Karabolovska and Comcare (Compensation)

[2019] AATA 1346

Karabolovska and Comcare (Compensation) [2019] AATA 1346 (3 June 2019)

Division:GENERAL DIVISION

File Number(s):      2018/0353, 2018/0368

Re:Rosa Karabolovska

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:3 June 2019

Date of written reasons:        18 June 2019

Place:Sydney

For the reasons given orally on 3 June 2019, the Tribunal affirms the following reviewable decisions:

1. reviewable decision dated 6 December 2017 that affirmed a Determination dated 11 October 2017, which ceased liability for medical treatment and incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act)

2. reviewable decision dated 6 December 2017 that affirmed a Determination dated 14 November 2017, which denied liability for ‘aggravation of vision impairment (bilateral)’ under section 14 of the SRC Act.

...............................[SGD].........................................

Mrs J C Kelly, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – whether Respondent is liable for aggravation of vision impairment (bilateral) – contemporaneous documentation does not support Applicant’s account of history – decision affirmed - Respondent previously accepted liability for aggravation of major depressive order - whether the Respondent is presently liable to pay medical expenses and incapacity payments in respect of previously accepted liability – Applicant has underlying psychological condition – exacerbation from work related injury has ended – decision affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

18 June 2019

1. The following are the Tribunal’s reasons in the two matters of Rosa Karabolovska and Comcare 2018/0353 and 2018/0368.

2. There are two questions in this case for the Tribunal to answer. The first is whether on 11 October 2017 or thereafter the Applicant, Ms Karabolovska, had no present entitlement to the payment of compensation under sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act), for aggravation of major depressive disorder, recurrent episode (the accepted condition). The Respondent, Comcare, which includes its delegate, the Australian Taxation Office (ATO), accepted liability for that condition under section 14 of the Act on 13 June 2014.

3. The second question to be answered is whether Comcare is liable under section 14 of the Act to pay compensation to the Applicant for aggravation of vision impairment (bilateral), suffered on 25 February 2014 (the claimed eye condition).

4. Both claims arise from a telephone call the Applicant made at about 9:00 am on 25 February 2014 to a tax payer in the course of her employment with the ATO (the incident).  The call lasted about one hour and included the taxpayer threatening to commit suicide.

5. Ms Karabolovska was born in January 1969 and married in 1991.  She has two sons who were born in 1992 and 1995.  She had left calf neurofibroma in 2004 and had surgery.  In 2005 she was referred to Dr Pakula, a psychiatrist, by her pain specialist, Dr Davidson.  Dr Pakula diagnosed major depression and chronic pain.  She consulted Dr Pakula regularly until at least 2016 when there was some period when she did not.  She has returned to him more recently for treatment.

6. Ms Karabolovska ceased work in 2007 and did not work again until she commenced an entry level job with the ATO in June 2013 and was subsequently promoted at a date unknown to APS2.  That promotion was before the incident.

7. Ms Karabolovska had one or two days off work immediately after the incident and then worked in alternative duties for her ordinary hours, 25 hours per week, until May when she reduced her hours to 15 a week and then ceased working shortly thereafter.  Ms Karabolovska’s superannuation fund approved her application for invalidity retirement on 12 November 2015 “because of any physical or mental condition, she is unable to perform her duties, she will be entitled to invalidity benefits under the [Public Sector Superannuation Accumulation Plan]”.  Her exit date from the ATO was 4 December 2015.

8. Ms Karabolovska claimed permanent impairment in relation to her psychiatric condition around the beginning of June 2016.  The application was refused on 3 April 2017 because a decision-maker considered that she had not sought optimal treatment.

9. On 15 August 2017, Comcare issued a notice of intent to cease liability because medical evidence suggested that there was no present liability to pay compensation for medical treatment under section 16 of the Act and incapacity payments under section 19 of the Act in respect of the accepted condition.

10. The Tribunal first addresses the eye condition.  The undisputed evidence was that Ms Karabolovska did not wear glasses before the incident.  The expert evidence about her eye condition before the hearing was based on her history that she experienced symptoms of disoriented and blurring vision immediately after the telephone call on 24 February 2014.  Dr Delaney, an ophthalmologist, provided an opinion at the request of the Applicant’s legal representatives.  It was:

    Ms Karabolovska suffered a significant traumatic episode, which has accelerated and exacerbated the onset of her presbyopia and underlying low-grade hypermetropia refractive error resulting in her need to obtain spectacles.  It was her choice to obtain multifocal glasses for convenience even though her distance vision was still normal at 6/6 without a correction.  The need for the reading addition was undoubtedly due to the precipitation of the onset of presbyopia.  These physiological refractive errors will slowly progress over a period of five to ten years before totally stabilising, but these changes are entirely due to normal physiological changes and apart from the precipitation of the onset of them, all other changes and refractive errors are due to normal physiological changes that would have occurred anyway.

