Kowal and Comcare (Compensation)

[2018] AATA 4218

Kowal  and Comcare (Compensation) [2018] AATA 4218 (13 November 2018)

Division:                  GENERAL DIVISION 

File Number(s):      2017/3384 and 2017/3385 

Re:Christine Kowal 

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Member Richard West  

Date:13 November 2018  

Place:Melbourne

1.The Tribunal sets aside the Reviewable Decision of 10 April 2017, and in substitution decides that the Respondent shall pay to the Applicant compensation for incapacity for work for the periods, 1 and 2 December 2016 and from 14 December 2016 to 23 July 2018, pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act.)

2.Costs are reserved.

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

Member 

Catchwords

COMPENSATION – post traumatic stress disorder – threatening phone call – continuing incapacity – decision set aside – order that compensation be paid pursuant to s. 19 of the Safety, Rehabilitation and Compensation Act – costs reserved.

Legislation

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Member R West

13 November 2018

Initial Injury

1. The Applicant was employed from 29 June 2015 by Comcare as a Claims Manager at the APS 4 level, in the Claims and Liability Management Group (CLMG) located at 535 Bourke Street, Melbourne. She is, and was at all material times, an employee for the purposes of the SRC Act.

2. On 1 September 2015 the Applicant received a threat to kill her from a client she was speaking to on the telephone to arrange a medical appointment.  The client was located in country NSW at the time and asserted that he could not travel to Sydney for an appointment.  He became aggressive and abusive and stated You’re a fucking bitch and I am going to fucking kill you. When the Applicant asked him to stop threatening her he responded, This is not a threat, it’s a promise.  I am going to fucking kill you, fucking bitch.  When told that the Applicant would terminate the call if he did not desist, the client stated You’re nothing but a fucking bitch and I will kill you (the Initial Incident).

3. On 6 September 2015 the Applicant made a claim for compensation for stress reaction/anxiety arising from the Initial Incident.  The Applicant was assessed by Dr Lester Walton, a consultant psychiatrist, who reported on 19 November 2015 that the Applicant was suffering from an adjustment disorder with mixed anxiety and depression which resulted from the immediate aftermath of the Initial Incident.[1] The claim was accepted on 30 November 2015 in respect of an adjustment reaction with mixed emotional features. 

   [1] PT9 at pp 44-50

4. After a brief absence, the Applicant continued to attend for work following the Initial Incident.  She was supported by a rehabilitation provider and performed work under the restriction that she not have direct contact with Comcare clients. Initially she worked in the CLMG but did not perform telephone contact duties. From 11 November 2015 she worked in the Secretariat, Claims and Liability Management section which was on the sixth floor of the Comcare building at 535 Bourke Street, Melbourne, the same floor as the CLMG.  From 2 May 2016 she worked as a Legal Support Officer in the Legal Support Team which was also located on the sixth floor at 535 Bourke Street.

   Subsequent Claims

5. The Applicant was absent from work on 1 and 2 December 2017 and lodged a claim for incapacity payments in respect of the absence, under s 19 of the SRC Act[2]. The claim was refused by determination dated 9 January 2017. The Applicant was subsequently absent from work from 14 December 2017 and continuing. She lodged a further claim for incapacity payments in respect of that absence pursuant to s19 of the SRC Act.[3]  The further claim was refused by determination dated 24 January 2017.

   [2] Claim 2017/3384

   [3] Claim 2017/3385

6. The Applicant sought an independent review of the determinations of 9 January 2017 and 24 January 2017.  The review decision handed down on 10 April 2017[4] affirmed both determinations (the Reviewable Decision).  The Applicant seeks a review of the Reviewable Decision in these proceedings.

   [4] PT48 at pp 214-218

   Relevant facts

7. The Applicant gave evidence regarding the circumstances giving rise to her absence from work on 1 and 2 December 2017 and from 14 December 2017 onwards.

