Lawrence and Comcare
[2011] AATA 752
•26 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 752
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2255
GENERAL ADMINISTRATIVE DIVISION ) Re AMANDA LAWRENCE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr B. Hughson, MemberDate26 October 2011
PlaceCanberra
Decision The decision under review is affirmed.
....................[sgd]..........................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - bipolar affective disorder - hypomania - depression - family history - episodic ailment – manic and depressive episodes multifactorial - ailment symptomatic in the context of employment – altered perceptions - employment not a significant contributing factor - decision affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AA)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Brackenreg v Comcare [2010] FCA 724
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare v Sahu-Kahn (2007) 156 FCR 536
Jones v Dunkel (1959) 101 CLR 298
Purkess and Crittenden [1965] 114 CLR 164
Shorey v PT Limited (as Trustee for McNamara Property Trust) [2003] HCA 27
Watts v Rake [1960] 108 CLR 158
REASONS FOR DECISION
26 October 2011 Mr S. Webb, Member
Dr B. Hughson, Member1.Amanda Lawrence suffers from Bipolar Disorder. In the course of her employment by the Department of Foreign Affairs and Trade (DFAT), when returning to work after a period of maternity leave, she experienced manic and depressive episodes of the Disorder. She claimed compensation. Comcare decided to reject her claim by primary determination and on reconsideration. Ms Lawrence applied for review.
2.Many relevant facts are not in dispute. These are set out in the parties’ Statements of Facts, Issues and Contentions. We note, in particular, paragraphs 5 to 13 inclusive and 18 to 21 inclusive of the Applicant’s Statement with reference to paragraphs 7 and 11 to 14 inclusive of the Respondent’s Statement.
3.During the hearing, counsel for Comcare, Ms Callan, sought to tender five volumes of summonsed documents. These were not taken in. Instead, Ms Callan tendered a List of Relevant Summonsed Documents (the List), setting out page references to all of the summonsed documents relied upon by Comcare. No objection was raised to the tender. The subject documents identified in the List were taken in and labelled Exhibit R13. After the hearing, however, a number of discrepancies and errors were identified in the List. Comcare filed amended versions of the List on 19 September 2011 and 28 September 2011, correcting errors and adding documents. The Applicant did not object to the revised tender in the terms of Comcare’s amended List – she was given an opportunity, but expressly declined to be heard on this issue. That being so, the contents of Exhibit R13 were amended to reflect the final List filed by Comcare, and a file note of Dr Priyani Ratnayake dated 4 April 2008 was taken in separately and labelled Exhibit R14.
4.At the hearing, Ms Lawrence’s counsel, Mr Anforth, raised issues concerning compensation for incapacity and medical treatment expenses relating to her claimed injuries. Following discussion, Mr Anforth informed us that these issues would not be pressed in these proceedings. We accept Mr Anforth’s concession on this point and we will proceed on that basis.
5.The issue for determination, therefore, is whether Ms Lawrence suffered one or more injuries for which Comcare is liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act). Specifically did Ms Lawrence’s employment contribute to a significant degree to the manic and depressive episodes of Bipolar Disorder in 2008?
6.There is also an issue of credit to address concerning the reliability of Ms Lawrence’s evidence. We will deal with this issue first.
Is Ms Lawrence’s evidence reliable?
7.Perhaps the first thing to say is that Ms Lawrence suffers from a psychiatric disorder that may affect her mental state from time to time, but there is no evidence that her mental capacity was in any way impaired during the hearing.
8.Secondly, we accept that things she is reported to have said when she was psychiatrically unwell may not be reliable. Without reliable corroboration, however, we do not accept Ms Lawrence’s evidence that the medical records to which she was taken wrongly record what she said at the time. It appears to us that the contemporaneous nature of these records renders them more reliable evidence of the particular circumstances that existed when they were created, including things that were said at the time, than the retrospective evidence of Ms Lawrence. What is to be made of records of this kind is another matter, of course. Plainly enough, they may not be reliable evidence of the existence or significance of events to which Ms Lawrence is said to have referred at the time.
9.Thirdly, many of the events traversed with Ms Lawrence in her oral evidence occurred up to 14 years ago, and those events involved episodes of illness that may well have affected her mental state. It can readily be accepted that memories fade or change with the passage of time, especially in such circumstances. Perhaps understandably, Ms Lawrence experienced difficulty remembering details of events that occurred some time ago. It appears to us, nevertheless, that there is a remarkable consistency in her reported medical history when obtaining medical treatment; the inconsistencies arise in the context of her claims for compensation. The extent to which her oral evidence is not consistent with the contemporaneous medical records, concerning reports of manic episodes prior to 2002 for example, is consistent with this pattern. These inconsistencies are not adequately explained by the purported unreliability of accounts she may have provided when unwell or by the adverse effect of time on her memory.
10.It is possible that Ms Lawrence is simply dissembling in order to obtain a benefit. But we make no such finding - she may well believe that her oral evidence is true. The important point for us, presently, is that we have serious concerns about the reliability of her oral evidence. When dealing with controversial points, we are not prepared to accept her evidence without reliable corroboration
Did Ms Lawrence’s employment contribute to a significant degree to the manic and depressive episodes of Bipolar Disorder in 2008?
11. The issue of causation is to be decided under the terms of the Act. An ‘injury’ is defined in section 5A to include a ‘disease suffered by an employee’. Section 5B defines ‘disease’ to mean an ‘ailment suffered by an employee’ or ‘an aggravation of such an ailment’ ‘that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth’. The phrase ‘significant degree’ means ‘a degree that is substantially more than material’: section 5B(3). When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2).
