Kazakos and Comcare (Compensation)

Kazakos and Comcare (Compensation) [2018] AATA 1503 (1 June 2018)
Division:GENERAL DIVISION
File Number(s): 2016/1024
Re:Jenny Kazakos
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:1 June 2018
Place:Melbourne

The decision under review dated 9 February 2016 is affirmed.
[sgd]........................................................................
Senior Member D. J. Morris
Catchwords
COMPENSATION – Psychiatric condition – assault during a work day – whether liability accepted - differential diagnoses of condition – whether ‘injury’ or ‘disease’ – history of treatment – whether condition aggravated to substantial degree by employment – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act1988 (Cth), ss 14, 5A, 5B, 6(1)(b)
Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth), Sch 1, item 11
Cases
Comcare v Canute [2005] 148 FCR 232
Canute v Comcare (2006) 226 CLR 535, [2006] HCA 47
Comcare v Power [2015] FCA 1502
Secondary materials
Explanatory Memorandum to the Safety, Rehabilitation and Compensation and other Legislation Amendment Bill 2007
REASONS FOR DECISION
Senior Member D. J. Morris
1 June 2018
Background

On 9 February 2016 a review officer of Comcare, the Respondent in this matter, affirmed a determination dated 20 November 2015 denying liability under section 14 of the Safety,Rehabilitation and Compensation Act 1988 (the Act) in relation to a claim made by the Applicant, Ms Jenny Kazakos, for workers’ compensation in relation to anxiety, depression and panic attacks.
Ms Kazakos sought a review before the Tribunal of that decision. The hearing was held from 27 to 29 November 2017. The Applicant was represented by Mr Mark Carey, of counsel, instructed by Ms Gabriella Giunta of Slater & Gordon. Comcare was represented by Mr Michael Snell of Lehmann Snell. The Applicant gave evidence and was cross-examined. The Tribunal also heard oral evidence from Dr James Hundertmark and Dr Albert Kaplan, both consultant psychiatrists who had provided medical reports on Ms Kazakos.
The Applicant’s counsel submitted that Ms Kazakos suffered incapacity and impairment as a result of injury sustained on 1 July 2014 identified as “post-traumatic stress disorder” (PTSD), which arose out of or in the course of her employment with the Department of Human Services (the Department) and this gives rise to entitlement to compensation under section 14 of the Act.
Evidence of the Applicant
Ms Kazakos gave evidence that she commenced employment with the Commonwealth Rehabilitation Service (CRS) in August 2007 at the South Yarra office, working occasionally at the Box Hill office. She was initially engaged as an APS Level 2 officer. In 2008 she was promoted to APS Level 3 and in 2009 to APS Level 4. During this period she did a number of courses and completed a Certificate IV in Community Services in 2010.
In 2013 she said staff were told that the CRS would be closed and its functions absorbed into other government agencies. Ms Kazakos said that the former CRS staff were redeployed to other parts of the Department, some moving to work for Centrelink, the delivery agency for benefits administered by the Department. Ms Kazakos told the Tribunal that her role had principally been working in the financial and billing area but, as the CRS was nearing closure they lost administrative staff and she had to additionally undertake some reception duties. She said she felt that the close-down was not well organised, staff became anxious and redeployment was, in her words, left to the last minute.
In 2014 she said the South Yarra office of the CRS was closed. She was asked to assist at the Cheltenham CRS office. From time to time she also assisted at the Bundoora, Box Hill, Narre Warren and Preston Centrelink offices, as required to assist with billing and filling staff shortages.
In her written statement submitted to the Tribunal, Ms Kazakos described the event which took place on 1 July 2014:
On 1 July 2014 I was at work at the Cheltenham CRS office and at lunchtime I walked out of the office and crossed the street where I was physically assaulted by a woman. She was standing at the footpath as I crossed the road. She was holding a cup of coffee and walked straight at me, threw some of her coffee in my face and punched me on the right side of the nose and mouth. I was shocked and dazed and tried to grab her arms as I could see she was going to punch me again. I grabbed the arm and started yelling for help. She then threw the rest of her coffee at my face and walked off.
It is this event that the Applicant contends caused her injury, namely PTSD, and is the basis of the claim under review.
Ms Kazakos told the Tribunal she returned to work and told her superior. She logged the incident on the Department’s internal system and was advised to call the police. She called the local police station. Ms Kazakos was advised to come to the police station and make a statement, which she did. She said she didn’t feel she could stay at work but that her manager (who was off-site) told Ms Kazakos she could not leave until later in the day, owing to staff shortages.