8. In her written statement[5] the Applicant stated that following the acceptance of her claim in respect of the Initial Incident she was transferred to a role in the Secretariat, Claims Liability Management section, subject to a restriction that she not have direct contact with clients of Comcare.  Her work area backed onto the CLMG area in which she had worked previously and she could overhear her former work colleagues during their telephone calls with clients.  She said that she could tell when a call involved a violent or aggressive caller, and hearing it she was sent backwards emotionally and would become anxious, sweaty, shaking and nauseous.  Even without overhearing such aggressive calls, she was overly concerned about people making critical comments about her and started thinking that comments were directed at her.  She said she felt worthless and had no control over her emotions.

   [5] Exhibit A1

9. In or about 6 May 2016 she transferred to a temporary position as Legal Support Officer in the Legal Support Team on a different floor to the CLMG area.  Upon commencing in the role, she attended meetings with her rehabilitation provider and her team leader, Ashley Denton.  She said that in those meetings Mr Denton assured her that, as another team member was transferring to Perth, a position would become vacant for her and make it possible for her to transfer into the role on a permanent basis.  She said that Mr Denton subsequently advised her not to apply for the vacancy because he did not want her to go through added stress by lodging an application.  She said that Mr Denton told her it would not be necessary for her to lodge an application.  Mr Denton subsequently left Comcare.

10. The Applicant stated that in October 2016 she attended a general team meeting in which her team leader, Emma McFarlane, announced that there were to be no positions within the Legal Support Officer role.  The Applicant said that she had no prior discussions or warning of the announcement and basically fell to pieces and left the meeting room.  She said that she was subsequently informed by her case manager that her temporary placement remained available with no end date, and that an ongoing external placement was being sourced for her.  She continued to attend for work.

11. The Applicant stated that in late November 2016 she met by telephone with her team leader, Kelly White, to discuss her personal development plan.  She said that Ms White informed her that another employee had been appointed to the Legal Support Officer role, which the Applicant thought was no longer available. The Applicant said that Ms White then asked her in a very blunt manner whether she was looking for work.  She said that this comment was very condescending and made in a sharp tone.  The Applicant said that following this exchange she found it difficult to continue at work. She was unable to remain focussed and the discussion had triggered mixed emotional feelings, anxiety and depression.  She remained at work that day. 

12. When the Applicant returned to work on 1 December 2016 she asked Ms White if she could leave early. Ms White replied in a very sharp and unfeeling way, saying it was okay but to make sure she completed as much work as she could before she left.  The Applicant said that this comment made her feel vulnerable, ‘ready to fall to pieces’ and she felt helpless, tired and worthless.

13. The Applicant said that she left work early on 1 December 2016 and arranged an appointment with Dr Farrow, a general practitioner, because she could not see either Dr Chatfield, her psychologist, or her regular general practitioner, Dr Vizec.  Dr Farrow provided her with a certificate of incapacity for 1 and 2 December 2016.

14. On 14 December 2016 the Applicant attended for work feeling apprehensive and exhausted.  She said she was feeling panicky, tired and fatigued and was unable to focus on tasks at hand.  She said she felt angry with her colleagues, who were happy and laughing.  She said that she felt ready to break down again and left work at about 8.00 am to attend a consultation with Dr Vizec, who issued her with a certificate of incapacity.

15. The Applicant stated that she remained off work from 14 December 2016 until August 2017; when she started a graduated return to work program in the Strategic Research and Innovation Group at Comcare. On the third day of the return to work program she was unable to cope and she left work and consulted her doctors.  She remained off work until 14 March 2018 when she commenced a graduated return to work program with the Bureau of Meteorology.