12. It would be wrong to assume that the assessment of ‘significant degree’ is simply relativistic; it is not. What Finn J said in Comcare v Sahu-Kahn[1] in respect of the material degree test is apposite here in relation to the significant degree test: it “imposes an evaluative threshold below which a causal connection may be disregarded”[2]. This assessment requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute significantly to the suffering of the ailment. It is beside the point, and it matters not, that one factor contributes to a greater extent than another if the contribution is to a significant degree. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’.
[1] (2007) 156 FCR 536.
[2] Comcare v Sahu-Kahn (2007) 156 FCR 536, 542.
13. Having regard to the matters set out in section 5B(2), this requires an evaluation of the evidence in respect of factors that significantly contributed to cause or aggravate the episodes of Ms Lawrence’s Bipolar Disorder in 2008. These are matters of fact and degree in the particular circumstances.
14. Ms Lawrence asserts that her Bipolar Disorder arose in a manic episode in 2002 that was work-caused. She says that she never fully recovered and she experienced symptoms and required medical treatment of the Disorder thereafter. She says that in an injury claim such as this, involving multiple contributing factors to an episode of disease and a previous employment-related injury in the form of the disease, the burden on a claimant to positively establish liability against (in this case) Comcare, transfers to Comcare to dispositively establish that factors not related to the employment caused the injury claimed. Even so, in Ms Lawrence’s submission, elements of her employment significantly contributed to the manic and depressive episodes of her Bipolar Disorder in that year.
15. At the hearing, Mr Anforth handed up written submissions – Applicant’s Opening – to which he returned when making oral submissions in closing, urging us to conclude that the manic and depressive episodes, separately or in combination, constituted a fresh injury, in the form of an aggravation of Ms Lawrence’s Disorder or a further manifestation of her earlier injury in 2002.
16. Considering these matters, there are four issues to address:
(a)Were the episodes of Bipolar Disorder in 2008 manifestations of the work-injury in 2002?
(b)Is there an onus on Comcare?
(c)Did Ms Lawrence’s employment contribute to the manic episode in 2008 to a significant degree?
(d)Did Ms Lawrence’s employment contribute to the depressive episode in 2008 to a significant degree?
Were the episodes of Bipolar Disorder in 2008 manifestations of the work-injury in 2002?
17. In Ms Lawrence’s submission the work-injury in 2002 caused the first episode of Bipolar Disorder – a manic episode followed by a depressive episode. She says that this injury rendered the Disorder symptomatic and she has been adversely affected by it ever since. She asserts that the work-caused episodes in 2002 were operative in the episodes she experienced in 2008.
Was the work-injury in 2002 the first episode of the Disorder?
18.Ms Lawrence says that the Disorder was rendered symptomatic by her employment and commenced with the manic episode in 2002.
19.On the evidence of Dr Burger[3], a treating psychiatrist, with whom Dr Rose and Dr Allnutt, consultant psychiatrists, agreed, we find that Ms Lawrence experienced depressive episodes of the Disorder in 1997 and 2001. We note Dr Lim’s report that Ms Lawrence “was formally diagnosed with the disorder in 2001”[4]. There are accounts of Ms Lawrence reporting “at least 4 previous episodes”[5] and “a history of manic episodes”[6]. We note that Ms Lawrence has a family history of Bipolar Disorder[7]. The medical records from 2002 record that “She stated that her first memory of her manic episode was when her parents divorced”[8]. But these records were made when Ms Lawrence was not well and they may not be reliable. They establish no more than the possibility that the Disorder was first manifest when Ms Lawrence was 16 or 17, when her parents divorced. We are reasonably satisfied that the 2002 injury aggravated an episode of Ms Lawrence’s already existing Bipolar Disorder.
[3] Exhibit R13, p 290.
[4] T25 folio 92.
[5] Exhibit R13, p 1028.
[6] Exhibit R13, p 1032.
[7] Exhibit R6, p2; Exhibit R7, p5; Exhibit A4, p3.
[8] Exhibit R13, p 1028.
20.The answer to this question is No.
Were the work-related episodes in 2002 operative in episodes in 2008?
21. Ms Lawrence says that work-related episodes of the Disorder in 2002 (and conceivably 2001) were operative in the episodes she experienced in 2008.
22. We have found that Ms Lawrence first experienced symptoms and episodes of the Disorder well before 2002, probably in 1997 but possibly in the late 1980s, when she was a teenager. Ms Lawrence experienced a depressive episode in 2001 and a manic episode in 2002 that was followed by a depressive episode. These episodes were manifestations of her already existing Disorder, albeit aggravated by sleep-deprivation as a result of her employment. The evidence of Dr Burger establishes that she recovered from the episodes in 2001 and 2002, and she was well in December 2003[9]. It appears that symptoms of the Disorder were largely in remission until 2007. That being so, we are reasonably satisfied that the work-related episodes in 2002 resolved and they were not operative in 2008.
[9] Exhibit R13, pp 290, 304 and 307.
23. We note the evidence of Dr George, a consultant psychiatrist, and Dr Rose concerning the on-going nature of Ms Lawrence’s Bipolar Disorder from onset. Their evidence simply establishes that Ms Lawrence’s Bipolar Disorder did not resolve at any time between 2002 and 2008. We accept that evidence, noting that Bipolar Disorder is a chronic illness with a low recovery rate. It should not be assumed that a remission of symptoms between episodes signifies recovery from the Disorder - it does not. Nor is it established that the injury in 2002 caused the onset of the Disorder, or rendered it symptomatic – it did not.