Ms Kazakos said that she went to a medical clinic and saw a doctor who advised her to have an x-ray that morning. She did so and was advised there was no facial fracture. Ms Kazakos said she could not take time off from work because she had already lodged a form for annual leave in mid-July to travel to Greece for seven or eight weeks.
In late September 2014, on her return from Greece, the Applicant said she went to work at the Cheltenham CRS office and then transferred to the CRS office at Oakleigh. She said she was experiencing panic and stress and having difficulty sleeping. She went to see a general practitioner, Dr Azhar Rakhmetova, who prescribed Pristiq, an antidepressant. Dr Rakhmetova recommended Ms Kazakos also start seeing a counsellor, Mr Boris Golub, which she did.
Ms Kazakos said she was initially asked to work in the Dandenong office but she said she was having panic attacks and could not drive and that she would be happy to go to the Oakleigh office because she could walk there from her home. Ms Kazakos said she had a ‘shadowing’ day at Centrelink and told her superior that she did not think she was suited for the work, but said she was told because of the closure of the CRS and redeployment it was ‘this or nothing’.
The Applicant said she observed angry customers slamming telephones down and speaking loudly. She said it was an open plan office and sometimes she would be on duty at the front with the task to ‘triage’ people depending on the reason they had visited Centrelink. Ms Kazakos told the Tribunal that her anxiety levels “went through the roof”. She felt she was not properly trained for this work. Ms Kazakos outlined some training that she did undertake and that another staff member sat with her for ‘a couple of hours’, but that there was a huge range of products with which she needed to become familiar.
At this time Ms Kazakos said her union advised her to keep a work diary, extracts of which she reproduced in her written statement. She said she was being troubled by pain in her lower back and neck and arm and found standing for long periods difficult, particularly juggling a tablet computer as she directed staff to other personnel. Ms Kazakos saw her general practitioner and the dosage of Pristiq was increased to 100mg. She said she was also prescribed Mobic, an anti-inflammatory medication, and Nexium to control reflux.
Ms Kazakos said she saw her manager and was told she was performing well and that formal training was coming soon. She told the manager that she was in “extreme pain, continually taking pain killers and feeling anxious and stressed and not coping well and not sleeping at night.”Ms Kazakos said she ceased work in May 2015.
Under cross-examination, the Applicant said the first time she recalls experiencing panic attacks was on her return from her holiday in Greece. At the request of the Department, Ms Kazakos was examined by Dr Anthony Sheehan, consultant psychiatrist, on 2 June 2015 and re-assessed on 1 September 2015. In his report dated 12 June 2015 after the initial examination, Dr Sheehan recorded:
Past Medical/Psychiatric History:
Ms Kazakos reported no formal past psychiatric history. She said she suffered from neck and back problems for five years. There is no family history of psychiatric illness.
Dr Sheehan stated that on the basis of available information he was of the opinion that Ms Kazakos was suffering from:
‘a moderately severe major depressive disorder with some features of traumatisation. She currently presented as having total work incapacity and requires continuing psychiatric treatment. I would recommend review in three months to reassess her response to treatment and capacity to return to work. Given the severity of her condition she should avoid direct face-to-face contact but may regain capacity for telephone-based duties once her clinical state has improved and stabilised.’
Mr Snell noted that Dr Sheehan recorded that Ms Kazakos had told him she had had no psychiatric treatment and that she agreed earlier in the hearing that she had in fact had such treatment before and that she had made complaints to various practitioners about psychiatric symptoms for a number of years. The Applicant responded that this was so, but that it was in relation to bullying in the workplace.
Mr Snell asked Ms Kazakos whether she told Dr Sheehan about consulting Ms Michelle Sherman, clinical psychologist, but Ms Kazakos said she had forgotten she had seen Ms Sherman. Before the Tribunal was a letter dated 24 August 2011 from Ms Sherman to Dr Diane Patrick, then Ms Kazakos’s treating general practitioner. Dr Patrick had referred Ms Kazakos for counselling. Ms Sherman wrote:
Thank you for referring Jenny, aged 45, for counselling. Jenny attended for the first time today. She is struggling with depression, characterised by fatigue, anger, sleeping difficulties, lack of enjoyment, and social withdrawal. Jenny’s depression is maintained by health issues, unhappiness at work, and family issues. She has been stuck in a rut for a long time now. I am hoping to assist Jenny to address these issues and to make changes to improve her life.
The Tribunal also had summonsed clinical notes written by Ms Sherman for the session the Applicant attended on 24 August 2011. Ms Sherman recorded that Ms Kazakos’s general practitioner had prescribed antidepressants for her since 2 August 2011 but that Ms Kazakos had not felt any difference yet and was “not keen” on the medication.
Ms Sherman recorded a work history including a comment from the Applicant that the CRS in her view did not deal with bullying in the workplace. Ms Kazakos told Ms Sherman she had sustained a neck injury at work. In terms of her family, Ms Kazakos told Ms Sherman that she had a younger sister who was then overseas. The Applicant said that she was renovating her mother’s house but “no one is helping her”. She said another sister lived next door to her with her three children and that her sisters were both self-absorbed and demanding of the Applicant.
Ms Sherman recorded in 2011 that Ms Kazakos told her she had felt depressed for “2-3 years”. She felt fatigued and was not sleeping well; putting on weight. She recorded that Ms Kazakos was considering other jobs or courses. Ms Kazakos told her she had suicidal ideation and had made two suicide attempts when she was aged 19 or 20, living at home. She said she cut her wrists with a razor and that her father kicked the door open and “beat her”.
Ms Kazakos told Ms Sherman she had married at 23 but it was not a happy marriage. She said at the age of 26 she had to terminate a seven month pregnancy and at the time saw a psychiatrist who “dug up old skeletons”. She said she returned to work shortly after the termination and divorced at 28. In her second session on 5 September 2011, Ms Kazakos told Ms Sherman that her father used to bash her and her mother, and that her sister and brother-in-law bash their son. She said her mother put up with her father’s abuse because he threatened to kill her and the children but her mother eventually left her father and he stalked her until she stood up to him.
Ms Sherman also refers in her 2011 notes to the fact that Ms Kazakos was taking Mirtazapine, an antidepressant medication, and Ms Kazakos confirmed in her evidence that she was first prescribed this medication that year. Ms Kazakos told the Tribunal she did not take Mirtazapine at the time because she didn’t think it would help. She felt she was more stressed than depressed.
Ms Kazakos gave evidence that she had seen Dr Patrick and agreed that she had been recommended for a sleep study in 2012 but did not go through with it. She said the nature of the study was to be “wired up” in a room at a pharmacy and that it was expensive. She did not recall whether it was the cost or the time factor which led to her not undertake the sleep study.
Dr Patrick recorded the reason for her presentation being “depression” but Ms Kazakos said she did not recall being depressed at the time. Ms Kazakos saw Dr Patrick again on 28 February 2013 for what is recorded as “continued anxiety and depression”. She said she recalled being given a GP Mental Health Care Plan. Mr Snell asked Ms Kazakos if she recalled being prescribed Luvox, which is a medication that can be used in the treatment of depressive disorders, and Ms Kazakos said she recalled not taking this medication.
Mr Snell noted that on 18 April 2013 that Dr Patrick changed a prescription of Luvox 50mg to Luvox 100 mg, which suggested Dr Patrick was then under the impression that the Applicant was not only taking the medication but that an increase in the dosage was, in the doctor’s assessment, necessary, but Ms Kazakos could not recall this.
The Tribunal also had before it summonsed medical records from St Kilda South Medical Centre where Ms Kazakos had been a patient. On 7 March 2014 the Applicant saw a nurse at the clinic who recorded:
History: Depression. Psych: poor sleep. Early morning wakening. Depressed mood. Low self esteem. Irrational fear. Panic attacks. No suicidal thoughts.
Examination:
History of work place bullying. The Union is involved. Last year was on antidepressants as a result of bullying. Then got better and stopped taking was doing well. After the bully came back and deteriorated again. Feels weak. Unable to ascertain [sic] self. Doesn’t want to start antidepressants, but want to work on strategies.
On 28 April 2014 Ms Kazakos saw Dr Rakhmetova at the same clinic. Dr Rakhmetova recorded under ‘reason for contact’: “Anxiety, depression, otitis externa, anxiety, insomnia, panic attacks, difficulty concentrating”.
Ms Kazakos agreed that she was suffering depressive symptoms well before the assault that took place in July 2014, and said that was because of “whatever was happening at work” at that time.