16. The Respondent tendered witness statements from Kelly White[6] and Ashley Denton[7] and admitted into evidence with the Applicant’s consent. Ms White’s statement does not contradict much of the history provided by the Applicant. It does directly contradict the Applicant in that it asserts that Ms White conducted a telephone or video meeting with the Applicant in mid-October 2016, in which she told the Applicant that the permanent role as Legal Support Officer was to go to another employee.  The Applicant was cross-examined about this contradiction and she stated that she did not recall the meeting with Ms White. Ms White also denied that she spoke to the Applicant in a sharp or unfeeling’ way or in a ‘blunt manner or in a condescending and sharp tone.  Mr Denton’s statement contradicts the Applicant in that he asserts that he encouraged her to apply for the vacant Legal Support Officer position and was disappointed that she did not do so. Under cross-examination the Applicant stated that it was her perception that Mr Denton was not encouraging her to apply for the position.

    [6] Exhibit R4

    [7] Exhibit R5

17. The Respondent asserted that the Applicant should not be regarded as a credible witness.  I was invited to conclude that this was apparent from inconsistencies in her evidence and her failure to disclose relevant information regarding her history to Professor Mendelson and other practitioners; in particular the fact that she had been the victim of a dog attack in early 1992, had been diagnosed with Post-Traumatic Stress Disorder (PTSD), and that her ex-husband had been abusive during her first marriage in the 1980’s.

18. The Applicant stated in cross-examination that she had not mentioned the dog attack because she had forgotten about it and that she was unaware that she had been diagnosed with PTSD at the time.[8]  Given that the dog attack occurred 25 years earlier it is not unreasonable that the Applicant did not include it in her history when examined by Professor Mendelson.  It is also possible that the Applicant was unaware of the diagnosis of PTSD in relation to the dog attack.  She claimed in her evidence that she did not suffer from PTSD and there was no evidence of her being treated for PTSD at the time. The evidence shows only that the diagnosis was contained in her psychologist’s clinical notes. It is possible that this diagnosis was not communicated to the Applicant.

    [8] See Exhibit A1 at [49]

19. The Applicant subsequently disclosed the dog attack to Dr Lewis and Dr Chapman.  She explained that she did so after having the incident drawn to her attention by Professor Mendelson’s report.  I am satisfied that the Applicant did not dishonestly withhold information from Professor Mendelson in relation to the dog attack.

20. As to the issue of the abuse by her former husband, Professor Mendelson notes in his report that the Applicant told him of her first marriage which ended in divorce over 28 years earlier.  No evidence of the extent or nature of any abuse was produced. Professor Mendelson chose not to question the Applicant about her previous marriage. As a result, it is pure speculation that there was any connection between the conduct of the Applicant’s first husband more than 28 years earlier and the Initial incident.  Accordingly, I accept that it was reasonable for the Applicant not to have given further details of her first marriage and I draw no inference as to her credit from her failure to do so.

21. I accept that there are some inconsistencies in the statements attributed to the Applicant in various medical reports, although they are matters of detail.  I also note that at times the Applicant became argumentative during cross-examination. But overall, the Applicant presented as an open and co-operative witness. I am satisfied that she was a truthful witness.

22. I do not regard the inconsistencies between the statements of Ms White and Mr Denton and the Applicant’s evidence as being material to the issues to be decided in this case.  The fact that the Applicant’s perception of events did not precisely accord with those of Ms White and Mr Denton is understandable given her psychological condition at the time.

23. Having regard to all of the evidence, I am satisfied that the Applicant’s absences from work on 1 and 2 December 2016 and from 14 December 2016 were a direct result of her reaction to the events she described, and in particular to her perception of what transpired in relation to the filling of the Legal Support Officer vacancy in October 2016.  The substantive issue to be decided in this case is whether the Applicant was incapacitated for work at these times as a result of a condition caused by the Initial Incident.

    Contentions

24. Under s.19 of the SRC Act an employee who is incapacitated for work as a result of an injury is entitled to compensation in accordance with that section. An ‘injury’ is an injury arising out of, or in the course of, the employee’s employment and includes a mental injury[9] .

    [9] Section 5A(1) of the SRC Act

25. The Applicant contends that she was incapacitated for work on 1 and 2 December 2016 and from 14 December 2016 due to chronic PTSD and major depression resulting from the Initial Incident.