24. Bipolar Disorder is an episodic neurochemical disorder. Commonly, sufferers experience affective episodes that may have manic or depressive features. The duration and intensity of episodes varies and there may be periods of full or partial remission between episodes, although “About 20 to 30 per cent of episodes are biphasic (mania with subsequent switch into depression, or depression with subsequent switch into hypomania/mania)”[10]. On this evidence it is likely that the episodes Ms Lawrence experienced in 2001 and 2002 were biphasic. But this does not mean that they continued to operate in 2008. We are satisfied that they did not.
[10] Exhibit R12, Jules Angst, ‘Course and prognosis of mood disorders’ in New Oxford Textbook of Psychiatry (Oxford University Press, 2009) 665.
25. The answer to this question is No.
Is there an onus on Comcare?
26. Ms Lawrence submits that the episodes of her Disorder in 2008 were multifactorial and, as her employment contributed to the genesis or progress of her Disorder and to the episodes in 2008, there is an onus on Comcare to establish, dispositively, that those episodes were caused by non-employment factors.
27. Under section 33(1AA) of the Administrative Appeals Tribunal Act 1975 Comcare must use its ‘best endeavours’ to assist the Tribunal to make the correct or preferable decision in these proceedings.
28. Strictly, there is no legal onus of proof in proceedings of this kind before the Tribunal[11]. In judicial proceedings before a court the concept of an ‘onus’ has two aspects: the burden of proof as a matter of law; and the burden of proof as a matter of introducing evidence[12]. But the Tribunal is not a court and the issue of an onus must be considered in relation to the essentially administrative, non-adversarial character of Tribunal proceedings. When conducting a review under the Act, the Tribunal makes a fresh decision, standing in the shoes of the decision-maker. The rules of evidence do not strictly apply. Bearing in mind what Burchett J said in Brackenreg v Comcare[13], the nature of the determination to be made will indicate what the Tribunal should do if it is left in a state of uncertainty.
[11] Brackenreg v Comcare [2010] FCA 724 at [60].
[12] Purkess v Crittenden [1965] 114 CLR 164, per Barwick CJ, Kitto and Taylor JJ at 167 - 168.
[13] [2010] FCA 724 at [51] - [61].
29. Most commonly, when making decisions on review, even though the Tribunal has inquisitorial powers, it relies on materials that are placed before it by parties to proceedings. In this regard, as a matter of practicality and commonsense, while there is no evidentiary onus, there is a balance of persuasion in respect to evidence, where the party seeking to disturb the existing state of affairs may bear the burden of adducing probative evidence for that purpose. The point of Ms Lawrence’s submission goes to the reversal of this burden in certain circumstances. In Shorey v PT Limited[14] Kirby J referred to an evidentiary presumption[15] described by Dixon CJ in Watts v Rake[16] -
[14] [2003] HCA 27.
[15] Shorey v PT Limited (as Trustee for McNamara Property Trust) [2003] HCA 27 at [41]-[49].
[16] [1960] 108 CLR 158 at 160.
“a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.”
The majority in Purkess v Crittenden[17] addressed a similar point -
[17] [1965] 114 CLR 164.
“where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant”[18].
[18] [1965] 114 CLR 164, per Barwick CJ, Kitto and Taylor JJ at 168.
These cases, it must be remembered, concerned actions for the award of common law damages, where disability or incapacity resulted from multiple causes of which the specific tortious injury was but one.
30. Ms Lawrence’s case has a different character, with different features. It concerns Comcare’s liability under section 14 of the Act in respect of a claimed injury in the form of a disease. This section has been described as a gateway provision: once successfully opened, compensation under particular heads of entitlement may flow, subject to claim. As we have said, the correct test in respect of a claimed injury in the form of a disease is whether the employment contributed to the particular ailment, to a significant degree. Thus, if it is established by evidence that the employment contributed to the ailment, but the ailment is the result of multiple contributing factors, the determinative point is whether the employment contribution is to a significant degree. In those circumstances, it may not be dispositive to establish that other factors not relating to the employment also contributed to the ailment, or contributed to a significant degree. In other words, if there is an informal burden of persuasion, the burden concerns the introduction of evidence to establish that the employment contributed to the ailment to a significant degree. It matters not that other causes may also have contributed to a significant degree. If the evidence does not establish that the employment contributed to the ailment to a significant degree, but contributed to a lesser degree, the claim must fail.
31. With regard to which party bears the burden of persuasion, it may be that the party seeking to disturb the status quo feels the burden most heavily; most commonly in a case such as this under section 14 of the Act, this is the claimant. But the obligation of the decision-maker to use its best endeavours to assist the Tribunal to make the correct or preferable decision adds its weight to the burden (in this case) on Comcare.
32. Presently, it is not established that Ms Lawrence’s ailment in 2008 was the result of her accepted injury in 2002 or that the 2002 injury had any on-going effect in 2008. This, of course, distinguishes Ms Lawrence’s case from those to which she has referred for authority on this point. Additionally, as will appear, we are reasonably satisfied that Ms Lawrence’s employment did not causally contribute to her claimed injuries in 2008 to a significant degree.
33. For these reasons Ms Lawrence’s submission fails and the answer to this question is No.
Did Ms Lawrence’s employment contribute to the manic episode in 2008 to a significant degree?