Mr Snell asked Ms Kazakos about her consultations with Ms Sherman in 2011. The Applicant said she was referred because of bullying at work but agreed she had given the family history outlined above. In terms of Ms Sherman recording two suicide attempts when she was aged 19 or 20, Ms Kazakos said she could recall only one. She said she was seeing a boy her father did not approve of and had cut her wrists in the bathroom; her father broke the door down and pulled her out. Ms Kazakos said she had not cut herself deeply and recalled applying Band-Aids and not needing any further treatment.
In terms of the street assault injury, Ms Kazakos was asked if the assailant spoke to her. She said the person said words to the effect of “do you remember me?” Ms Kazakos said she thinks this was a person from a road rage incident some days before. Mr Snell referred the Applicant to the statement she made to the police at the time, a copy of which was before the Tribunal, in which she stated that the woman said “You are the one who cut me off in traffic.” Ms Kazakos said she did not know the identity of the person, but on a previous day when she was about to turn her car into the carpark adjacent to the CRS office, another car had pulled up alongside her and the driver said words to the effect of “I’m going to kill you.” She believed it was the same woman who assaulted her.
Evidence of Dr Kaplan
The Tribunal heard evidence from Dr Albert Kaplan, consultant psychiatrist. He examined the Applicant on 17 August 2016 and provided a report to solicitors for the Applicant dated 20 August 2016 which was taken into evidence.
In his report Dr Kaplan recorded what the Applicant told him about the July 2014 incident:
Ms Kazakos described an incident which occurred on 1 July 2014. She had been busy and she went out for a quick late lunch. She noticed a tall woman standing on a corner and this woman began saying something to Ms Kazakos. She then threw coffee at her and punched her in the face. Ms Kazakos grabbed the woman’s arm as she tried to punch her again. The woman said she knew where she worked and threw the rest of the coffee in her face. Ms Kazakos stated that she was frightened and yelling for help. However, the area was deserted. Ms Kazakos tried to pacify the woman and told her ‘why don’t you come in and we’ll talk’.
Dr Kaplan’s opinion in his report was that Ms Kazakos was initially traumatised by the incident of 2014 when she was the victim of an assault which occurred while she was employed by the CRS, and she developed some traumatisation symptoms although his view was those symptoms would not have qualified for a diagnosis of a PTSD. He considered that she was subsequently traumatised by the alleged stresses she experienced at Centrelink. Dr Kaplan said Ms Kazakos suffers from panic attacks and describes a dread of returning to Centrelink and of contact with Centrelink clients or staff and feels intensely vulnerable. Ultimately, he did considered her condition is best described as PTSD which he considered partly related to the initial assault but that the main contributing factors are ‘the alleged abuse and threats she experienced over a prolonged period of time at Centrelink’. Dr Kaplan included in his report that a differential diagnosis of her condition would be Major Depressive Disorder associated with anxiety and panic attacks and traumatisation features. In evidence Dr Kaplan was asked if he had since received a copy of Ms Sherman’s notes of 2011. He said he had and still held to the opinion in his report.
In cross-examination, Dr Kaplan was asked what features he considered vindicated his diagnosis of PTSD once the initial shock of the street assault had passed. Dr Kaplan said the symptoms were: anxiety, depression, intrusive thoughts, nightmares, panic attacks and that Ms Kazakos felt intensely vulnerable at Centrelink and dreaded returning there. When pressed on what features the Applicant had prior to the assault, he said he did not believe she had intrusive thoughts but did understand from the notes he had read that she had had some symptoms in 2011 and 2013.
Dr Kaplan said he had previously been unaware of Ms Sherman’s 2011 report but felt in his view it was likely that Ms Kazakos had underlying vulnerabilities because of the dysfunction within her family.
Evidence of Dr Hundertmark
The Tribunal heard evidence from Dr James Hundertmark, consultant psychiatrist. He examined the Applicant on 18 April 2017 and provided a report to the Respondent dated 28 April 2017 which was taken into evidence.
In the report, Dr Hundertmark stated:
Summary and Assessment:
Essentially it is my opinion that Ms Kazakos suffers from a lifelong depressive condition with associated anxiety. The condition began when she was married and had a complex pregnancy which unfortunately ended with a nonviable foetus which had to be removed in an emergency operation. Not surprisingly she suffered a depressive disturbance but felt unaided by treatment with a psychiatrist which was arranged for her at the time.