11. The Tribunal accepts the disagreements Dr Delaney has with Ms Bilton, a behavioural optometrist, and gives little weight to her opinion where it differs from his.

12. The written evidence of Dr Michael Steiner, ophthalmologist, was to a similar effect to that of Dr Delaney.  Dr Steiner stated that:

    [Ms Karabolovska] had a psychological episode which caused decompensation of the accommodation process of her eyes causing blurred vision.  The episode precipitated her visual blurring but did not cause it and she is actually now from a visual point of view and taking her aging into consideration, no worse off than if the incident had not occurred.

13. The contemporaneous documentation did not support Ms Karabolovska’s history, repeated in her oral evidence to the Tribunal, that she has suffered immediate visual blurring after the incident such that she was unable to read her computer screen and had to seek advice about increasing the size of the font.

14. The contemporaneous documentation shows that she made no complaint of visual difficulties until an Initial Needs Assessment was carried out by a rehabilitation provider on 26 March 2014.  She attended an optometrist on 27 March 2014.  In the interim, Ms Karabolovska had attended her local GP practice on the day of the incident and again on 15 March 2014 to obtain a medical certificate for the two days off work due to anxiety and insomnia related to the incident.  She also lodged a claim for workers’ compensation on or about 19 March 2014 which did not mention visual difficulties.

15. The Tribunal has taken into account the evidence of Dr Champion during cross-examination that it is understandable that Ms Karabolovska did not mention visual difficulties when she attended her GP practice on the day of the incident.  However, that evidence does not explain why it was not mentioned the next time she went to the practice or when the claim for compensation was made.

16. An additional piece of evidence that the Tribunal has taken into account was that an optometrist examined Ms Karabolovska in August 2012 and recorded that the near focussing of the accommodation muscles was reduced and noted early signs of presbyopia. 

17. Dr Delaney maintained his opinion when the contemporaneous history was put to him.  Dr Steiner did not.  Dr Steiner said that the only reason he said that the symptoms had been precipitated by the episode was because Ms Karabolovska had told him that immediately afterwards she had suffered blurring.

18. The Tribunal prefers the evidence of Dr Steiner to that of Dr Delaney. It did not consider that Dr Delaney gave real consideration to the very different history put to him. The Tribunal does not accept that the incident caused an aggravation of vision impairment (bilateral). For those reasons the Tribunal affirms the reviewable decision made on 6 December 2017 which affirmed the determination dated 14 November 2017 which denied liability for aggravation of vision impairment (bilateral) under section 14 of the Act.

19. The Tribunal now turns to the question of major depressive disorder, recurrent episodes.  That is, the accepted condition.  Comcare has had Ms Karabolovska assessed by five different psychiatrists since the incident.  The first was Dr Richard Burek who assessed Ms Karabolovska on 19 May 2014 and prepared a report dated 27 May 2014.  He listed the material that was made available to him as copies of the relevant reports, case summary and schedule of questions.

20. Dr Burek concluded that Ms Karabolovska had a relapse of her major depressive episode which had waxed and waned since onset in 2004 and had worsened since the incident.  He also described it as an aggravation of a preceding or underlying condition.  Dr Burek wrote that Ms Karabolovska’s major depressive disorder had not ceased and that the aggravation caused by the incident had not ceased either.  He reported that Ms Karabolovska stated that she had an improvement in her symptoms from June 2013 until February 2014.  Dr Burek listed as the clinical signs and symptoms which support his opinion that Ms Karabolovska had told him since the incident she has slept badly, had trouble concentrating, having impaired vision, has palpitations, startles easily, has headaches, is forgetful, has irritable mood, shortened sleep and diminished appetite. 

21. Dr Burek listed neurofibromatosis and associated pain and disability as a major factor in Ms Karabolovska’s situation.  Other factors contributing to her conditions included multiple deaths in the family in the last two years, moving into a new house, and financial reversals in 2013.  He recorded that she said that since the incident she had restarted the antidepressant Lexapro 20 milligrams and then increased it to 40 milligrams.  He recommended that she continue to see a psychiatrist every six weeks and did not consider she needed any psychological input because she had tried her employer’s employee assistance program counselling three times and found it distressing.

22. He stated that Ms Karabolovska will probably have required treatment irrespective of her employment with the ATO.  He also specified a limited time when he expected that exacerbation to continue.  He provided a supplementary report dated 29 July 2014 about yoga and massage treatment modalities for psychological injuries which does not assist the Tribunal in its present task.