34. Ms Lawrence says that employment stressors accumulated over time or formed a pattern that significantly contributed to the manic episode in 2008. Additionally, in her submission, three elements of her employment significantly contributed to that episode and incontrovertibly establish her claim:
(a)her 2002 injury rendered her more susceptible to experience more frequent or more severe episodes of Bipolar Disorder, especially in relation to her employment;
(b)prior to resuming employment in February 2008 after a long period of maternity leave, she experienced anticipatory anxiety about returning to work in a new area; and,
(c)on resuming work in a new and busy area, she was not provided with adequate training and support - she felt under-utilised and frustrated, and experienced work stress as a result.
She asserts that these factors, separately and in combination, were significant contributors to the onset or progress of the manic episode that caused incapacity for work from 17 March 2008 – the date of injury claimed - and required hospitalisation on 1 April 2008.
Did employment stressors accumulate over time or form a pattern that contributed to the episodes in 2008?
35.Ms Lawrence relies on the evidence of Dr Allnutt that the episodes of her Disorder describe a pattern in which events in her employment accumulated as stressors over time and, ultimately, contributed in a significant degree to the episodes she experienced in 2008.
36.Dr Allnutt gave evidence that stressors accumulate over time and episodes of the Disorder may occur when coping mechanisms fail. He drew an analogy with a glass of water – like pouring water into a glass, stresses accumulate and then overflow. That, in his opinion, is what occurred in Ms Lawrence’s case: successive factors, including factors relating to her employment, each added its measure to the onset of symptoms in 2008.
37.There is a dispute about when Ms Lawrence first experienced mood symptoms associated with the manic episode that caused her to be hospitalised on 1 April 2008. In that context it appears that her partner, Ricky Simons, informed Dr Ratnayake, a treating psychiatrist, that Ms Lawrence had been relapsing since October 2007 – “Her irritability gradually got worse and she started losing sleep. Initially it was due to her two children waking up at night but later she was unable to sleep and would not get more than 5 hours at night. She also became more garrulous and difficult to talk to.”[19] Furthermore, he appears to have repeated this history on her admission to the Canberra Hospital on 4 May 2008[20]. When cross-examined on this point, Mr Simons could not recall saying these things[21]. These matters were put to Ms Lawrence and she denied any change in her behaviour, including increasing irritability, in or about October 2007. The Doctor was not available to give evidence, so her evidence could not be tested.
[19] Exhibit R14.
[20] Exhibit R13, p644.
[21] Exhibit A2 refers.
38.The proposition that the hospital admission records and Dr Ratnayake’s written account are incorrect is simply not credible and we do not accept it. We accept that these materials accurately reflect or paraphrase what Mr Simons said at the time. We give greater weight to this documentary evidence than to the retrospective and less reliable evidence of Mr Simons and Ms Lawrence. We find, therefore, that Ms Lawrence’s manic episode in 2008 commenced with the onset of symptoms in or about October 2007, outside the context of her employment. Making that finding, we are mindful of Dr Ratnayake’s note: “Absolute duration of this manic episode 1/4/8 – 15/7/8”[22]. This note simply refers to the period in which the manic episode required Ms Lawrence to be hospitalised.
[22] T25d folio 113.
39.With regard to the proposition that employment stressors may have accumulated prior to the onset of symptoms in October 2007, we note that Ms Lawrence’s employment records reveal that she attended her employment from mid-2005 until 18 January 2007, when she left on maternity leave. Having regard to the contemporaneous medical notes, we find that the stressors that accumulated prior to the onset of symptoms in or about October 2007 included tiredness and fatigue over a period of preceding months[23]. It appears that Ms Lawrence was mildly symptomatic in January 2007[24], but the symptoms resolved by 6 February 2007[25]. On 30 May 2007 a Canberra Hospital case worker noted that Ms Lawrence “reported that she has been quite exhausted and fatigued due to getting up to her children during the night. Being woken 3-4 times. Feels she is coping okay at present, but is very aware that given her history, sustained sleep deprivation may precipitate a deterioration. Amanda noted that she has been significantly more fatigued following this pregnancy compared with her previous ones”[26]. On 4 September 2007 Dr Lim noted “Mood okay, not depressed. Tired physically” and “Sleep okay. Appetite okay. Mind not racing”[27].
[23] T25a folio 98 and 100; Exhibit R4, clinical notes 6 February 2007 and 4 August 2007 [sic – 4 September 2007]; Exhibit R13, pp 1077-1079.
[24] T25a folio 97; Exhibit R4, clinical note 8 January 2007.
[25] T25a folio 98; Exhibit R4, clinical note 6 February 2007.
[26] Exhibit R13, p 1078.
[27] T25a folio 100; Exhibit R4 clinical note 4 August 2007 [sic – 4 September 2007].
40.Considering these pieces of evidence, the possibility that accumulated employment stressors significantly contributed to the onset of mood symptoms in or about October 2007 (or thereafter) appears somewhat remote. When the distance in time between Ms Lawrence’s departure on maternity leave in January 2007 and the onset of mood symptoms in October 2007 is considered in the light of other intervening events, including changes in Ms Lawrence’s family circumstances and the tiredness and fatigue she complained about, if any accumulated employment stressors at that time, and it is not clear what these may have been, made any contribution to the manic episode, the degree of that contribution would have been small. For this reason we are not satisfied that accumulated employment stressors made a significant contribution to the onset of mood symptoms in or about October 2007 or to the progress of the manic episode that followed.
