Kay and Comcare
[2006] AATA 50
•25 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 50
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/734, Q2004/735
GENERAL ADMINISTRATIVE DIVISION )
Re AMANDA KAY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date25 January 2006
PlaceBrisbane
Decision The Tribunal:
1. Sets aside the decision under review and substitutes its decision that the respondent is liable to pay compensation to the applicant for adjustment disorder with mixed anxiety and depression under section 14 of the Act and for permanent impairment under section 24 of the Act;
2. Remits the matter to the respondent with the direction to calculate the applicant’s entitlements in accordance with its decision; and
3. Orders that the respondent pay the applicant’s costs of these proceedings in accordance with the general practice direction.....................[Sgd]..........................
RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – adjustment disorder with mixed anxiety and depression – condition attributable to employment with the Australian Antarctic Division at Mawson Station – applicant continuing to suffer permanent impairment from the condition – compensation payable for permanent impairment at 10% under table 5.1 of the Guide to the Degree of Permanent Impairment – calculation of compensation remitted to respondent – costs awarded in accordance with general practice direction.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24 and 28
Administrative Appeals Tribunal Act 1975 s 37
Australian Postal Corporation v Oudyn (2003) FCA 318
Rosillo v Telstra Corporation Limited (2003) FCA 1628
Hart v Comcare [2005] FCAFC 16
Rodriguez and Telstra Corporation Ltd. (2002) FCA 1400
Wiegand v Comcare (2002) 72 ALD 795
Filla v Comcare (2001) 115 FCR 144
Comcare v Emery (1993) 32 ALD 147REASONS FOR DECISION
25 January 2006 Mr RG Kenny, Member 1. Amanda Kay was employed by the Australian Antarctic Division from 9 September 1996 until 23 January 1998. After a period of training in Tasmania, she spent the winter of 1997 at Mawson Station in Antarctica. She returned to Australia on 11 November 1997 and, on the following day, completed a claim for rehabilitation and compensation, in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Her claim was in respect of a condition which she described as “depressive reaction with personality and behavioural problems”.
2. On 15 January 1998, Comcare Australia (the respondent) accepted liability for an “episode of major mood disorder” and determined that liability for the condition was to cease from 23 January 1998, the date on which Ms Kay’s employment by the Australian Antarctic Division was to end. On 17 July 2003, Ms Kay completed a claim for compensation for permanent injury. On 29 August 2003, this claim was rejected by the respondent but it was noted that Ms Kay had sought reconsideration of the original decision to cease liability from 23 January 1998. On 17 December 2003, the respondent affirmed the decisions to cease liability from 23 January 1998 and to deny the claim for permanent impairment.
3. On the basis of the decisions of the Federal Court in Australian Postal Corporation v Oudyn (2003) FCA 318 and Rosillo v Telstra Corporation Limited (2003) FCA 1628, a further determination was made by the respondent on 24 August 2004. There, the respondent varied the original decision of 15 January 1998 and determined that Ms Kay had suffered a temporary aggravation of a pre-existing condition, namely borderline personality disorder; that this had resolved by 23 January 1998; and that any subsequent incapacity that she suffered was related to her pre-existing condition only. On that basis, it was determined that the respondent was not liable to pay compensation for medical treatment under section 16 of the Act or incapacity payments under section 19 of the Act. The respondent further determined that any continuing impairment that Ms Kay suffered was unrelated to the compensable condition but, rather, was a result of the pre-existing condition of borderline personality disorder and it was determined that compensation was not payable for permanent impairment under sections 24 or 27 of the Act.
4. Initially, Ms Kay sought review of the decision of 17 December 2003 by the Administrative Appeals Tribunal (the Tribunal) but that has been continued as an application for review of the decision of 24 August 2004.
Hearing
5. Ms Kay was represented by Mr S Whybrow and the respondent was represented by Ms E Ford. Material taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the “T” Documents – T1 to T29).
Issues and Legislation
6. Section 14 of the Act provides that the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment. In subsection 4(1) of the Act, the term “injury” is defined to include a disease and, in turn, that term is defined to include any ailment or aggravation of any such ailment contributed to in a material degree by the person’s employment. As noted above, the respondent has accepted liability under section 14 for the temporary aggravation of a pre-existing borderline personality disorder and the issue for the Tribunal is whether the respondent is liable, in respect of that condition, to pay compensation for medical treatment under section 16 of the Act, incapacity payments under section 19 of the Act, or compensation for permanent impairment under sections 24 and 27 of the Act.
Submissions
7. The parties made written submissions in this matter.
8. For the respondent, it was submitted that Ms Kay suffered from a psychiatric condition prior to her period of employment in Antarctica. This was a borderline personality disorder. Whilst conceding that events in Antarctica impacted upon Ms Kay, the respondent contended that this merely caused the pre-existing condition to undergo an aggravation which was temporary and which has now resolved. It was also submitted that the aggravation was a result of the failure by Ms Kay to obtain a benefit in connection with her employment and, as such, was not compensable under the Act. This latter submission relied on the definition of “injury” in section 4 of the Act which excludes a disease suffered by an employee as a result of the failure by the employee to obtain a benefit in connection with employment.
9. The respondent submitted that the medical evidence relating to Ms Kay on her immediate return from Antarctica indicated that the condition had resolved and any subsequent manifestation of psychiatric symptoms was a result of the original borderline personality disorder rather than any employment-related temporary aggravation. In that sense, it was submitted that Ms Kay does not suffer from any incapacity or permanent impairment as a result of her employment. It was further submitted that, even if she is still manifesting symptoms of a psychiatric state, the extent to which this affects her is not greater than 10% under table 5.1 in the Guide to the Assessment of Degree of Permanent Impairment (the Guide).
10. For Ms Kay, it was conceded that there were difficulties in describing the precise nature of the psychiatric condition from which she suffers. However, it was submitted that the evidence points to an absence of any pre-existing psychiatric condition prior to her employment in Antarctica. It was noted that one practitioner opined that there was a pre-existing condition but it was contended that the weight of the medical evidence was against this. Reference was made to the psychiatric testing which was undertaken prior to Ms Kay’s selection for the expedition. It was submitted that the stressors of her employment in Antarctica were responsible for the psychiatric condition she developed whilst at Mawson Station and which has continued since then.
11. It was submitted for Ms Kay that the discrimination or harassment displayed by her supervisor in Antarctica made a significant contribution to the development of her condition and it was also submitted that, even if there had been no actual discrimination or harassment, it was sufficient that Ms Kay believed that it was occurring and that this perception was sufficient to establish the causal association under the Act. It was submitted that Ms Kay now suffers permanent impairment as a result of her condition. It was also submitted that the level of incapacity that she suffers constitutes a 25% whole person impairment under the relevant table in the Guide.
Evidence Relating To Matters Prior To Antarctica
12. Ms Kay was born in July 1972. She lived and went to school in Canberra to Year 11 level. In 1992, she then completed a carpentry apprenticeship which was normally of 4 year’s duration but she performed well and completed the course in 3 years. This was despite a difficult personal relationship which affected her health in 1991.
13. During her apprenticeship, Ms Kay became involved in a project named “1990 Trades Women on the Move” which was an initiative of the government of the Australian Capital Territory. Evidence was given by Judith Pabian who was the co-ordinator of the project. She had known Ms Kay from when she was a young child. Ms Kay prepared material about her apprenticeship and delivered presentations to female students at various high schools and colleges in the Australian Capital Territory. Ms Pabian described Ms Kay as a well-adjusted person at that time who was happy with her life and her life choices, who was very reliable and who performed extremely well in the activities of the project. Indeed, Ms Pabian said that she was the best performed of the trades people in the project and carried an increased level of responsibility because of this.