26. The Respondent contends that the Applicant was not incapacitated for work on 1 and 2 December 2016 and from 14 December 2016 due to chronic PTSD and major depression resulting from the Initial Incident.  First, the Respondent contends that the Applicant had not been suffering from chronic PTSD and major depression as a result of the Initial Incident but had suffered from an adjustment disorder which had resolved before 1 December 2016. Secondly, the Respondent contends that the Applicant was not incapacitated due to any recognised psychiatric condition on 1 and 2 December 2016 and from 14 December 2016, but rather was absent from work because she was angry with Comcare because she had not received a permanent position.

27. In the alternative, the Respondent contends that, if the Applicant’s absences on 1 and 2 December and after 14 December 2016 were due to a psychological incapacity, it was the result of a new injury and not attributable to the Initial Incident.

    Medical Evidence

28. The Applicant and her husband, Ewhen Kowal, gave evidence that the Applicant’s symptoms following the Initial Incident continued (subject to fluctuations in their severity) until the events in October – December 2016.  Various reports from the Applicant’s general practitioner, Dr Vladimir Vizac, were tendered in evidence.[10] The reports indicate that the Applicant was treated continuously from the Initial Incident for PTSD, anxiety and reactive depression with psychological counselling (Mr Chatfield), Diazepam 5 mg daily and Pristiq 50 mg daily increased to 100 mg daily.  Dr Vizac or his partner Dr Farrow provided certificates indicating that the Applicant was unfit for work on 1 and 2 December 2016 and from 14 December 2016.  Dr Chatfield’s evidence was that the Applicant continued to experience the symptoms of PTSD with fluctuating severity.

    [10] PT30

29. The Applicant relied on medical reports by a number of medical practitioners to establish that she was suffering from PTSD arising from the Initial Incident.

30. Dr Zeeva Cohen, consultant psychiatrist, who examined the Applicant on 12 July 2016[11], diagnosed the Applicant as suffering from PTSD in the context of a threatening phone call where she felt in fear of her life.  Dr Cohen confirmed her diagnosis in her report of 10 April 2017.[12] She opined that the Applicant’s condition at that time was a continuation of the Initial Incident, which had eroded her capacity to cope and sensitised her to stressors at work.  She specifically stated that in her view a new incident had not occurred in December 2016, but rather that cumulative stressors had overwhelmed the Applicant’s capacity to cope as she had diminished resilience following the Initial Incident.

    [11] PT21 at pp108-114

    [12] T49 at p219-227

31. Dr Robert Chatfield, a clinical psychologist, who conducted 44 consultations with the Applicant[13] on a fortnightly basis following the Initial Incident, provided reports on the Applicant’s condition and appeared as a witness at the hearing.  He reported to Comcare on 15 June 2016[14] that the Applicant’s anxiety symptoms had generally improved and that she was responding well to the strategies and techniques he had identified. In his reports of 9 January 2017 and 31 January 2017 he noted that her symptoms of PTSD (as evaluated on the DASS 21 and K10 scales) were at the severe or extremely severe level; and had been exacerbated by an incident at work on 2 December 2016.  In his oral evidence he confirmed his diagnosis of PTSD and stated that the Applicant’s underlying symptoms of PTSD arising from the Initial Incident were being managed, but the Applicant had over-reacted to the events of October – December 2016 because she lacked normal resilience as a result of her PTSD.

    [13] See Exhibit R6– see also T16, 32, 36 and 44

    [14] T20 at p83

32. Dr Ravinda Srinivasaraja, consultant psychiatrist, who had treated the Applicant, opined in his reports of 20 February 2017[15] and 22 August 2017 that the Applicant was suffering from chronic PTSD with dysthymia, arising from the Initial Incident.

    [15] T42 at p179

33. Dr Catherine Nyuthe, consultant psychiatrist, who examined the Applicant on 10 February 2017, concluded in her report of 2 March 2017[16] that the Applicant ..meets all of the diagnostic criteria of post-traumatic stress disorder and comorbid major depressive disorder.