23. Dr Zsadanyi assessed Ms Karabolovska on 5 August 2014 and wrote a report dated 19 August 2014.  The purpose of the assessment was to determine Ms Karabolovska’s capability for continuing a rehabilitation program.  His opinion was that she did not have the capacity to undertake such a program involving a return to work for at least a three month period and recommended a reassessment at that time.  Dr Zsadanyi wrote:

    Currently she is not working and this is probably because she presents as being moderately depressed with high levels of anxiety.  The precipitator appears to be the incident at work in February 2014.  Premorbidly she had a history of depression and Ms Karabolovska presents as being a woman who is somewhat fragile and vulnerable with decreased resilience and poor coping skills.

24. Dr Geoff McDonald assessed Ms Karabolovska on 23 December 2014 and wrote a report dated 16 January 2015.  He reassessed her on 19 June 2015 and wrote a report dated 23 June 2015.  In his 16 January 2015 report, Dr McDonald stated that he had access to Dr Zsadanyi’s 19 August 2014 report, a report from Ms O’Garr, a psychologist, dated 29 September 2014 and from Ms Jarman, a psychologist, dated 15 December 2014.

25. Dr McDonald reported that Ms Karabolovska’s progress is guarded and that on the balance of probabilities she would be likely to remain very anxious and depressed with significant result in impairment for about the next two years.

26. In his 23 June 2015 report, Dr McDonald noted that he had a report from Ms Jarman and information from interviewing Ms Karabolovska.  He stated that on the balance of probabilities it appears likely that Ms Karabolovska would remain very anxious and depressed with significant resulting impairment for at least the next two years.  He also expressed the opinion that she was likely to remain medically unfit for further rehabilitative effort.

27. Dr Zsadanyi reassessed Ms Karabolovska on 18 October 2016, prepared a report dated 14 December 2016, and completed a form in relation to Ms Karabolovska’s claim for permanent impairment and non-economic loss.  He was provided with a claim summary and a schedule of questions.  He considered that Ms Karabolovska had a permanent impairment with a degree of permanent impairment of 10 per cent under Table 5.1 of the Guide to the assessment of the degree of permanent impairment.  He agreed with the ratings Ms Karabolovska has provided in a non-economic loss questionnaire.

28. Dr Kipling Walker assessed Ms Karabolovska on 26 April 2017 and prepared a report dated 1 August 2017.  He was provided with a claim summary, a schedule of questions which included additional information, and he interviewed Ms Karabolovska.  He gave oral evidence during the hearing and said that he was not the quickest in finishing reports and noted the implication for a person’s income.  He had provided a letter dated 16 August 2017 in which he wrote that he had spoken to Dr Pakula on the previous day and he agreed that the injury suffered in February 2014 was no longer affecting Ms Karabolovska.  Dr Pakula denies that he said that.  The Tribunal gives no weight to Dr Walker’s version of that conversation.

29. Dr Walker’s opinion was that Ms Karabolovska’s current symptoms were not due to the incident, the temporary aggravation ceased sometime after May 2014, Ms Karabolovska is predisposed to psychiatric conditions and it is likely that her current symptoms and conditions represent the natural progression of her pre-existing condition.

30. Dr Champion assessed Ms Karabolovska on 6 July 2018 and wrote a report dated 9 July 2018.  He was provided with similar material to that provided to Dr Walker in 2019, referred to below.  He agreed with Dr Walker’s assessment that the incident was a relatively mild stressor and explained why.  Dr Champion’s opinion was that was some level of exacerbation in Ms Karabolovska’s previous symptoms would be expected as a result of the incident, as would resolution over a period of days or weeks and pre-existing anxiety and depressive symptoms would be expected to continue after the incident as they had before.

31. Dr Walker prepared a supplementary report dated 27 March 2019.  He did not reassess Ms Karabolovska.  He was provided with voluminous additional information to consider, including documents produced under summons by Ms Karabolovska’s general practice, Dr Pakula, Ms Jarman, Ms Trikkis, optometrist, Ms Bilton and Dr Serisier, the T documents and reports from Drs Jones, Delaney, Steiner, Champion and the statements of Mr Karabolovski and Ms Karabolovska.

32. Dr Walker maintained his opinion that the effects of the incident should have ceased in May 2014 after which Ms Karabolovska was not at work for the ATO.  He essentially maintained that position during his oral evidence.

33. There was copious documentary evidence from Dr Pakula from 2005 to date.  That is, Dr Pakula being her treating psychiatrist during that period.  His opinion is that Ms Karabolovska’s current symptoms are caused by the incident. 