14. Ms Kay wanted to be self-employed and she achieved this by travelling to various parts of Australia including Queensland, the Northern Territory and Western Australia where she engaged in many short-term working contracts. From when she qualified as a carpenter, she made annual applications to the Australian Antarctic Division to work in Antarctica and, in 1996, she was pre-selected for the 1997 Australian National Antarctic Research Expedition (ANARE). At the time, she was working in Port Headland in Western Australia and was required to travel to Perth to undergo various trade competency tests as well as psychiatric testing to assess her suitability. Having been successful in these, she then travelled to Tasmania where, in Hobart, she underwent pre-expedition training from September 1996.
15. James McLean was a fellow expeditioner. He met Ms Kay during the pre-departure training in Hobart. His impression of her was that she was a funny and generally happy sort of person and he looked forward to working with her in Antarctica.
16. Malcolm Brown was the instructor in a five day shot-firer’s course which was part of the pre-departure training. The course comprised both theory and practical tests in the use of explosives and he described Ms Kay as being disruptive in class. He said that she was irresponsible and immature and, although she managed to pass all of the examinations, he did not recommend that she be licensed as a shot-firer. Mr Brown said that, over a 14 year period of training expeditioners, this was the only occasion when he had done this. Subsequently, the issuing authority did not grant a licence to Ms Kay.
17. Janet Reynolds was a medical practitioner who attended the same pre-departure course as Ms Kay. Her Antarctic experience was at Casey Station rather than at Mawson where Ms Kay remained for the winter. For eight weeks during the pre-departure training period, Ms Reynolds shared a two-bedroom flat with Ms Kay. She described Ms Kay as a difficult person to live with in that she disregarded the interests of other people, would smoke cigarettes in the flat and would borrow items even after being told not to. She said that Ms Kay frequently stayed out late at night and drank alcohol to excess. She noted that Ms Kay was proud of her sexual exploits and she considered that she was unstable in her personality although she did not attempt any formal diagnosis because she was not her treating doctor.
18. Dr Reynolds did not report her concerns to Australian Antarctic Division but did speak with Dr Goddard who was to be the medical practitioner in Antarctica. Dr Reynolds had previously been on an Antarctic expedition and was aware of the particular stress that isolation during winter can impose. However, she was aware that Ms Kay would be in Antarctica for some months before winter set in and would be given an opportunity to return to Australia if she did not cope with the situation.
19. Kerryn Kaefus, Ms Kay’s mother, described her, in her early years, as being high-spirited and adventurous. She said that Ms Kay had no developmental problems at home or at school. She saw her approximately each week during her apprenticeship and remained in telephone contact with her after she left Canberra and was working in various parts of Australia. She described her as being idealistic about going to Antarctica. She also maintained contact with her by email and telephone during the Antarctic experience. Ms Kaefus denied that Ms Kay demonstrated anger to any extent outside of a normal range. She agreed that there had been some issues between her and her younger brother when she was young but that, again, these were not outside the normal limits of brother and sister relationships. She was aware of the problems she was having in Antarctica and went to Hobart to meet her on her return. At that stage, she thought that Ms Kay was no longer depressed and gave the impression that she had escaped from something. Ms Kaefus said that, since then, Ms Kay gets angry when she is reminded of her Antarctic experience. She said that she has been known to fly into a rage, threaten herself with self-harm and to have engaged in self-harming conduct such as bashing her head against a wall.
20. Mr A J Cotton is director of psychology with the Department of Defence and he provided evidence of the nature of the pre-expedition testing undertaken to assess Ms Kay’s suitability to be part of ANARE. He described the test instruments as being designed to assess suitability to the particular role in and the over-arching challenges of ANARE expeditions rather than for diagnosing any psychiatric conditions that may be present in the person. He agreed that the testing results depended upon the honesty and integrity of the person being tested. However, he also said that the tests have inbuilt mechanisms for testing validity of responses. He said that it would not be normal for a psychologist conducting the tests to be duped by a person although he conceded that a person with a borderline personality disorder may be capable of, nevertheless, performing well on the tests. Mr Cotton also said that, if a person was highly motivated to do well on the test by putting themselves in their best light for all responses, this would usually show up as the test was designed to detect such an approach. If this were done he considered that any indications of a borderline personality disorder would be revealed. He noted that the test results determined that Ms Kay was “suitable” but he confirmed that this recommendation of suitability did not relate to the presence or absence of any psychological conditions at the time.
Events in Antarctica
21. In the summer period, there were about 70 people at Mawson Station and Ms Kay fitted in well with the others and had no problems adjusting to station life at that time. She felt “more fragile” when the summer people left and, as that time approached and the daylight hours shortened, she became unsure of herself and had great difficulty in getting to sleep. She was often tired and irritable. Ms Kay said that, when not working, she engaged in photography and wrote letters to various schools with which she had an association. Occasionally, she was able to go on a “jolly” which was an expedition on the ice. However, she said that the main social activity on the station was centred around the bar which she frequented often and in which she consumed a lot of alcohol.
22. Ms Kay’s supervisor was Stuart Hodges. She felt that he allocated the less important tasks to her and required her to clean up after other tradesmen. She said that her relationship with Mr Hodges deteriorated and she often chose not to go to work but to stay in her room. She believed that people were making disparaging comments about her behind her back and she also recalled the description of her as a “woman haul” which was half a “man haul” or the amount of material a man could pack on a sledge. She interpreted it as a comment to the effect that she was not pulling her weight at work. Ms Kay said that she had been told that she was hopeless in her work and that Mr Hodges criticised her such that she felt useless. He also said things to indicate that she had to work twice as hard as a man because she was a woman and the first woman in Antarctica as a tradesperson. Ms Kay said that, in her previous work experience, she had been a contractor so that her working time was task-oriented rather than time-oriented. She attempted to have her hours adjusted so that she could attend the gymnasium but Mr Hodges required her to work the same hours as everyone else.
23. Ms Kay agreed that she liked to be the centre of attention and that she could become disappointed when she was not. She denied that she had resentment for authority figures although she said that she would make a stand if she did not agree with what she was told to do.
24. Stuart Hodges was Ms Kay’s supervisor until June 1997. He has been working as a carpenter for over 35 years. This was his sixth Antarctic expedition and his second at Mawson Station. Even before departing for Antarctica, Mr Hodges had formed the view that Ms Kay was immature for her age and he had some concerns about the manner in which she conducted herself, in particular her late nights, which appeared to affect her attendance and concentration even during the training period. He described the main difficulty that he had was with Ms Kay’s absences from work which occurred on numerous occasions from the start of her time at Mawson Station. Ms Kay usually attributed her lateness or absence from work to having had a “big night” involving alcohol consumption the previous day. He felt the need to offer some counselling to her because of her attitude to work and did so on an informal basis on about four times during which he spoke to her for approximately half an hour. There was never any formal counselling. He conducted regular team meetings, on a weekly or fortnightly basis, and Ms Kay did not attend these with any regularity.
25. Mr Hodges recalled that Ms Kay had sought to have a variation of her hours of work. In particular, she wanted to start at 5 am but he rejected this on the basis that the noise would be disturbing to others and because it was dangerous for a tradesperson to be working on a construction site alone. Mr Hodges considered that the carpentry skills of Ms Kay were consistent with her limited experience in the trade but he denied that she was given any jobs which were less important than those allocated to other tradespeople. He said that she was unhappy with most of the work assigned to her and he had the impression that she was expecting grander tasks than those which needed to be performed at the station. In the summer period, the primary work was maintenance and, in winter, it was mainly in construction. He said that Ms Kay was unhappy with both types of work. Mr Hodges denied that he was a perfectionist but said that he insisted on people under his supervision starting and finishing their work on time. He denied that he made her clean up after other tradesman to any greater extent than he did for others.
