he was unable to obtain similar work at any federal or state agency following his suspension and resignation, which meant he was experiencing incapacity within the meaning of s 4(9). He referred to the loss of his security clearance as one factor; I accept the circumstances that led to his suspension and resignation are also almost certainly an obstacle to obtaining work. Comcare’s position appears to be that any difficulties the applicant experiences in returning to his old job or similar work are attributable to his misconduct rather than his illness. The applicant disagrees: he argues the conduct which led to him being suspended was itself the product of his work-related condition. He argued he engaged in the misconduct in question while he was in a dissociative state that was triggered by his illness.
The applicant relied on evidence provided by Professor Middleton. His reports are included in volume 2 of exhibit one. They were prepared in connection with the criminal investigation into the applicant’s misconduct. Professor Middleton focused on whether the applicant was capable of forming the mens rea to commit the offences for which he was being investigated. Professor Middleton concluded in his main report dated 13 April 2011 (exhibit 1 vol. 2, at p 452), that the applicant could not be diagnosed with dissociative identity disorder although he did experience dissociative episodes alongside the accepted adjustment disorder and major depression condition. Interestingly, Professor Middleton identified childhood experiences were major contributing factors to his significant dissociation (exhibit 1 vol. 2, at p 452). He said the combination of those dissociative experiences with the applicant’s work-related depression were significant factors in his misconduct. Professor Middleton went on to opine (at p 453):
On balance, it think that is more likely than not, that [the applicant’s misconduct]…on the two dates in question occurred in dissociative states in a man who was additionally psychologically quite unwell with severe major depression. I think that it is likely that such dissociative episodes were involuntary and that during such states [the applicant] experienced impaired consciousness that deprived him of the will to act.
Other experts agreed it was inappropriate to diagnose the applicant as suffering from a dissociative disorder. Dr Ljubisavljevic acknowledged dissociative episodes could occur in someone who was unwell, but pointed out dissociative episodes were uncommon in individuals with adjustment disorder. She added that even if the applicant did experience dissociative episodes, the episodes did not result in automatism where the individual lost control of his or her actions (exhibit 1 vol. 2, at p 525-526). She accepted the applicant might not have a clear recollection of what he did in a dissociative state (exhibit 1 vol. 2, at p 527). But Dr Ljubisavljevic went on to argue the applicant would, in such an event, retain the capacity to exercise moral judgment (exhibit 1 vol. 2, at p 528). Professor Grant expressed essentially the same view in the course of a detailed report (exhibit 1 vol. 2, at p 475). He repeated those views in an additional report (exhibit 1 vol. 2, at p 492) where he explained:
The lack of ability to recall actions does not equate with a lack of voluntariness at the time of the actions. Dissociation may result in lack of recall of behaviour but the actions carried out are not without motivation and direction at some level in the individual concerned. Depression may impair concentration and memory but generally would not remove responsibility for one’s actions unless that depression reaches a very severe level, usually involving psychotic symptoms.
Professor Grant went on (exhibit 1 vol. 2, at p 492) to conclude the applicant’s mental impairment was sufficient to avoid criminal responsibility but explained that conclusion was reached on the basis “criminal responsibility is the relevant issue rather than voluntariness”. That conclusion was fair enough given the purpose of the assessment, but my inquiry is not concerned with the applicant’s criminal culpability. I must have regard to voluntariness. The reports of Professor Grant and Dr Ljubisavljevic do not suggest the applicant was unable to control his actions, even if there was some impairment in his judgment and recollection as a consequence of his psychiatric condition. I was particularly impressed with Dr Ljubisavljevic’s careful discussion in her report of the likely severity of any dissociative state. Dr Ljubisavljevic noted the applicant could be recalled from a dissociative episode when his wife telephoned, which suggested the episodes were mild (exhibit 1 vol. 2, at p 528).
The evidence of Professors Middleton and Grant was generated for a specific purpose – namely, to determine whether the applicant was criminally responsible for his misconduct. The focus of my inquiry, as I have explained, is different. The evidence of Dr Ljubisavljevic (which is not contradicted on this point) suggests dissociative states are relatively unusual in connection with the applicant’s diagnosed work-related conditions. But even if I were satisfied dissociative episodes occurred, I would need to be satisfied they were of sufficient severity to seriously compromise the applicant’s control over his actions before I could be reasonably satisfied the misconduct was properly attributed to the work-related condition. I am inclined to prefer the evidence of Dr Ljubisavljevic who had the benefit of reviewing all of the material provided by Professors Middleton and Grant, and who focused on the question the applicant wants me to answer in these proceedings. In all the circumstances, I am not satisfied the applicant’s misconduct was properly attributed to his work-related condition.
WAS THERE AN AGGRAVATION OF THE APPICANT’S CONDITION?
The applicant also argues Comcare is liable for an aggravation of his work-related condition, but the claim is misconceived.
I am not satisfied the evidence establishes the applicant experienced an aggravation of his symptoms. The preponderance of the medical evidence suggests the applicant was already seriously unwell by November 2008 when the misconduct came to light and he sought treatment. That is the starting point of the evidence of Professors Middleton and Grant who considered whether the applicant’s misconduct in mid-2008 was attributable to his work-related psychiatric condition. Indeed, the applicant’s whole argument about diminished capacity during that period assumes he was already suffering from adjustment disorder and major depression. There is no suggestion in the evidence of those two experts that there were symptoms of any other work-related condition.
I note Dr Ljubisavljevic had a different take on the applicant’s condition in her report (exhibit 1 vol. 2, at p 529). Dr Ljubisavljevic considered whether the applicant might not have actually experienced depression until after his misconduct came to light and his employer commenced the criminal investigation in late November 2008. But that conclusion does not mean the applicant’s accepted condition was aggravated: it is simply a potential difference of opinion as to the timing of onset of the accepted condition which was described as adjustment reaction with mixed emotional features and major depressive disorder single episode. The evidence suggests the applicant suffered from what appears to be a single complex condition that grew in intensity as his condition deteriorated throughout 2008.
CONCLUSION
The applicant was clearly very unwell throughout 2008, and he was under siege after his misconduct came to light towards the end of that year. It is accepted his psychiatric condition was work-related for the purposes of s 14 of the SRC Act, but for the reasons I have discussed I am not satisfied that condition resulted in incapacity. That means I must affirm the reviewable decision with respect to s 19 which was the subject of proceedings in files numbered 2013/3113 and 2013/3659. I am also unable to conclude the applicant experienced an aggravation of his condition, which means I must affirm the reviewable decision which was the subject of application number 2014/2874.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe .................................[Sgd].......................................
Associate
Dated 30 September 2015
Date of hearing 17 April 2015 Date final submissions received 20 July 2015 Applicant In person Counsel for the Respondent Mr A Dillon
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