41.Dr Allnutt also gave evidence that there is a pattern of clinical significance relating to employment in the affective episodes Ms Lawrence experienced in 2002 and 2008. According to Dr Allnutt the pattern was not displaced by Ms Lawrence’s return to work in December 2004 without adverse effect. We have reviewed the evidence concerning stressors that contributed to the episodes of Ms Lawrence’s Disorder in 1997, 2001, 2002 and 2008. No discernable pattern of stressors emerges in respect of the affective episodes to which we have referred. The proposition that employment is a common thread, describing a pattern of stressors or causation, is, to our mind, simply too general and too tenuous. Even though employment may feature to some extent in the circumstances surrounding Ms Lawrence’s affective episodes in 1997, 2001, 2002 and 2008, one must examine the specific features of the employment that was said to be relevant in each case. The stressors that precipitated the 1997 episode related to a period of high stress consequent upon Ms Lawrence’s father becoming unwell and her return from employment overseas. The stressors that precipitated the episode in 2001 included working long hours “under the hammer”[28] and interpersonal issues in the context of employment – “things were not right at home and work”[29]. By Ms Lawrence’s own account, the particular trigger for the 2002 episode was sleep-deprivation while undertaking night shift work in her employment from January 2002[30]. It appears to us that the triggers for the manic episode in 2008 were fatigue, tiredness and sleep issues outside the frame of employment. Ms Lawrence asserts that anticipatory anxiety about returning to work and work stresses as a result of inadequate training in a new and busy area were also operative factors. But there is no evidence that stressors of this kind were operative in any previous episode of her Disorder. Thus, to our mind, these specific features do not describe a pattern of stressors relating to Ms Lawrence’s employment.
[28] Oral evidence of Ms Lawrence.
[29] Exhibit R13, pp 290 and 1028.
[30] Exhibit A1, p3 at [6].
42.For these reasons we do not accept Dr Allnutt’s evidence on this point. If there is any similarity between the operative factors in 2002 and the circumstances in which the 2008 episodes occurred, it is in relation to sleep deprivation; in 2002 this related to work, but in 2008 it did not.
43.The answer to this question is No.
Did the episodes in 2002 have a kindling effect that contributed to the manic episode in 2008 to a significant degree?
44.Ms Lawrence asserts that the work-related episodes in 2002 evoked a kindling effect, increasing her susceptibility or vulnerability to suffer further episodes more frequently or more severely, and this significantly contributed to the episodes she suffered in 2008.
45.At first blush, the psychiatric text in Exhibit 12 appears to lend weight to this proposition –
“Precipitating events play an important role in the onset of the first few affective episodes; thereafter recurrence seems to become gradually autonomous with stressful events contributing little or nothing to the process. Stressors may not only precipitate episodes [of Bipolar Disorder] but also increase a pre-existing vulnerability, sensitizing the individual and thereby making him or her more vulnerable to further episodes (kindling effect)”[31].
[31] Exhibit R12, Jules Angst, ‘Course and prognosis of mood disorders’ in New Oxford Textbook of Psychiatry (Oxford University Press, 2009) 665,and 666.
46.When questioned by the Tribunal on this point, Dr Rose and Dr Allnutt agreed that the ‘kindling’ effect exists as a possibility, but the possibility is not proven – it is a theory, or a hypothesis that is not presently supported by conclusive scientific research or biological evidence. We accept this evidence. Of course, we cannot rule out the possibility that Ms Lawrence was affected by the episode in 2002 in the manner for which she contends; she may have been. But on the evidence of Dr Allnutt and Dr Rose, that possibility is not established as a probability. For this reason the proposition that the manic episode in 2002 (or an earlier episode in 2001) increased Ms Lawrence’s vulnerability to suffer a further episode and, thereby, contributed to the episodes she experienced in 2008 is not made out.
47.The answer to this question, therefore, is No.
Did Ms Lawrence’s anxiety about returning to work contribute to the manic episode in 2008 to a significant degree?
48.Ms Lawrence says that in January 2008, after a long period of maternity leave, she suffered anxiety about returning to work in a new and busy area with which she was not familiar. In her submission this significantly contributed to the onset or progress of the manic episode.
49.Dr Allnutt reported that Ms Lawrence’s anticipatory anxiety about returning to work (as noted by Ms Lawrence’s treating general practitioner, Dr Lim, on 29 January 2008) was a “substantial triggering factor” that significantly contributed to the manic episode at that time[32]. At this point it is necessary to observe that in his oral evidence Dr Allnutt conditioned his reported opinion in two ways. Firstly, his adherence to the opinions in his reports was tempered by his acceptance at face value of the information Ms Lawrence provided. There are serious doubts about the accuracy of that information. The Doctor was provided with additional documentary materials, but he did not have the opportunity of interviewing her again, having reviewed those materials. And secondly, he informed us that if we found that Ms Lawrence was symptomatic in October 2007, as we have, then it is less likely that anticipatory anxiety about returning to work was an operative factor.
50.There is no reliable evidence that Ms Lawrence experienced anticipatory anxiety about returning to work prior to October 2007. The clinical notes of Dr Lim from September 2007 contain references to Ms Lawrence’s arrangements in respect of returning to work, but no reference to anxiety or any other mood symptom. That being so, and on Dr Allnutt’s evidence, we are reasonably satisfied that anxiety about returning to work did not contribute to the onset of Ms Lawrence’s mood symptoms in October 2007.