In response to the question of what conditions, if any, does he consider the Applicant suffers from, Dr Hundertmark wrote:
It is my opinion that Ms Kazakos has suffered from a major depressive disorder of moderate severity that is recurrent. The appropriate code on the DSM-5 is 296.32. The progression involves the first episode around the time of the complicated pregnancy and loss of child with an emergency surgical procedure. The second episode followed the assault and the third episode followed issues in the workplace at Oakleigh Centrelink.
In his evidence, Dr Hundertmark asked that he amend his report in one respect. In the report he was asked whether he considered Ms Kazakos’ current condition was contributed to by her employment with the Department of Human Services and if so what specific events and/or states of affairs were causative. His response in the report stated:
It is my opinion that Ms Kazakos’ work at the Department of Human Services at the Oakleigh Centrelink aggravated her pre-existing depressive illness. The issues involved dealing with unpredictable and aggressive clients from time to time. There had been an additional degree of vulnerability established as a result of previous assault outside the CRS office.
Dr Hundertmark amended this paragraph in his report by deleting the word ‘vulnerability’ and substituting the word ‘susceptibility’.
When asked by counsel what factors influenced his opinion of the longevity of the Applicant’s condition, Dr Hundertmark said the factors were: evidence of an ongoing condition with a number of episodes throughout her life and treatment for depressive symptoms. He said that relapses and remissions were typical features of a Major Depressive Disorder as described in the DSM.
Dr Hundertmark said that there need not be an event to precipitate this condition. He said in the DSM V, there is no distinction between androgynous or reactive depression but the condition is instead rated on severity. If a patient has five of the eight factors, then that warrants a diagnosis. He then told the Tribunal that the factors are: change in sleep including insomnia and early morning wakening; appetite and weight changes, including loss of weight or gaining weight through comfort eating; changes in energy levels; changes in enjoyment of things previously found pleasurable; effects on memory or concentration; suicidal ideation; a pervasively depressed mood; and loss of interest.
The Tribunal asked Dr Hundertmark which of these factors he identified in Ms Kazakos. He replied: insomnia, depressed mood, suicidal thinking, anxiety, poor concentration and general loss of enjoyment in activities.
Dr Hundertmark was asked about Dr Rakhmetova’s diagnosis in her notes in 2014 of anxiety, depression, otitis extrema, difficulty in concentration and the patient being jittery. He responded that these are very much symptoms of a significantly depressive mood. Dr Hundertmark was asked if he had read the notes taken by Ms Sherman. He said he had not been aware of these early life issues before, including a history of domestic violence in the home, two (as recorded) suicide attempts and the Applicant being beaten by her father. He said he was of the view that these factors create a vulnerability to depressive illness later in life.
When pressed as to whether he asked the Applicant about her childhood when he examined her, Dr Hundertmark said he did, but he did not collect the material included in Ms Sherman’s notes in his interview with Ms Kazakos and said that he would have recorded it in his report if he had, because it was relevant. The first adverse circumstance of which he was aware was Ms Kazakos’ pregnancy and loss of the baby. He said with this new knowledge his opinion was that it was possible that significant depressive symptoms were present earlier in the Applicant’s life.
In cross-examination, Dr Hundertmark said he did not agree with Dr Kaplan’s diagnosis of PTSD. He said a trauma outside the usual human experience was necessary for such a diagnosis. In terms of the street assault, Dr Hundertmark said it was an awful event but not one that was outside the range of human experience.
Mr Carey noted that Ms Kazakos returned to work two weeks following her termination and continued in work. Dr Hundertmark said this is often the case because patients push down a traumatic experience and it often comes back to affect them in later life. He said she had depressive symptoms and was in denial at that time, which was to her detriment and the later medical evidence from 2011, 2012 and 2013 support symptoms of depression.
Consideration
The Tribunal must take care to consider what the Applicant’s claim is that is under review. In this matter there was evidence given about other physical ailments of Ms Kazakos and events at work, including allegations of bullying. These matters are not before the Tribunal in relation to reviewing the decision on this claim.