34. Dr Matthew Jones wrote a report dated 30 April 2018, having assessed Ms Karabolovska before that date.  In his opinion, Ms Karabolovska found the incident at work highly traumatising and it triggered a deterioration in her mental state and an exacerbation and /or relapse of her longstanding depressive illness and her anxiety also increased and continues.

35. He provided a brief supplementary report dated 30 April 2018 in which he set out his opinion that on the balance of probabilities but for the incident, Ms Karabolovska would likely be in some form of gainful employment.  He maintained those opinions during his oral evidence.

36. The evidence included various reports and records from psychologists, including evidence from Ms Jarman who treated Ms Karabolovska from June 2014 until 2016 and again recently also gave oral evidence. 

37. It is not in dispute that Ms Karabolovska had a pre-existing condition and has no current capacity for employment.

38. Ms Karabolovska’s counsel emphasised during submissions that Drs Walker and Champion disregarded the fact that Ms Karabolovska had been able to return to work at the ATO prior to the incident, obtained a promotion, and has not been able to work since the incident.  He argued that the preponderance of medical evidence supported her case.  He described Dr Walker as a gun for hire, gave reasons for that, and criticised Dr Champion for not engaging with questions, providing a very strange report, and for undermining Dr Pakula by referring to him as an advocate and providing an article on the subject.

39. The Tribunal assesses the evidence before it.  The Tribunal finds that the evidence of Mr Karabolovski and Ms Karabolovska is not reliable.  That is not a criticism of either of them.  They have been living with Ms Karabolovska’s condition since at least 2005.  Ms Karabolovska firmly attributes the symptoms she has suffered since the incident including her vision symptoms to that incident.  She has consistently minimised her symptoms prior to the incident.  Years have now lapsed since the incident.  Ms Karabolovska does continue to suffer symptoms.  The Tribunal accepts that she has self-harmed since the incident which she had not before the incident.

40. The contemporaneous evidence about the medications being prescribed and whether she is taking them or not is inconsistent with her evidence about when she was or was not taking medications. The Tribunal accepts that she does not like taking medications because of the side effects. 

41. Mr Karabolovski’s accounts of what Ms Karabolovska did at home were inconsistent with her contemporaneous reports to doctors.  During his oral evidence he was unable to recall how she was during a particular time and a particular year.  The Tribunal repeats, it is not criticising either Ms Karabolovska or Mr Karabolovski in relation to their evidence.

42. The Tribunal found Dr Champion’s report to be a comprehensive consideration of the medical evidence and very persuasive.  It supports the opinion expressed by Dr Walker.  The Tribunal accepts that Dr Pakula’s evidence is not objective.  That is again, not a criticism of Dr Pakula.  He has been in a therapeutic relationship with Ms Karabolovska since 2005 which he seeks to maintain.  The analysis of his evidence demonstrates that his opinion that Ms Karabolovska was in remission prior to the incident is not objective and is inconsistent with his clinical notes.

43. The Tribunal does not accept that remission is an appropriate description of Ms Karabolovska’s condition prior to working for the ATO or prior to the incident.  The Tribunal also takes account other aspects of Dr Pakula’s evidence commented on by Dr Champion.  In addition to Dr Champion’s comments on the evidence of other doctors, the Tribunal finds that Drs Burek, Zsadanyi and McDonald were provided with limited information upon which to form their views apart from the information obtained from Ms Karabolovska during the assessments which was unreliable.

1. It also notes that their evidence is consistent with that of Dr Champion in expecting that the exacerbation would end and that Ms Karabolovska would continue to suffer from what might be described as her underlying condition.  It was not clear whether Dr Jones had all of Dr Pakula’s clinical notes up to the time of the incident.  He did not refer to clinical notes for 15 November 2014 or 23 January 2014.

2. The Tribunal accepts Dr Champion’s description of the incident as a relatively mild stressor.  That Ms Karabolovska returned to work after one or two days off, did not see a medical professional from the day of the incident until she sought a medical certificate on 15 March 2014 for those two days off and then worked her usual hours, although in alternative duties, supports that conclusion.  It is unfortunate that Comcare did not look closely at the facts of this case some years ago.

3. For the above reasons the Tribunal affirms the reviewable decision dated 6 December 2017 which affirmed the determination dated 11 October 2017 which ceased liability for medical treatment and incapacity under sections 16 and 19 of the Act.

I certify that the preceding 46 (forty - six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[SGD]..................................

Associate

Dated: 18 June 2019

Date(s) of hearing:	28-31 May, 3 June 2019
Counsel for the Applicant:	Mr L Robison
Solicitors for the Applicant:	Mr J Rzetelski, West Legal & Associates
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Mr B O'Brien, Moray & Agnew Lawyers