    [16] T43 at p183

34. Dr Justin Lewis, consultant psychiatrist, examined the Applicant on 9 February 2018.  In his report of 11 February 2018[17] he assessed the Applicant’s condition as at February 2018 as:

    ·suffering from PTSD with symptoms that have been of a continuous nature since the Initial Incident;

    ·exhibiting a marked exacerbation in traumatisation symptoms including feelings of unsafety,  insecurity and increased frequency of traumatic flashbacks in response to not having secured a permanent position in late 2016; and

    ·completely incapacitated for pre-injury duties, although may be capable of undertaking administrative duties in a quiet, low-stimulus, paced environment with three days per week/four hours per day recommended.

    [17] Exhibit A3

35. Dr Lewis gave evidence at the hearing.  He confirmed his diagnosis and expressed the view that the Applicant had presented her symptoms honestly and without embellishment when he consulted with her.

36. The Respondent’s submissions rely heavily on the evidence of Professor Mendelson.

37. Professor Mendelson, in his report of 17 November 2017[18] opined that:

    ·the Applicant had developed anxiety symptoms as a result of the Initial Incident and a diagnosis of adjustment disorder with anxiety was appropriate; 

    ·the adjustment disorder would have resolved within three to six months once the Applicant resumed work in a position where she did not have to deal with the public; 

    ·the Applicant had not developed PTSD as a result of the Initial Incident; and 

    ·the manifestations of anxiety described to him by the Applicant during his examination on 4 October 2017 were attributable to her dispute with Comcare and involvement in litigation rather than being directly due to the Initial Incident.

    [18] Exhibit R2

1. Professor Mendelson’s report contains contrary diagnoses to those of psychiatrists Drs Cohen, Srinivasaraja and Nyuthe and psychologist Dr Chatfield. However, it does not set out a reasoned basis for disputing those diagnoses beyond stating his opinion that during the consultation with him the Applicant did not describe symptoms that must be present to meet the diagnostic criteria for PTSD.

2. Professor Mendelson gave evidence at the hearing and expanded on the basis for his conclusions.  He acknowledged that the Applicant had reported to him some symptoms consistent with PTSD but noted that the Applicant had not indicated that she was experiencing flashbacks (as opposed to a recollection or memory of the events); nor that she had nightmares or disturbed sleep (as opposed to a difficulty sleeping).  In particular, he emphasised that a diagnosis of PTSD requires that the person be subject to a ‘realistic’ threat of death or serious injury and that the threats made against the Applicant in the Initial Incident were not realistic.  Professor Mendelson pointed to the fact that the abusive client did not know the Applicant, was located in rural NSW and had asserted that he was unable to travel to Sydney for an appointment.  On this basis, he concluded that the threat did not amount to a realistic threat from which PTSD could result.

3. Professor Mendelson also disputed the validity of the DSM-V[19] diagnostic tool, relied on by Dr Chatfield and others, indicating that he preferred the ICD 10[20] assessment.

   [19] Diagnostic and Statistical Manual of Mental Disorders, 5^th edition published by the American Psychiatric Association

   [20] International Classification of Diseases published in 1992 by the World Health Organisation

4. I have had regard to all of the medical evidence and the evidence of the other witnesses.  The assessment of the medical evidence ‘is not a numbers game’.  The fact that the majority of medical practitioners favour a particular diagnosis does not preclude the Tribunal from accepting a diagnosis made by the minority.  However, in assessing the competing views of the medical experts it is relevant that a majority of appropriately qualified experts have reached a particular view.

5. In this case, a diagnosis of PTSD arising from the Initial Incident has been made by three consultant psychiatrists, Dr Nyuthe, an independent expert engaged by the Respondent to assess the Applicant, Dr Srinivasaraja, a treating practitioner, and Dr Lewis an independent expert engaged by the Applicant. Their assessment is shared by Dr Chatfield, a clinical psychologist who had treated the Applicant extensively.