26. Mr Hodges denied that he had ever advised Ms Kay that she was setting the benchmark for all future women tradespeople or that he ever advised her not to go to the bar in her off duty periods. Mr Hodges denied that he had ever harassed Ms Kay or had yelled at her in relation to her work although he recalled one occasion when they both raised their voices during an exchange about her installation of curtains.
27. Mr Hodges said that, on social occasions, he got on reasonably well with Ms Kay and he could recall being involved in social activities such as playing volleyball with her.
28. Ian McLean was at Mawson Station when Ms Kay was present and worked as an electronics technician. He met her during the pre-embarkation period and described her as a fun loving person and he got on well with her. He became aware that she was having trouble with her work and she described Mr Hodges and her as being poles apart in personality. She had confided in him on one occasion that she was not getting on with Mr Hodges. He had not seen them working together and was not personally aware of any interchange between them. He was aware of general criticisms by others of Ms Kay. He said that, because there was only a small group of people at the station, approval of others was important and he felt that Ms Kay had been marginalised. He said that she drank excessively with increasing amounts as the year progressed.
29. Dr Goddard was the medical officer at Mawson Station. She first met Ms Kay during the pre-embarkation training and noted that she was generally outspoken, disruptive, extroverted and frequently affected by excessive alcohol consumption. Dr Goddard said that she had some training in psychiatry and was aware of the particular stresses that faced individuals during the wintering in Antarctica. She was aware that there was a strict screening process but she considered that Ms Kay was a poor choice. Dr Goddard agreed that there had been indications from her behaviour in Hobart that she might have had difficulties in Mawson Station but she said that this was all on the basis of retrospective wisdom. At Mawson, she became aware, particularly after the summer people left, that many of these traits continued and that she was often missing from work. Ms Kay said that her relationship with Dr Goddard did not start well because she had been ordered to take a pregnancy test and she did not feel that she should have to do this. Dr Goddard agreed that she had required Ms Kay to take a pregnancy test and that Ms Kay had resented the request. However, Dr Goddard said it was routine for all women to have the test.
30. Ms Kay consulted Dr Goddard in March 1997 when she was suffering from a migraine. She saw Dr Goddard again in May 1997 and advised her of the adverse treatment that she was receiving from Mr Hodges. Dr Goddard agreed that Ms Kay had described Mr Hodges in terms that he was victimising her. Dr Goddard said she had never observed any clashes between the two of them herself. Later in May, Dr Goddard contacted Dr Milton McArthur, the staff psychiatrist based in Hobart. On his advice, she commenced depression tablets in the form of Aurorix. Thereafter, Dr Goddard saw Ms Kay on a weekly basis and diagnosed her as suffering from a depressive reaction with personality and behavioural problems. Dr Goddard continued to monitor Ms Kay and noted her excessive alcohol consumption. Ms Kay continued to make complaint about Mr Hodges and, in June 1997, Dr Goddard discussed the matter with Bob Jones, the station leader, and it was agreed that Mr Jones would become her work supervisor. Dr Goddard said that this did not seem to effect any significant improvement in Ms Kay’s attitude to her work.
31. Ms Kay said that the Aurorix helped her but she was disappointed when, in August, she was advised by Dr Goddard that stocks were low and she would have to be taken off that medication. She was changed to Tryptanol. She said that Dr Goddard also gave her a counselling helpline number which she was able to access without having to make payments for the call herself. She said that, normally, telephone calls from Mawson Station were very expensive. She said that the counsellor was most unhelpful because he suggested that she should simply quit her job if she were having trouble in the workplace and this was totally impractical because she was at Mawson Station and could not quit or walk away. She subsequently received a phone call from the counsellor but, thereafter, was told that any further contact would be at her own expense.
32. Dr Goddard said that, in July and August 1997, Ms Kay continued to have the occasional alcoholic binge and continued to hide away in her bedroom although she socialised at some meals and parties in evening bar sessions. Dr Goddard said that she changed Ms Kay’s medication to Moclobemide but denied that this was solely because of low supplies of Aurorix. She agreed that there were limited supplies of that drug but said that Ms Kay had not improved on Aurorix and she wanted to change the medication regimen to see if it would have a better effect.
33. In September 1997, Ms Kay felt that the remaining three months of her period at Mawson Station provided an awful prospect for her and she believed that she would rather face death than go through it. She took an overdose of Panadol tablets. She locked herself in her room but Dr Goddard removed her to the medical centre. She did not want to go and was involved in a scuffle and, eventually, she was tranquilised. She woke up strapped to a bed in the medical wing with a needle in her arm. She said that a 24 hour watch was maintained over her and that this included men on the station which made her uncomfortable because she was required to effect her toilet activities in the bed.
34. Dr Goddard’s first awareness of the overdose of medication by Ms Kay came from a telephone call from another expeditioner, Dale Main. He saw her taking medication and Ms Kay had told him that she had taken lots of tablets and wanted to kill herself. Dr Goddard said that Ms Kay smelt strongly of alcohol, was being very loud and unco-operative but was eventually persuaded to take a dose of Ipecac which induced vomiting. An intravenous cannula was inserted and Dr Goddard commenced an infusion of acetyl cysteine. Dr Goddard said that Ms Kay attempted to remove the drip and needed constant observation and initial restraint of her arms. Dr Goddard said that the restraint was by people holding her arms and she not by other means. She said 24 hour observation was conducted by the Mawson Station staff but that Ms Kay was able to use the toilet during her recuperation period.
35. Graham Kelly was an electrician at Mawson Station. He first met Ms Kay in the pre-training period and he had concerns, based on her behaviour at that time, about her selection for wintering in Antarctica. Mr Kelly said that he got on well with Ms Kay socially but was not satisfied with the standard of her carpentry work. He often saw her in an inebriated state after attending the bar and was aware that she was often absent from work. He helped to support her on the way back to her room on several occasions when she was intoxicated.
36. Mr Kelly did not see any evidence of harassment by Mr Hodges of Ms Kay but was made aware by Ms Kay that she was making allegations against him. He also recalled an occasion when he was involved in filming a documentary for the Australian Broadcasting Commission in which he interviewed Ms Kay. During that time, Ms Kay had stated that the accusations she had made about Mr Hodges were wrong and that she was ashamed of herself for having made them. However, she also denied that she would apologise to Mr Hodges for having done so.
37. Mr Kelly was one of the carers appointed to look over Ms Kay after her overdose of tablets. He said that he was in the first group of carers and could not recall that she was strapped down. He denied that she was required to perform toiletry functions in bed and said that she would attend the toilet for these purposes.
38. Mr Kelly believed that Ms Kay should never have been sent to Antarctica and that the indications that she would be difficult and cause problems were apparent during the pre-embarkation period. He referred to the “K factor” which was commonly used to describe Ms Kay and he said that her activities, in particular in relation to her overdose of medication, split the station and many were not prepared to sit with her to prevent her from self-harming in her recuperation stage.
Post-Antarctica
39. Ms Kay’s departure from Antarctica was by the first available ship and several weeks earlier than originally planned. However, she was kept on payment by the Australian Antarctic Division until the end of her normal contract time on 25 January 1998. She said that she began to improve immediately she departed Antarctica and continued to do so on the voyage to Hobart. She arrived there on 11 November 1997 and was met by her mother. On the following day, she saw psychiatrist, Dr Milford McArthur, and lodged a claim for rehabilitation and compensation under the Act. She also lodged a workplace harassment claim against Mr Hodges.