There was no dispute between Counsel for the parties that the Applicant suffers from a depressive condition. What was in contention is the causation of this condition and its date of onset. Counsel for the Applicant argued that the condition was PTSD which arose from the assault on 1 July 2014. The event occurred, in Ms Kazakos’ evidence, when she had crossed the road to get some lunch during a normal work day. In its written submissions, the Respondent conceded that, in relation to this assault, the Applicant had reported the event that occurred during her absence from her workplace during an ‘ordinary recess’ (i.e. such as a lunch break) and that she would be within the ambit of the provisions of section 6(1)(b) of the Act for that period, such that events occurring would be deemed to have arisen out of or in the course of employment.
Although the street assault was apparently not related to the Applicant’s work for the Department and seems to have been an opportunistic attack as a consequence of a road rage incident, it occurred, as conceded by the Respondent, during an ordinary recess in work and so the Tribunal finds that there is no barrier to it being considered as an event which occurred in the course of her employment, in a temporal sense.
The Legislative Framework
Section 14 of the Act states:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and willful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Is a psychiatric condition an ‘injury’?
Section 5A(1) of the Act states:
Definition of injury
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
…
Section 5B of the Act sets out the definition of ‘disease’:
Definition of disease
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
There has been a number of judicial and Tribunal decisions which have considered the question of whether a psychiatric condition is an ‘injury’ in terms of the Act. The Tribunal was referred to the comments of Gyles J in Comcare v Canute [2005] 148 FCR at [83] which was affirmed on appeal by the High Court (Canute v Comcare 2006) 226 CLR 535, [2006] HCA 47 to the effect that the definitions of “injury” and “disease” were wide enough to allow a conclusion in that matter that the psychological condition might be regarded either as a mental injury or an ailment.
Mr Carey contended that the Applicant’s mental condition is an ailment which is compensable when her employment contributed to it to a requisite extent, and that Dr Hundertmark in his report referred to an “aggravation” which would bring the condition into the ambit of section 5B(1)(b) of the Act. Mr Carey submitted that the weight of the evidence supported a conclusion that Ms Kazakos’ psychological condition was at a “subclinical stage” immediately after the street assault when she embarked on a period of recreational leave and a trip to Greece, but that it became florid in the period between September and the latter part of April 2015.
The Tribunal had before it a report provided for Comcare dated 5 November 2015 from Dr Zeeva Cohen, psychiatrist, who examined the Applicant on 29 October 2015 in relation to a separate matter. Dr Cohen wrote, in the context of the presenting complaint:
“Ms Kazakos explained that in approximately June or July 2014, whilst working for CRS, in Cheltenham, when leaving the office she was randomly assaulted by a person on the street who threw coffee at her and punched her face. The assailant allegedly said “I know where you work’. She said she reported the incident to her workplace and made a police report. She said she also had X-rays. She said at that stage she started to feel anxious in that she did not want to leave the office as she felt fearful. She stated that the police had said random assaults were common in the area. She said that she was due to take a holiday to Greece and her anxiety resolved whilst she was away.”
Later in the report, Dr Cohen recorded:
Past Medical/Psychiatric History:
Ms Kazakos reported that she had not previously required any mental health treatment. She said she was commenced on the antidepressants at the time of the work-related stress and had not used these previously. She reported some short-term counselling some 20 years ago in the context of a lost pregnancy.
Dr Cohen’s conclusion in her report was a diagnosis of PTSD. She was of the opinion that the Applicant suffered some short-lived symptoms in June/July 2014 “which appear not to have been clinically significant until December 2014…”