6. Dr Mendelson’s diagnosis is against the weight of that opinion, but it is supported by the diagnosis of Dr Lester Walton, consultant psychiatrist, who examined the Applicant on 21 October 2015[21] and concluded that the Applicant was suffering from an adjustment disorder with mixed anxiety and depression. Dr Walton did state that some of the Applicant’s symptoms were clearly post-traumatic in nature but he concluded that they were not severe enough to warrant a diagnosis of PTSD.

   [21] PT9 at pp 44-50

7. Dr Mendelson’s assessment is based on the information provided to him by the Applicant during his consultation, and in the medical reports available to him at the time.  His observations regarding the extent to which the Applicant reported symptoms consistent with PTSD is at odds with the observations of the other psychiatrists who reported that the Applicant had experienced flashbacks and other indicia of PTSD. Dr Mendelson’s assessment that the threat to the Applicant was not realistic is disputed by the Applicant, who gave evidence that she was concerned that the abusive client could find out her name.  In addition, it ignores the statement by the abusive client that, This is not a threat, it’s a promise….  In addition, Dr Mendelson’s view is based on a presumption that the client was incapable of carrying out the threat.  He had no actual knowledge of the client’s state of mind or circumstances other than his location in rural NSW. Each of the other medical practitioners accepted that the threat was a sufficient basis for a diagnosis of PTSD.

8. Professor Mendelson’s conclusion that the Applicant’s adjustment disorder would have resolved within three to six months is at odds with the observations of the Applicant’s condition noted in various medical reports throughout the period after the Initial Incident. These reports indicate a pattern of continuing symptoms with varying intensity. This is consistent with the evidence of the Applicant’s husband, Ewhen Kowal,[22] and of the Applicant herself.

   [22] Exhibit A2

9. Finally, Professor Mendelson concluded that the Applicant’s current manifestations of anxiety, as reported to him in the consultation on 4 October 2017, were attributable to her dispute with Comcare and involvement in litigation; and he anticipated that she would not return to work prior to finalisation of all litigation related to her claims.  This conclusion is at odds with the evidence.  The Applicant unsuccessfully attempted to return to work at Comcare in December 2017;[23] and successfully undertook a graduated return to work at the Bureau of Meteorology from 14 March 2018.  At the time of the hearing the Applicant was working full time at the Bureau. Having considered the reasoning of Professor Mendelson, I am not satisfied that his view should be preferred to the diagnoses of the other practitioners.

   [23] See Exhibit A1 at [52]

   Conclusion

10. Having considered all of the evidence, I am satisfied that the Applicant suffered from PTSD as a result of the Initial Incident and that she experienced an exacerbation of the PTSD symptoms in December 2016; which resulted in her total incapacity for work on 1 and 2 December 2016 and from 14 December 2016 until 14 March 2018, when she commenced a graduated return to work program at the Bureau of Meteorology.  I find that there was a partial incapacity from 14 March 2018 until 23 July 2018 when she commenced full time employment at the Bureau of Meteorology.

    Decision

11. The Reviewable Decision of 10 April 2017 is set aside.

12. The Respondent shall pay to the Applicant compensation for incapacity for work for the periods, 1 and 2 December 2016 and from 14 December 2016 to 23 July 2018, pursuant to section 19 of the SRC Act.

    Costs

13. The Applicant seeks an order that the Respondent pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act (the Application).  I reserve my decision in relation to costs and direct that the parties file and serve written submissions in relation to the Application within 21 days of the date of this decision.  Unless either party requests the listing of the Application for a hearing, I will decide the Application having regard to the written submissions.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

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

Associate

Dated: 13 November 2018

Date(s) of hearing:	8 - 10 August 2018
Counsel for the Applicant:	Joe Ferwerda
Solicitors for the Applicant:	Arnold Thomas & Becker
Counsel for the Respondent:	Ray Ternes
Solicitors for the Respondent:	Sparke Helmore