40. In his report, dated 13 November 1997, Dr McArthur wrote:
“Her current condition is that she appears to have recovered from her mental state while at Mawson. She feels that her depression has lifted, the crying has stopped, she is no longer suicidal and has hope for her future. Apart from some irritability, her mood is now normal. She has a normal mental state.”
41. Dr McArthur canvassed possibilities of the underlying condition in Ms Kay and concluded that, despite the uncertainty in aetiology, she probably had a major mood disorder which had now resolved. However, he said that, for the future, she would have a risk of recurrence especially under stress of depression and suicidality.
42. Whilst in Tasmania, Ms Kay and her mother visited various tourist sites. She then travelled to Sydney to see her father and then to North Queensland where she purchased a block of land near Cairns. Ms Kay returned to her employment as a contract carpenter in Western Australia and the Northern Territory. She said she had difficulty with this because she had lost her self-confidence and faith in her own ability. In 1999, she went on a working holiday in South Africa where she carried out a range of occupations including bar work, tourist guide, horse breaker, motor mechanic, furniture repairer and carpenter. On return to Australia, she took up contract carpentry work in Canberra and in the Northern Territory. In the first 3 years after returning from Antarctica, Ms Kay did not undergo any form of psychiatric counselling or treatment. However, towards the end of 2000, she was involved in a physical altercation with her boyfriend and, as a result, attended a medical centre in Echuca and was admitted to hospital in Bendigo. A report was prepared by Mr K Yeang, hospital registrar, which referred to a period of hospitalisation from 17 to 20 December 2000. He wrote:
“This was her first psychiatric contact, although Amanda has a history of depressive episodes on the background of heavy alcohol consumption and persistent marijuana abuse, the main trigger this time was a recent relationship breakup. After a series of bitter arguments with her boyfriend, they ended up in physical fighting. Amanda apparently tried to save this relationship but became angry, physically abusive and aggressive. Her mental state then further deteriorated with symptoms of depression and suicidal ideation.”
43. The report noted that her first episode of depression and suicide attempt had been in Antarctica in 1997. Dr Yeang diagnosed adjustment disorder with depressed moods, alcohol abuse and borderline personality traits.
44. Ms Kay said that, after returning from Antarctica, she regularly drank alcohol to excess and attributed this to not being able to cope with the Antarctic experience. She said it was always in the front of her mind and made it difficult to relate to others. She said that she had real problems with anyone who reminded her of Mr Hodges. In particular, she had problems with people who were overly observant, pedantic, sarcastic or who appeared to be laughing at her. She said that, prior to going to Antarctica, she had been able to manage those sorts of people without difficulty.
45. Since 2001, Ms Kay has lived in the Cairns area, initially on her own property in a shipping container, and now in shared accommodation near Cairns. She registered with the Cairns Centrelink Office and is in receipt of income support payments. She has received psychological counselling through Centrelink. She has been seen by Dr Keith Muir, Dr Una Stephenson, Dr Tim Dewhurst and psychologists Melody Fior, Kevin Colahan and Dianne Forsyth.
46. Ms Kay said that she was still interested in doing some carpentry work and has done some contract work during 2005. This comprised work lasting three weeks replacing louvre windows with casement windows. She said that she would like to continue with this but that, because of the current level of medication she takes, her level of alertness is low and she is concerned about her safety in the use of power tools. Also, she said that the window changing job which she completed would only have taken her about one week if she were in the condition she had been in before she went to Antarctica.
47. Ms Kay has also been involved in singing and playing a guitar in a band known as “Administer the Medicine” which is based in Cairns. She commenced a TAFE course in Cairns in music but was unable to continue with this. In evidence were extracts from the web page entitled “K Music” which provides information about live performances of the band at the Cairns Yacht Club on 9 September 2005 and the Cairns Art Centre on 10 September 2005 as well as foreshadowing a brief trip down the Queensland coast in November 2005 to coincide with the release of the band’s albums The website also makes available CDs for purchase.
48. Ms Pabian, who had known Ms Kay before and during her apprenticeship, said that she had not had much involvement with her from that time until after she returned from Antarctica. She thought this was in December 2000 whilst, by chance, she and Ms Kay were both staying at Thredbo. Ms Pabian said that she saw her on three or four occasions during this time and she was very surprised at the significant change that had come over her demeanour from when she knew her during her apprenticeship days when she was involved with the “1990 Trades Women on the Move” initiative.
Medical Evidence
Dr Timothy Dewhurst
49. Dr Dewhurst is Ms Kay’s treating medical practitioner. He is in general practice but has completed five year’s of training in psychiatry and works extensively with primary care mental health. He has treated Ms Kay and seen her on a weekly basis since January 2004. He considered that she suffers from many of the elements of post traumatic stress disorder but without the precipitating event which is necessary for that condition. However, he believed that her perceptions of events in Antarctica were similar to such an event. He diagnosed adjustment disorder with mixed anxiety and depression. He agreed with other medical opinion that she was psychologically “stuck” in Antarctica and that she was not able to move on until she is able to resolve this issue. He denied that her history revealed any pre-existing borderline personality disorder and he had no doubt that her mental dysfunction was attributable directly to her experiences in Antarctica.
50. Dr Dewhurst said there was a phenomenon known “winter over syndrome” which was capable of afflicting people because of the isolation and confinement on a Station such as Mawson. He said that this was often characterised by depression, insomnia, irritability as well as a reduction in memory and that, if a person, in addition, perceived that a level of harassment was occurring this would coalesce in those symptoms and increase the adverse reaction. In Dr Dewhurst’s opinion, Ms Kay believed she was isolated and marginalised and that this was exacerbated by the absence of counselling that she received. He was aware that she had made telephone calls to a counsellor in Australia but that this had been of no assistance. He said, at that time, counselling would have helped by objectifying the whole process. He said that her attempted suicide entrenched her position because of the impact it had on others who found it distressing.
51. Dr Dewhurst described Ms Kay as a woman who had coped well with a carpentry apprenticeship to gain selection in the competitive environment in Antarctica which included a battery of psychological tests and who then rapidly decompensated during her stay there. He said that he was aware that, after she returned from Antarctica, she was engaged in contract carpentry work but he said that he had spoken to her about this and that there was no evidence of any functioning at higher levels. She was involved mainly in basic tasks. He also said that she found it increasingly difficult to carry on her work as a carpenter.
52. Dr Dewhurst noted that she had been unable to continue with her TAFE course in Cairns. He said that she had trouble attending classes and, ultimately, was required to leave the course. He was aware of Ms Kay’s musical activities and said that, at her invitation, he had seen her performing. He said that she performed well and he could see a different side of her personality but said that she slipped back into a restricted mood when she was not engaged in that activity. He described it as a “sterling effort” but one which was unlikely to bring her any success.
Dr William Knox
53. Consultant psychiatrist, Dr Knox, saw Ms Kay in July 2003. He prepared reports dated 4 July 2003 and 18 May 2004. He also gave oral evidence. Dr Knox diagnosed chronic adjustment disorder with mixed anxiety and depressed mood and denied that Ms Kay suffered from a borderline personality disorder which pre-existed her Antarctic experience. He considered that her condition resulted from that experience and identified her association with her supervisor, the nature of the tasks she was required to perform and the absence of appropriate counselling as being relevant. Dr Knox said that even the perception that she was being harassed in the context of the hostile environment of Antarctica, from which there was no escape, would be a sufficient causal factor in the development of an adjustment disorder.