The Tribunal is disturbed that, on the face of Dr Cohen’s remarks, she did not seem to have been given all the relevant information by Ms Kazakos. By the way Dr Cohen recorded the details of the assault, it could be concluded that the person who assaulted the Applicant had had no previous interaction with the Applicant, which was not the case. On the Applicant’s own evidence, she believed that the person who perpetrated this assault was a woman with whom she’d had a “road rage” incident a few days before, so while she did not know the person’s name, there was a context, albeit one which does not at all justify the assault.
In addition, it would appear that while Ms Kazakos told Dr Cohen about the counselling sessions she underwent immediately after her termination, she did not disclose that her general practitioner had not only many years later prescribed antidepressants (and, apparently, on clinical review increased the dosage) but had referred her to a clinical psychologist, Ms Sherman, in 2011 and that Ms Kazakos had attended Ms Sherman for several sessions. The Applicant also did not tell Dr Cohen about the frequent visits she had had to a variety of general practitioners in relation to depression and anxiety where she had been counselled. This was a similar incomplete medical history to that which affects Dr Sheehan’s report, as outlined above.
Importantly, as also mentioned above, when Dr Diane Patrick referred Ms Kazakos to see Ms Sherman in August 2011, she said in her referral letter that Ms Kazakos’ depressive condition was maintained by a combination of factors: health issues, unhappiness at work, and family issues.
Ms Sherman recorded that, when Ms Kazakos went to the hospital-referred psychiatrist after her unfortunate termination, he “dug up past skeletons”. When pressed at the hearing about what this phrase referred to, Ms Kazakos said she may have meant, in using this term, when her father hit her.
In February and April 2013 Ms Kazakos consulted with Dr Diane Patrick and also Dr A. C. Patrick at St Kilda South Medical Centre complaining of depression and was prescribed Luvox and Temazapam. On 20 February 2014 she consulted with Dr Rakhmetova at the same centre with the doctor recording that the reason for contact was “Anxiety, Depression”. On 7 March 2014 she saw a practice nurse at the same centre, Mrs Victoria Goikhman, whose notes record a history of depression and that the reason for contact was “MHN follow up”, with the Tribunal taking the acronym MHN to mean ‘mental health nurse’.
On 11 March 2014, Ms Kazakos saw Dr Nusrat Najnin at St Kilda South Medical Centre who recorded:
“according to her, she gets a lot of stress due to her manager at her work place which is related to her anxiety and depression.”
Ms Kazakos saw Mrs Goikhman in relation to her depressive condition on 14 March 2014, 21 March 2014, 28 March 2014 and 11 April 2014. On 28 April 2014 she saw Dr Rakhmetova who recorded under the reasons for contact: anxiety, depression, otitis externa, anxiety, insomnia, panic attacks, difficulty concentrating, lack of drive, lost interest in life. Dr Rakhmetova wrote that on examination the patient was anxious and jittery. On 23 May 2014, the Applicant consulted with Dr Elena Litovski at the centre, who recorded the reason for contact as “anxiety”.
On 21 September 2014, some ten weeks after the street assault, after returning from her holiday in Greece, Ms Kazakos saw Dr Rakhmetova who recorded symptoms of anxiety, insomnia, panic attacks, difficulty in concentrating and prescribed Pristiq 50mg, an antidepressant. She saw Dr Anna Velkov on 28 September 2014 and 5 October 2014 who also recorded depression as one of the reasons for that consultation.
The weight of the evidence produced in the summonsed documents and in the evidence given by the Applicant herself at the hearing is that she has a depressive condition and that it was an established condition before the street assault of 1 July 2014. Dr Hundertmark outlined the factors necessary for the diagnosis of a major depressive disorder and the majority of those have been consistently recorded in the summonsed clinical notes before the Tribunal. Of particular note is that it was recorded that the Applicant herself told Ms Sherman back in August 2011 that she had felt depressed for “2-3 years”, that is, from about 2008 or 2009.
The Respondent’s contention was that Ms Kazakos had a “lifelong constitutionally determined psychiatric disorder (Major Depressive Disorder) of fluctuating severity and effect, which condition was not caused by her employment”. The Tribunal does not conclude that Ms Kazakos’s depressive condition is “lifelong”; there is insufficient evidence for me to be satisfied to come to such a conclusion. However, there is a substantial documented history of treatment by a range of medical practitioners, both in terms of counselling and prescribing antidepressants, and referral to a clinical psychologist years before the assault.