51.But that is not the end of the matter. It is necessary to determine whether Ms Lawrence’s reported anxiety about returning to work contributed to aggravate or accelerate the progress of the manic episode and her claimed injury on 17 March 2008.
52.It appears that Ms Lawrence was initially due to resume her employment on 23 January 2008[33], but this was put forward to 4 February. The reasons for this change are not entirely clear. It appears that Ms Lawrence consulted Dr Lim on 25 January 2008 and the Doctor noted that she was “Stressed out because of lack of sleep”, her eldest child was “toilet training but getting up at night”[34]. If Ms Lawrence was feeling anxious about returning to work on 23 January 2008, one may expect to find reference to this in Dr Lim’s notes on 25 January; but there is no such reference. It is not until 29 January that the Doctor made any note of Ms Lawrence feeling anxious about returning to work – “Feels anxious about back to work – Monday”[35]. This note must be read in the context of other things Dr Lim recorded on that day. It is clear enough that Ms Lawrence was experiencing sleep issues, “Still wide awake at 1.30-2am” and a “Busy time at home”. Furthermore, Ms Lawrence was noted to have symptoms that Dr Lim subsequently reported “were mild symptoms of hypomania in January 2008 (see 29/01/08) when I started her on a low dose of Seroquel”[36]. In this report the Doctor suggested that “returning to work in February 2008” was one of a number of contributory factors to Ms Lawrence’s “relapse”. Precisely what the Doctor meant by suggesting that ‘returning to work’ contributed to Ms Lawrence’s ‘relapse’ is not clear. We simply note that anxiety about returning to work is not expressly identified by Dr Lim as a contributory factor.
53.It appears that Dr Lim certified that Ms Lawrence was unfit for work from 25 January to 5 February 2008 - “S/C 25/01/08-05/02/08”[37]. While the certificate is not in evidence and the Doctor was not called, it may be inferred from the Doctor’s clinical notes that Ms Lawrence’s incapacity was the result of her mood symptoms, including sleep issues and hypomania[38].
54.Dr Lim’s clinical note stands alone as the only contemporaneous medical evidence of Ms Lawrence feeling anxious about returning to work in February 2008. The note is not consistent with Ms Lawrence’s oral evidence that she was enthusiastic about returning to work and that she was looking forward to it. This evidence about her positive attitude is consistent with the absence of any complaint about such anxiety before 29 January 2008, when arrangements must have been made with Ms Lawrence’s employer for her to return to work. There is no reliable evidence that these interactions with her employer were associated with any anxiety. Ms Lawrence’s positive attitude to her work is supported by Dr Lim’s clinical note on 12 February 2008[39], as well as Mr Nothdurft’s unchallenged evidence concerning her attitude to work on resumption[40]. We note that Ms Lawrence’s comment to Dr Lim about feeling anxious about returning to work was made at a time when she was unwell. Dr Allnutt, Dr Rose and Dr Chambers agreed that Ms Lawrence’s mood symptoms may have affected her perceptions about work. We accept this evidence and find that Ms Lawrence’s mood symptoms probably affected her perceptions about returning to work.
55.Weighing the evidence, it is not established, on the balance of probabilities, that feeling anxious about returning to work was a significant contributor to the progress of Ms Lawrence’s mood symptoms and the manic episode in 2008. We are reasonably satisfied that her anxiousness was but a minor feature of her then present mood symptoms. We do not accept Dr Allnutt’s assessment that anxiety about returning to work was a substantial aggravating factor. That opinion stands contrary to the weight of the evidence.
[32] Exhibit A5, p5.
[33] Exhibit R1, p1.
[34] T25a folio 100; Exhibit R4 clinical note 25 January 2008.
[35] T25a folio 101; Exhibit R4 clinical note 29 January 2008.
[36] T25 folio 92.
[37] T25a folio 101; Exhibit R4 clinical note 29 January 2008.
[38] T25 folio 92.
[39] T25a folios 102-103; Exhibit R4 clinical note 12 February 2008.
[40] Exhibit R1, p4 at [27] and Annexure G.
56. As it appears to us the factors that significantly contributed and were acting operatively on the progress of Ms Lawrence’s manic episode prior to her return to work on 11 February 2008 related to sleep deprivation and tiredness or fatigue, of which Ms Lawrence had been complaining for many months and the increasingly autonomous episodic nature of her Disorder. Furthermore, it appears that at or about this time Ms Lawrence’s cousin committed suicide and she attended his funeral on or about 8 February 2008 in the company of Mr Simons[41]. There are many references in the medical records that suggest this tragic event played on Ms Lawrence’s mind to a greater extent than she is presently willing to admit[42]. We are not persuaded by her evidence to the contrary on this point. On the evidence of Dr Lim, Dr Allnutt and Dr Rose, it is probable, and we find, that her cousin’s death significantly contributed to the progress of her Disorder at that time. Considering Mr Nothdurft’s evidence that Ms Lawrence was absent from work “on sick leave (reason unspecified) from 4/2/08 to 8/2/08”[43], it is probable that this explains why she did not attend work until 11 February 2008.
[41] Exhibit A2, p 2.
[42] T25, T25a folios 102-103; Exhibit R4 clinical notes 12 February 2008 and 14 March 2008; Exhibit R13, pp 772, 782, 1109 – 1110 and 1741 for example.
[43] T24 folio 90.
57.The answer to this question is No.
Did stress at work contribute to the manic episode of Bipolar Disorder in 2008?