54. Dr Knox referred to the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV) and said that, according to this manual, the diagnosis of personality disorder requires an evaluation of an individual’s long term patterns of functioning and the particular personality features must be evident by early adulthood. He said that the personality traits that define the disorder must also be distinguished from characteristics that emerge in response to specific situational stressors or transient mental states. He said that there was no report of any psychiatric impairment until Ms Kay was in her mid-20s and that the diagnosis of a borderline personality disorder was inconsistent with her previous work and study history. He also said that such a diagnosis was inconsistent with the psychological testing she underwent before she went to Antarctica.
55. Dr Knox noted that, prior to going to Antarctica, Ms Kay could be described as a person who consumed alcohol excessively, took cannabis and was sexually active but said that this would apply to a large percentage of the population of that age and that it certainly did not indicate the presence of a borderline personality disorder.
Dr Andrew Byth
56. Psychiatrist, Dr Byth, saw Ms Kay on 22 March 2004 and prepared reports dated 30 March 2004 and 12 September 2005. He also gave oral evidence. Dr Byth diagnosed Ms Kay as suffering from borderline personality disorder. Amongst the material he was provided with were Ms Kay’s 1996 and 1997 diaries. Dr Byth placed significance on these diaries and, in relation to the diary entries prior to her Antarctic experience, he wrote:
“There were many entries indicating fluctuating depression, very unstable and changeable relationships, and regular episodes of heavy drinking affecting her work the next day. She described chronic problems with fluctuating self-esteem and sense of identity which were characteristic of borderline personality disorder.”
57. Dr Byth conceded that he did not have enough experience of reading people’s diaries to know whether what was referred to them was factual or otherwise.
58. He noted that she had serious problems with alcohol abuse prior to going to Antarctica. He also noted that there were entries indicating the use of marijuana. Dr Byth said that a person suffering from borderline personality disorder will have exacerbations of it from time to time. He described these as only temporary and said that the underlying disorder is not worsened by a situational crisis. He said that the features of the condition were present during childhood but that it should not be diagnosed until maturity because there is always the prospect that a child will grow out of it.
59. Dr Byth noted that, in an entry dated 3 May 1966 in relation to her psychological testing prior to going to Antarctica, she described herself as being “energetic and enthusiastic” to the psychologist. However, in her evidence, Ms Kay said this was the comment made by the psychologist about her and not what she told the psychologist. (Exhibit 8)
60. Dr Byth said that the use of cannabis and high levels of alcohol were symptomatic of a lack of impulse control which was part of borderline personality disorder. He also said that a feature of the condition is a lack of insight into the effect one’s behaviour has on others and agreed that this was evidenced by the relationship with Dr Reynolds when they shared accommodation in Hobart. He also said that hyposensitivity, in particular to comments by others, was a feature of the condition.
61. Dr Byth considered that the lack of treatment during the years after returning to Australia until she had the incident in Echuca in 2000 ruled out the prospect of a diagnosis of chronic adjustment disorder. He also said that, to a family friend who may have seen her a few days after her time in hospital in Bendigo, she would look different because she had recently been through that episode of depression.
62. Dr Byth considered that the capacity of Ms Kay to complete her apprenticeship and to do so with good results was not inconsistent with borderline personality disorder. He said that people with the condition can perform well as long as they are supported by people around them. Similarly, he considered that the sound work references obtained in relation to a pre-Antarctic employment were not inconsistent with borderline personality disorder because it showed that there was some positivity in her work.
63. Dr Byth said that he was not trained in the use of the kinds of questionnaires which had been administered by the psychologist to Ms Kay in 1996. He described them as being structured tests and he said that it was not uncommon for borderline personality disorder sufferers to do well on those kinds of tests whereas, with relatively unstructured tests, they tended to show their psychopathology to a greater extent.
64. When asked about Ms Kay’s musical interests, Dr Byth said that she may well have been, in recent times, going through a period of relative stability again similar to that which applied when she was doing her apprenticeship.
65. In cross-examination, Dr Byth agreed that a borderline personality disorder sufferer would normally display signs of the condition during adolescence or teenage hood. He agreed that, if a longitudinal history was given by people associated with the person without any such behavioural problem, this would be a contra-indication of borderline personality disorder. He agreed that an absence of evidence in the existence of any criteria for borderline personality disorder up to the age of 19 would not be consistent with borderline personality disorder. He also agreed that a sound high school record and sound employer’s references would be contra-indicative of borderline personality disorder.
66. Dr Byth considered that the successful performance of Ms Kay during her apprenticeship may have been due to her being buoyed up in a supportive atmosphere. However, he agreed that, in the event that Ms Kay had experienced a severe stressor during that period and yet was able to recover from it and continue with her study successfully, this would be a contra-indication of borderline personality disorder. Nevertheless, he said that it did not rule the diagnosis out.
67. Dr Byth agreed that positive assessments from employers over a longer period would be inconsistent with borderline personality disorder. He accepted that she would be expected to have a more disruptive work behaviour pattern if she suffered borderline personality disorder.
68. Dr Byth said that he could entertain the possibility of Ms Kay having had a brief period of adjustment disorder while she was in Antarctica but, on the basis of Dr McArthur’s report, considered that it had cleared up by the time she returned to Australia.
69. Dr Byth was referred to the two tests which were conducted by the psychologist and the psychologist’s conclusion that there was consistency between them. He agreed that she would have had to have done a very good job of bluffing in order to reach that result.
Dr Keith Muir
70. Dr Keith Muir, from Queensland Health, saw Ms Kay in April 2002 and expressed the opinion that she had a lot of the stigmata of post traumatic stress disorder which he appeared to attribute to the events in Antarctica. He also said that she may well have some underlying personality vulnerability, not outside the normal range, but nevertheless which may have predisposed her, to some extent, to develop the condition.
Dr Una Stephenson
71. Dr Stephenson, consultant psychiatrist from the Cairns Health Service, provided a report, dated 16 June 2004, in which she advised that Ms Kay was a patient of the Service between May 2002 and January 2003 and she had been seen by Dr Muir. She said that, at the time, the diagnosis she favoured was a depressive condition secondary to the perceived traumatic experiences in Antarctica. She noted Dr Muir’s reference to post traumatic stress disorder but expressed some concern at the absence of some of the DSM-IV criteria. She considered that a diagnosis of borderline personality disorder could be sustained on the basis of the described behaviour in the Antarctic but she said that this would be invalidated if it were accepted that there was a mood disorder present. She said that, from the history she had been given, Ms Kay had not returned entirely to her pre-Antarctic levels of functioning and was at least mildly impaired between November 1997 and June 2001. Dr Stephenson said that it was not unusual that a stress disorder can go into remission after the event and recur again, even years later, for reasons that may be known or unknown.
Dianne Forsyth
72. Whilst living in the Cairns area, Ms Kay has undergone various forms of treatment which were described in a report from Ms Forsyth, Director of the Addiction Health Agency in Cairns. These included 23 face-to-face counselling sessions and 19 group therapy sessions over a 9½ month period to 20 December 2002. She described the therapeutic intervention provided to Ms Kay as comprising emotional release counselling, inner child and family of origin therapy, conflict resolution, cognitive behaviour therapy, solution oriented psychotherapy and journal writing.
Other Evidence
73. When Ms Kay applied for the 1997 ANARE, she provided various references from employers and these were in evidence. The manager of the GBC Pilbara Division advised that she had worked as a maintenance carpenter in Port Headland and Newman for six months from October to March 1996. She was described as “an enthusiastic participant” who “worked well in a team environment” and “never got stressed out when under pressure due to busy workload and timeframe in which to complete jobs”. She was referred to as being very capable with both carpentry and mechanical tools and as having to move on because the work had “dried up”. Ms Kay worked for Paul Worchester from June to August 1995 and he provided a reference in which he described her as having an excellent temperament and as having a good nature which showed out with her co-workers. Ms Kay worked for Jaxson Construction in Broome from September to October 1995 and she was described by her employer as a competent carpenter who was physically strong in her role and who had a responsible attitude to safety in the workplace. Ms Kay was employed by Nabilla Builders at Rapid Creek in 1994 and 1995 as a carpenter and the manager wrote that she was a competent tradeswoman.