The Tribunal therefore finds that Ms Kazakos suffers an ailment, namely a major depressive disorder condition, which had been extant for some years prior to 2011.
The next question is whether Ms Kazakos’ psychiatric condition was significantly contributed to by her employment to meet the threshold set out in section 5B(3) of the Act.
The legislative and judicial history of what is meant by the phrase “significantly contributed” was considered by Katzmann J in Comcare v Power [2015] FCA 1502. Her Honour referred to 2007 amendments to the Act which inserted section 5B and that the explanatory memorandum tabled in Parliament in relation to that amending legislation, the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007, stated the amendment to the definition of “disease” was:
To strengthen the connection between the disease and the employee’s employment.
Her Honour said, at [93]:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.
So in terms of determining whether Ms Kazakos’ psychiatric condition was contributed, to a significant degree, by her employment, the Tribunal considered the matters set out in section 5B(2) of the Act. Ms Kazakos gave evidence of a range of physical health issues she was confronting in the lead up to the assault, including sleep problems and back problems. There was also evidence of other health issues such as ear ache and weight fluctuations. Ms Kazakos also conceded that the history she gave Ms Sherman of domestic violence in the home during her formative years, a suicide attempt, an unhappy marriage which included a medically-advised termination at late term owing to an unviable foetus, and family conflict with two of her sisters and one brother-in-law, was accurate. The Tribunal concludes that all of these factors are relevant to Ms Kazakos’s complaints of feeling depressed, anxious and having panic attacks, the first substantial documented evidence of which was in her consultation with Dr Diane Patrick in August 2011. Although the street assault was something that objectively could be regarded as shocking, it was not in my view a “trigger” for a PTSD condition because there was factually a substantial history of depressive condition already. No doubt Ms Kazakos’ sleep problems and trouble with her back would not help.
The Tribunal is not satisfied on the totality of the evidence that the assault in July 2014 aggravated Ms Kazakos’ existing psychiatric condition to a degree that is substantially more than material. She had a number of years of regular treatment by medical practitioners, practice nurses and a clinical psychologist before 1 July 2014 and, although the street assault occurred shortly before she left for overseas, it is not recorded that Ms Kazakos mentioned the assault at all to her treating medical practitioners on her return from Greece or when she was referred to see Mr Boris Golub, psychologist, at St Kilda South Medical Centre on 10 October 2014 in relation to a “panic disorder”. In his clinical notes he records Ms Kazakos as reporting:
“…a long-lasting stress at work which she tried to cope with but cannot do it anymore on her own. She says that the main problem currently is her sleeping difficulty and panic attacks. In addition, she has been told recently that she was going to be transferred to another office requiring a long drive there while she suffers from diagnosed back issues producing pain.”
As noted earlier, whether there may be work factors which have played some part in the range of ingredients affecting the Applicant’s existing depressive condition is not a question before the Tribunal in relation to the claim as the ‘injury’ did not arise, as contended by the Applicant, following the assault on 1 July 2014. The conclusion that the Tribunal has reached is that the events of 1 July 2014 did not cause a condition of PTSD or, on Dr Kaplan’s secondary diagnosis, a major depressive disorder, but that the Applicant suffered from an existing depressive condition of earlier onset.
DECISION

The decision of 9 February 2016 is affirmed.

75. I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

[sgd]........................................................................
Associate
Dated: 1 June 2018

Date of hearing: 28-29 November 2017

Counsel for the Applicant: Mr Mark Carey

Solicitors for the Applicant: Ms Gabriella Giunta, Slater & Gordon

Solicitors for the Respondent: Mr Michael Snell, Lehmann Snell

[2018] AATA 1503

1 June 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Remedies

Appeal

Date of hearing:	28-29 November 2017
Counsel for the Applicant:	Mr Mark Carey
Solicitors for the Applicant:	Ms Gabriella Giunta, Slater & Gordon
Solicitors for the Respondent:	Mr Michael Snell, Lehmann Snell