58.Ms Lawrence says that she experienced stress at work, having resumed work duties on 11 February 2008. The stress, she asserts, related to working in a new and busy area in which she had no previous experience, where she was not provided with adequate training and she was under-utilised. In her submission, these perceptions, whether reasonable or not, relate to circumstances in her employment at the time that are established by evidence. She says that she became frustrated and anxious about her ability to contribute to the work of the section, as well as the demands she was making on colleagues. These stresses, in her submission, contributed to the manic episode to a significant degree.
59.The relevant facts follow. On 11 February 2008 Ms Lawrence resumed work in the Remuneration, Entitlements and Conditions Section of DFAT. On 12 February 2008 she made an application to work on a part-time (4 days per week – Monday to Thursday) basis. This was approved. Ms Lawrence’s part-time work arrangement permitted her to work 4 days per week, Monday to Thursday[44]. She did not undertake shift work. On returning to work, she spent the first week undertaking orientation activities under Mr Nothdurft’s supervision[45]. She attended work in the week commencing 18 February 2008 and commenced a Department of Education, Employment and Workplace Relations Personnel Operations Program on 19 February[46]. It appears that Ms Lawrence was scheduled to undertake the training program 2 days each week for 4 weeks in the period from 19 February to 12 March 2008[47]. On Mr Nothdurft’s evidence, Ms Lawrence attended only part of the second day of the training program, as her young child was unwell[48]. Ms Lawrence’s leave records reveal that she was absent on Personal/Carer’s Leave from 25 February to 5 March 2008. It appears that she returned to work on Thursday, 6 March 2008, and attended work from 10 to 13 March inclusive[49]; but she did not attend the training program on these days. Ms Lawrence did not attend work on 17 March 2008 and she did not return until 22 September 2008.
[44] Exhibit R1, Annexure D.
[45] T24 folio 91.
[46] Exhibit R2; T24 folio 90 refers.
[47] Exhibit R1, [10], [21] and [23] .
[48] Exhibit R1, [10].
[49] Exhibit R1, Annexure A.
60.Thus it can be seen that Ms Lawrence attended work for a total of 13 days before she was medically certified as unfit for work on 17 March. We note that she attended work for only 5 days after 20 February 2008, when she left the training program. These are uncontroversial facts. Contrary to Ms Lawrence’s repeated assertions that she was not provided with adequate training because the work area was under-staffed[50], she did not undertake the training because she was absent on personal leave caring for her sick child. There is no reliable probative evidence that Ms Lawrence was not provided with adequate training and support when she attended work on 6, 10, 11, 12 and 13 March 2008.
[50] See Exhibit A1 at [13], T22 folio 88 and T27 folio 121, for example; T4b folio 29 refers.
61.On the uncontroverted evidence of Dr Rose, Dr Allnutt and Dr Chambers, Ms Lawrence’s hypomania was likely to have affected her behaviour and her perceptions on returning to work on 11 February 2008. On the evidence of Mr Nothdurft[51], Dr Allnutt, Dr Rose and Dr Chambers, with the value of hindsight, it is probable that Ms Lawrence’s reported behaviours and perceptions at work in the weeks following her return on 11 February 2008 were affected by her already present mood symptoms. Her ‘over bubbly’ presentation and her enthusiastic ideas concerning changes in procedure were consistent with increasing mood symptoms and her existing mild hypomania, being expressions of symptomatic grandiosity. We note that grandiosity is one of the features of hypomania. Making this assessment we note that Ms Lawrence was reported to have said that she became conscious of over-stepping boundaries and experiencing grandiose beliefs about work, “I felt them creeping in”[52]. The medical records of her admission to the Calvary Hospital on 31 March 2008 indicate that she was aware of having grandiose beliefs about work from commencement in February 2008[53].
[51] Exhibit R1, p4 at [27] and Annexure G.
[52] Oral evidence.
[53] Exhibit R13, pp1109-1110.
62.Having regard to her attendance records and the evidence of Mr Nothdurft[54], we find that her perceptions of being under-utilised at work are not supported by any objective evidence, and they were symptomatic manifestations of her Disorder. We accept Mr Nothdurft’s evidence that she was not placed under and did not complain about stress at work[55]. When examined about these matters, Ms Lawrence maintained that she was stressed at work and did not become conscious of this until later. It is perhaps for this reason that the subsequent contemporaneous medical notes do not refer to the stresses that Ms Lawrence presently contends significantly contributed to the manic episode of her Disorder.
[54] T24 folio 91.
[55] T8 folio 68; T24 folio 91.
63.We are reasonably satisfied that Ms Lawrence’s employment in February and March 2008, noting the short periods in which she attended work, were simply one context in which her advancing illness was exposed – her employment did not give rise to her perceptions of work stress, those perceptions were the product of her already existing illness. Her assertions concerning inadequate training as a causal contributor to her illness are not consistent with the objective evidence and they are not made out.
64.With regard to her apparent deterioration in her mental health on the weekend of 8 and 9 March, when Dr Lim noted that she ‘hit a wall’[56], and subsequently, as is revealed in the medical notes on 13, 14, 16 and 17 March 2008[57], we are not persuaded that these elevations in symptomatology were contributed to by Ms Lawrence’s employment in any significant degree. As we have said, there is no evidence other than Ms Lawrence’s own retrospective account that she was not able to cope with work at that time. As the medical records from 13 March so aptly demonstrate, Ms Lawrence maintained that the operative cause of her difficulty was not her work, it was her difficulty sleeping and her increasing concern about symptoms she recognised as early warning signs of a relapse into mania, as well as her anxiety about that prospect and the effect that it may have on her family. For reasons of clarity it is desirable to consider these and subsequent records in some detail.