Consideration
Borderline Personality Disorder
74. There is evidence that Ms Kay does not have a borderline personality disorder. That was the opinion of Dr Dewhurst, her treating medical practitioner in recent years. It was also the opinion of psychiatrist Dr Knox who placed reliance on an absence of features of that condition in her pre adult years. He was aware of Ms Kay’s behavioural extremes in the years before she worked in Antarctica but considered that these were typical of many people of her age and did not indicate the presence of a borderline personality disorder. Dr Knox also relied on the results of the psychological testing that Ms Kay underwent in 1996 as part of her assessment for suitability for employment in Antarctica. Psychiatrist Dr Stephenson considered that a diagnosis of borderline personality disorder could be sustained on the basis of the described behaviour in the Antarctic but she said that this would be invalidated if it were accepted that there was a mood disorder present. In Ms Kay’s case, such a diagnosis was made by Dr Goddard in mid 1997 and this was confirmed by Dr McArthur after his examination of Ms Kay on her return to Tasmania in November 1997.
75. Psychiatrist Dr Byth maintains that Ms Kay suffers borderline personality disorder and his opinion is that it predated her employment with ANARE. However, he made a series of concessions in his evidence. He said that a borderline personality disorder sufferer would normally display signs of the condition during adolescence or teenage hood and he agreed that an absence of this would be a contra-indication of borderline personality disorder. He also agreed that sound high school records and employment references would be contra-indicative of borderline personality disorder. Dr Byth considered that Ms Kay’s success in her apprenticeship training did not rule out the diagnosis of borderline personality disorder because it may have been explained by her being buoyed up in a supportive atmosphere. However, he agreed that her level of achievement despite the existence of a severe stressor during that period would be a contra-indication of borderline personality disorder. Dr Byth also agreed that Ms Kay would need to have done a very good job of bluffing in order to achieve the satisfactory results attributed to her in the 1996 psychological testing.
76. The respondent submitted that Ms Kay was an unreliable witness whose evidence should be treated with caution. I do not accept that contention. There were some inconsistencies in certain aspects of the many statements made by her but these have been adduced over several years and the presence of some inconsistency is not surprising. In giving her evidence, I am satisfied that she did her best to provide an accurate insight into her understanding and perceptions of events that occurred to her. For all material considerations, I accept her evidence as reliable.
77. Ms Kay denied psychiatric problems in her developmental years. Ms Kaefus also rejected the suggestion that there were any significant behavioural problems in Ms Kay during her youth. I accept her evidence and also that of Ms Pabian concerning the meritorious level of functioning during Ms Kay’s involvement with the school-based trade education program. I have also noted the success Ms Kay achieved in her apprenticeship training, despite personal difficulties in 1991, as well as the favourable reports provided by her various employers prior to being engaged with ANARE. The psychological testing that Ms Kay underwent in 1996 assessed her as being suitable to assume her responsibilities in Antarctica. I accept that the test was not designed to perform a diagnostic function but to assess whether there was a risk associated with Ms Kay joining the ANARE team. Mr Cotton said that the testing procedures had inbuilt mechanisms for testing validity of responses and he considered that a psychologist conducting the tests would not normally be duped into making incorrect findings. These aspects of Ms Kay’s circumstances before she went to Antarctica support the opinion of Dr Knox concerning the absence of features of borderline personality disorder in the years prior to Ms Kay’s work with ANARE. I have noted the concessions made by Dr Byth and prefer the opinion given by Dr Knox concerning the absence of borderline personality disorder. I am satisfied that Ms Kay does not suffer that condition and did not have that condition prior to her employment with ANARE.
Adjustment Disorder
78. It is common ground that Ms Kay suffered from a psychiatric condition whilst she was at Mawson Station. Dr Goddard diagnosed a depressive reaction with personality and behavioural problems. In November 1997, Dr McArthur described a mood disorder which had by then resolved. In the original decision, the compensable injury for which the respondent accepted liability under section 14 of the Act was an “episode of major mood disorder”. Subsequently, in the reviewable decision, this was amended to a “temporary aggravation of a pre-existing condition, namely borderline personality disorder”. On the basis of my finding concerning borderline personality disorder, above, the amended diagnosis entered by the respondent is not sustainable. Nevertheless, the respondent remains liable to compensate Ms Kay for any incapacity associated with the compensable injury suffered in Antarctica, however that condition is described. In the reviewable decision, the respondent did not purport to deny this liability. Rather, the respondent, in accordance with the Federal Court decisions noted above at para 3 (Australian Postal Corporation v Oudyn and Rosillo v Telstra Corporation Limited), determined that any incapacity from which Ms Kay suffers is not related to the compensable injury. That injury can not now be described as “temporary aggravation of a pre-existing condition, namely borderline personality disorder”. Dr Dewhurst and Dr Knox described an adjustment disorder with mixed anxiety and depression and Dr Stephenson favoured the diagnosis of depressive condition secondary to the perceived traumatic experiences in Antarctica. I also note that Dr Byth said that he could entertain the possibility of Ms Kay having had an adjustment disorder while she was in Antarctica. On balance, I am satisfied that the appropriate diagnosis for the condition that Ms Kay had in Antarctica and has experienced at various times since then is that provided by Dr Dewhurst and Dr Knox which is an adjustment disorder with mixed anxiety and depression.
Relationship to Employment
79. In the initial decision in 1998, the respondent accepted that the condition Ms Kay had in Antarctica was related to her employment there. That liability was not denied in the reviewable decision in 2004 yet the respondent made a submission which appeared to be inconsistent with that acceptance and with the decisions of the Federal Court in Oudyn and Rosillo. It contended that there was no initial compensable injury because the terms of the definition of injury were not met. The respondent also submitted that any current psychiatric condition from which Ms Kay suffers is unrelated to her employment in Antarctica because the original compensable injury had resolved on her return to Australia in January 1998. I have considered each of these matters.
80. The respondent submitted that Ms Kay’s psychiatric condition was only related to her employment because of a failure by her, whilst at Mawson Station, to obtain a benefit in connection with her employment there. On that basis, it was further submitted that this was not an injury as defined in the Act because it fell within the exception in the definition of that term as set out in section 4 of the Act which reads:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
81. It was submitted that the benefits Ms Kay failed to obtain included: choosing the types of jobs that she wanted to do; being relieved from cleaning-up duties; obtaining building materials that she wanted; being given flexibility in her working hours; achieving a greater degree of responsibility; and obtaining special treatment in accordance with the status she believed that she was entitled to because of her ability as a tradesperson. In Hart v Comcare [2005] FCAFC 16, the Full Federal Court held that the exception in the definition of injury applies where the failure makes a material contribution to the injury. In that case, it was a failure to obtain a promotion which was of relevance to the development of the relevant injury. While I accept that this would be equally applicable to the failure to obtain a benefit, I do not accept that the kinds of examples given by the respondent constitute "benefits" embraced by the definition in section 4 of the Act. The examples given merely constitute means of carrying out work associated with employment rather than any benefits beyond the work itself.
82. Even if there were a benefit, as submitted, the evidence does not implicate a failure to obtain a benefit as being of material significance to the development of the psychiatric problem that Ms Kay had in 1997. In its initial decision, the respondent did not detail the basis on which it accepted a causal nexus between the mood disorder and employment but appeared to rely upon the report of Dr Mc Arthur and that, dated 18 November 1997, of Dr Peter Sullivan, from the Polar Medicine Branch of the Australian Antarctica Division. Dr McArthur, in his report of 13 November 1997, described an uncertain aetiology. Dr Sullivan recommended that Ms Kay's claim be accepted but he was not specific as to the causal relationship between her employment and the psychiatric condition. However, he noted that, while most expeditioners cope well with life at ANARE stations, some individuals find it to be a very stressful situation. Dr Stephenson, in her report of 16 June 2004, referred to the role of the extreme conditions of Antarctica and, in the main, to Ms Kay's perceptions of the way she was treated in her role as a carpenter and as a female. Dr Muir, in his report of 26 April 2002, also referred to Ms Kay's reaction to perceived harassment and sexual discrimination. Dr Knox, in his report of 4 July 2003, described Ms Kay's condition as being “fundamentally psychological arising out of alleged insults to her personal and political identity". Those opinions do not implicate the failure to obtain a benefit as being of consequence in the development of Ms Kay’s psychiatric condition. I am satisfied that Ms Kay’s circumstances do not fall within the exception provided for in the definition of injury in section 4 of the Act.
83. One of the bases relied upon on to show a relationship between Ms Kay's psychiatric condition and her employment was that she was subjected to harassment in the workplace by her supervisor. This was Mr Hodges until June 1997. A formal complaint by Ms Kay in that regard was the subject of investigation and, on 15 May 1998, the investigator, Dr M. Duldig, provided a report in which he concluded that he could find no evidence of workplace harassment against Ms Kay. While I am satisfied that various incidents occurred which Ms Kay perceived as harassment or discrimination, I accept the conclusion reached by Dr Duldig. However, it was also submitted that, even if there had been no actual harassment, it was sufficient that Ms Kay believed that this was occurring and that this perception was sufficient to establish the causal association under the Act. I also accept that submission: see Rodriguez and Telstra Corporation Ltd. (2002) FCA 1400 and Wiegand v Comcare (2002) 72 ALD 795. Furthermore, the opinions of Dr Dewhurst, Dr Knox and Dr Stephenson support the relevance of Ms Kay’s perceptions of events in Antarctica as being causally associated with her psychiatric condition. On the basis of that medical evidence and many of Ms Kay’s diary entries and email messages compiled during her stay at Mawson Station as well as her oral evidence, I am satisfied that Ms Kay genuinely believed that she was being subjected to discriminatory treatment in the workplace and that this, in the isolated setting in which she found herself at Mawson Station, materially contributed to the development of the adjustment disorder.
The Condition Post Antarctica
84. The respondent submitted that the condition Ms Kay had in Antarctica had resolved by the time she returned to Australia and that any subsequent manifestations are unrelated to her employment in Antarctica. In particular, reference was made to Ms Kay’s return to remunerative work after January 1998 both in Australia and, for some 8 months, in South Africa as well as an absence of psychiatric symptoms until December 2000. It was submitted that these were triggered by an incident involving her personal relationships and unassociated with any experiences in Antarctica.
85. There were no symptoms of adjustment disorder apparent to Dr McArthur when he saw Ms Kay in November 1997. There is no history of any further treatment until December 2000 when she was admitted to hospital in Bendigo after being involved in a physical altercation with her boyfriend in Echuca. At that time, Dr Yeang noted a history of depressive episodes and he identified the trigger as the domestic dispute. Clinical notes reported her as describing “depression in 1997 (only when in Antarctica)” and as feeling “well until 3 days ago”. Prior to this incident, Ms Kay had returned to her employment as a contract carpenter in Western Australia in May/June 1998 and in the Northern Territory from October to December 1998. She then travelled to South Africa where she carried out a range of work options. After returning to Australia in August 1998, she again took up contract carpentry work in the Australian Capital Territory from September to December 1999 and in the Northern Territory from April 2000 until October 2000.
86. Ms Kay’s financial records were in evidence. They reveal that her gross business income in the financial years ending in June 1995 and June 1996 was $24,063 and $21,297, respectively. After returning from Antarctica, this income figure was $7,118 in 1999 but, in 2000, it was $19,756. The first of those included a period of approximately 2 months absence from Australia but, even so, was well below her pre-Antarctic level of income. The second was still less than her earlier income but more in line with it. An entry in the clinical notes from Bendigo Hospital in December 2000 records Ms Kay as saying that she had a “successful business” and was “financially secure”. Nevertheless, Ms Kay also gave evidence that she had been unable to work effectively during the years 1998 to 2000. This was because she experienced a lack of confidence as well as an inability to cope with criticism and memories of her Antarctic experiences. In 2001, Ms Kay moved to the Cairns area and has only engaged in intermittent carpentry work thereafter. Income records after 2000 reveal a substantial decline in gross business earnings. In 2001, she earned $8,251 which, after deducting business losses, yielded a net income of $41. In 2002, 2003 and 2004, she incurred losses.
87. Dr Muir, Dr Stephenson, Dr Dewhurst and Dr Knox considered that Ms Kay continues to suffer from the condition she experienced in Antarctica. Dr Muir described Ms Kay as having something of an obsession with her Antarctic experiences and he also understood that, since returning to Australia, she had considerable difficulty finding consistent employment. Dr Stephenson described Ms Kay as being at least mildly impaired between 1997 and June 2001. Dr Dewhurst, in his report dated 23 June 2004, contrasted her pre and post Antarctic performance capability and said that there had been no time where she has been able to achieve even the most basic sense of social function since returning from Antarctica and had remained largely unemployed. In his evidence, he said that he had not been aware of employment activity and absence of treatment or symptoms from 1998 to December 2000. He conceded that, if there was no treatment in that period, she may have recovered but, nevertheless, he considered that, in returning to work, she would have experienced difficulty.
88. Dr Knox’s opinion was that Ms Kay suffered an enduring adjustment disorder since it arose in Antarctica. He said that, while her condition had improved since leaving Antarctica, she had not been able to attain the stability of life that she had previously enjoyed. He noted that Ms Kay had found a period of secure employment in 1998 before travelling to South Africa but had not been able to do so on return to Australia thereafter. Dr Knox said that he had been unaware that she had received no treatment for the three years after being in Antarctica and said, in that case, she may have recovered. Despite that, he said that, if there was a period after she returned from Antarctica where she did not display symptoms and a stress reaction could then be precipitated by a relatively small event, such as the argument with a boyfriend, this would mean that she had not resolved the initial problem. Dr Stephenson said that it was not unusual for a stress disorder to go into remission after an initiating event and to recur again, even years later.
89. Dr Byth was of the opinion that Ms Kay had recovered when she saw Dr McArthur in 1997 and that this continued through her period of employment and vacation from 1998 to 2000. He said that, in those circumstances, any adjustment disorder that she may have developed as a result of her employment had resolved. Nonetheless, in taking a history from Ms Kay, Dr Byth noted her belief that she had “lacked confidence” when she attempted to return to carpentry work and that she had clashed with various male supervisors when she felt that were “observing, questioning or intimidating her at work”. While, as Dr Byth reported, Dr McArthur expressed the opinion in 1997 that Ms Kay’s condition had resolved, I note that he also stated in his report that, “for the future, she would have a risk of recurrence…”.
90. Despite Ms Kay’s return to employment and lack of treatment from 1998 to 2000, I am satisfied that the adjustment disorder with mixed anxiety and depression had not completely resolved, that it continued with a remanifestation in December 2000 and that the condition remains current. In so finding, I have noted the qualifications about the prospect of recurrence by Dr McArthur and Dr Stephenson and the observations by Dr Dewhurst and Dr Knox on being advised of the absence of treatment in that three year period. As Ms Kay’s adjustment disorder with mixed anxiety and depression is a continuing condition, I am also satisfied that the respondent remains liable under section 14 of the Act to pay compensation in accordance with the Act for incapacity and impairment associated with the condition.
Permanent Impairment
91. Section 24 of the Act relates to permanent impairment. It reads:
Section 24.
Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
92. In that provision, the term permanent is defined to mean “likely to continue indefinitely”. Section 4 of the Act defines the term impairment as:
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
93. No rehabilitation requirements for Ms Kay have been set down by the respondent. This is not surprising as it has had no involvement with her since 1998. However, rehabilitation treatment is not limited to that formally required by an employer: Filla v Comcare (2001) 115 FCR 144 at 155 and see Comcare v Filla (2002) 115 FLR 163. From mid 2001, Ms Kay has received counselling and support from various agencies in North Queensland. Dr Muir’s report was dated April 2002 and he considered that counselling should be offered to Ms Kay at that stage. Diane Forsyth described a 9½ month period of counselling and group therapy sessions until December 2002. Dr Stephenson last saw her in early 2003 and could only speculate on the permanency of her condition. Dr Knox saw her in 2003 and considered that Ms Kay’s mental health had been permanently damaged and that she was likely to continue with significant psychiatric disturbance indefinitely. Dr Dewhurst has treated and observed Ms Kay since January 2004 for approximately 60 hours as part of her treatment regimen and he believed that she was permanently impaired by her psychiatric condition. He continues to see her on a weekly basis. Even Dr Byth considers that she is permanently impaired although, as noted earlier, his conclusion is that this is from a borderline personality disorder. He concluded, in his report of 30 March 2004, that her condition could “not be expected to improve much with the passage of time or with any psychological treatment….”.
94. A feature of Ms Kay’s life in recent years has been her commitment to writing and performing music. She also enrolled in a music-related course at TAFE. Dr Dewhurst said that she had problems attending classes and dealing with comments from staff members and fellow students and was forced to discontinue this course. She plays guitar and sings in a band. She has a web site although she was not responsible for establishing the site. She has been involved in live performances at various social venues. She has recorded two CDs and her endeavours to market these have resulted in approximately 10 to 15 sales. Dr Dewhurst saw her performing and said that she performed well but slipped back into a restricted mood when she was not engaged in that activity. While Ms Kay’s capacity to engage in these musical themes has relevance for measuring the level of her activities for the purpose of calculating impairment, I am satisfied that they do not detract from the permanent nature of her impairment.
95. I am satisfied that the treatment that Ms Kay has been offered since 2001 constitutes all reasonable rehabilitative treatment that she needed to undertake and I am also satisfied that she has undertaken that treatment. The condition has been present since 1997 and there is little likelihood of improvement in her condition. Accordingly, I am satisfied that she suffers permanent impairment from her adjustment disorder with anxiety and depression and that the respondent is liable, under subsection 24(1) of the Act, to pay compensation to her in respect of that condition.
96. Under subsections 24(4) to (7) of the Act, the respondent is to determine the amount of compensation, expressed in percentage terms, payable by applying the appropriate table in the Guide prepared under section 28 of the Act. Compensation is not payable if the degree of permanent impairment is less than 10%. Relevant to this matter is table 5.1 which, insofar as relevant, reads:
TABLE 5.1
%
description of level of impairment
0
Reactions to stressors of daily living without loss of personal or social efficiency and capable of performing activities of daily living without supervision or assistance
5
Despite the presence of one of the following is capable of performing activities of daily living without supervision or assistance:
o reactions to stressors of daily living with minor loss of personal or social efficiency
o lack of conscience directed behaviour without harm to community or self
o minor distortions of thinking
10
Despite the presence of more than one of the following is capable of performing activities of daily living without supervision or assistance:
o reactions to stressors of daily living with minor loss of personal or social efficiency
o lack of conscience directed behaviour without harm to community or self
o minor distortions of thinking
15
Any one of the following accompanied by a need for some supervision and direction in activities of daily living:
reactions to stressors of daily living which cause modification of daily living patterns;o marked disturbances in thinking;
o definite disturbances in behaviour.
20
Any two of the following accompanied by a need for some supervision and direction in activities of daily living
o reactions to stressors of daily living which cause modification of daily living patterns
o marked disturbance in thinking
o definite disturbance in behaviour
25
All of the following accompanied by a need for some supervision and direction in activities of daily living
o reactions to stressors of daily living which cause modification of daily living patterns
o marked disturbances in thinking
o definite disturbances in behaviour
97. In the Glossary to the Guide, the definition of activities of daily living reads:
activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
ability to receive and respond to incoming stimuli
standing
moving
feeding (includes eating but not the preparation of food)
control of bladder and bowel
self-care (bathing, dressing etc.)
sexual function.
98. Dr Knox, in his reports, recommended a 25% impairment because of the need for supervision and direction in activities such as “moving” and responding to stimuli. In his evidence, he agreed that the 25% threshold was “possible” in the case of someone who was capable of performing live on stage and producing CDs and that she did not need actual assistance with moving and standing at that time. Dr Stephenson noted that she had not seen Ms Kay for some time before she prepared her report but considered that a degree of impairment was possible. She agreed with Ms Kay’s own assessment of 25%. Dr Dewhurst also considered that a 25% impairment was applicable to Ms Kay. In his report, Dr Dewhurst described a wide range of symptoms including “mood lowering and fluctuation”, “agitation and irritability”, “poor concentration, short term memory and decision making” as well as “difficulty in coping in situations with any level of stress or confrontation”. However, he agreed that she was able to respond to incoming stimuli and was able to move, stand, dress and bathe without assistance and that she did not need to be supervised or assisted in carrying out her daily activities. He said that anger was not an issue with her and that he had not seen evidence of any lack of control although he recalled that she had referred to suicidal thoughts at times.
99. When considering the assessment of activities of daily living, consideration must be given to more than the basic mechanics of the relevant factors in the Glossary to the Guide and the psychosocial aspects must also be considered: see Comcare v Emery (1993) 32 ALD 147 at 151. This is particularly relevant in a case involving a psychiatric condition. Dr Dewhurst is Ms Kay’s treating practitioner and I accept his description of Ms Kay’s capacities though I am satisfied that this does not accord with an impairment of 25 points under table 5.1 of the Guide. There is no evidence to support a finding that Ms Kay needs any supervision or direction in any of the items that are referred to in the Glossary as providing a measure of activities of daily living. This means that her circumstances do not answer a description at any level greater than 10% under table 5.1 of the Guide. Nevertheless, I accept that she does react to stressors of daily living with some loss of efficiency and has minor distortions in her thinking. These characteristics are reflected, for example, in her substantially decreased capacity to undertake work in her trade and the description of symptoms described by Dr Dewhurst and noted above. I am satisfied that Ms Kay has a 10% level of impairment under table 5.1 of the Guide.
Decision
100. The Tribunal sets aside the decision under review and substitutes its decision that the respondent is liable to pay compensation to the applicant for adjustment disorder with mixed anxiety and depression under section 14 of the Act and for permanent impairment in accordance with section 24 of the Act, at 10% under table 5.1 of the Guide. The Tribunal remits the matter to the respondent with the direction to calculate the applicant’s entitlements in accordance with its decision and orders that the respondent pay the applicant’s costs of these proceedings in accordance with the general practice direction.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 11-13 April, 1-2 August, 3-7 October 2005.
Date of Decision 25 January 2006
Counsel for the Applicant Mr S Whybrow
Solicitor for the Applicant Gary Robb & Associates
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Australian Government Solicitor
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