[56] T25a folios 103-104; Exhibit R4 clinical note 14 March 2008.
[57] Exhibit R13, pp1079-1080, 1083, 1084, 1086, 1109-1110.
65.At 1.57am on Thursday 13 March 2008 Ms Lawrence telephoned the Canberra Hospital “concerned that she may be getting unwell again”[58]; the notes record that Ms Lawrence explained that “since returning to work her 2 children have been unwell with viral infections etc and she has had to take a lot of sick leave to care for them. Amanda said that this period has been very exhausting and she feels run down having noticed that she is developing a sty and conjunctivitis” and “Tonight despite feeling tired and taking 50mg Seroquel she is not able to sleep. Amanda described her thoughts as racing but in no way grandiose. She is mainly just worried. Amanda sounded rational and there was no evidence of pressured speech etc. She has made an appointment to see her GP Dr Lim on Friday and at this stage is still hoping to go to work in the am”. Ms Lawrence attended work later that morning. The Canberra Hospital records reveal that a follow-up telephone call was made to Ms Lawrence and she “suggested she is feeling better today and indicating she no longer felt she required CATT intervention at this time… sounded calm will [sic] nil evidence of distress”[59]. If Ms Lawrence was experiencing stress at work at this time or over previous days, one would expect to find some reference to it in these records and, perhaps, some level of concern about attending a stressful work situation; but there is none.
[58] Exhibit R13, p1079.
[59] Exhibit R13, p1080.
66.Later on that day at 10.26pm, however, Ms Lawrence again telephoned the Canberra Hospital CAT Team “Very concerned about having another manic episode”[60]. The notes record “Strongly believes that poor sleep triggered her major manic episode and concerned that she is not sleeping currently” and the stressors Ms Lawrence described: “she has just returned to work after mat leave”, “her three year old is waking her at 2am every night” and “she has just attended a family funeral in Sydney for a cousin who suicided”. Notably, this reference is not to work stress as Ms Lawrence now describes it, but to her return to work. One can readily accept that Ms Lawrence may have experienced some increased stress in the particular circumstances, coping with the demands of family life and work while experiencing difficulty sleeping and apparently increasing mood symptoms. But it does not follow that her employment was an operative factor, causing the increased stress or significantly contributing to the progress of her manic episode or her Disorder. On balance, we are reasonably satisfied that it was not.
[60] Exhibit R13, p1080.
67.On Friday 14 March 2008 Ms Lawrence consulted Dr Lim. The Doctor’s clinical note supports our conclusion:
“Took full Seroquel per day. Hit a wall on weekend. Head busy called CAT (Crisis Assessment team).2 night. See EAP x 1 (for 1 hour) x weekly (grief counselling)
Took Seroquel 2 evening
Sleep started going rough.
Stressors: [Cousin’s] death (suicide)
-rubbish with banks
-business to be set up with Ricky
-[son] waking
At work-full of advice for everybody
-conscious starting to overstep boundaries
-aware writing more, song association again
Speech okay
…
Reassured still early days, still has good control of recognising her self talk and not acting on association
Diagnosis: Early relapse of Mania.”[61]
[61] T25a folios 103-104; Exhibit R4 clinical note 14 March 2008.
68.It should be noted that when Ms Lawrence ‘hit a wall’ on 8 or 9 March 2008, she had attended work for only 1 day (Thursday 6 March 2008) over the preceding 2 weeks. There is no evidence that anything stressful or untoward occurred at work on that day that may have contributed to any deterioration in her mood symptoms on the following weekend or over successive days. On the Canberra Hospital CAT Team notes to which we have referred it is clear that Ms Lawrence was very concerned about the deteriorating state of her mental health and ongoing issues in respect of sleep. Those records do not reveal any issue being raised by Ms Lawrence in respect of stress at work, or any particular incident or occurrence or concern in relation to her employment on 6 March or from 10 to 13 March.
69.On 17 March 2008, Ms Lawrence was assessed by Dr Chambers, a psychiatric registrar. Dr Chambers recorded that Ms Lawrence “feels she is starting elevate” and noted the following:
“HPC [History of Presenting Complaint]
Amanda has had some difficulties in sleeping over recent months. In late January she saw her GP for help and has been taking low dose quetia[ine [sic] since then. EMW [early morning wakening] was her main Sx [symptom] at this time. She has noticed an elevation in her mood for some weeks, and multiple stressors have made her anxious about a recurrence of mania, as experienced in 2002.
She recalls details of her previous mania with psychotic features in detail, and has become increasingly aware of the return of the feeling of elevated mood, and noticing significant songs on the radio, signs, etc.”[62]
[62] Exhibit R13, p1086.
70.On 31 March 2008 Ms Lawrence attended the Emergency Department of the Canberra Hospital, requesting a medical review. The medical notes record the following history:
“She reports a deterioration in her mental state since around January 2008 when she reports suffering a “busy head”, feeling anxious and struggling with anxiety. At that time she was commenced on 25mg Seroquel by her GP. Amanda was due to return to work following her maternity leave when she received word that her cousin had committed suicide. She states that this was the icing on the cake for her and she has struggled to be able to cope since then.
Amanda did return to work in February and recalls expressing grandiose beliefs at the time that she could overhaul the work situation and reorganise the department. A further stressor is that her husband is currently starting up a new business.”[63]
[63] Exhibit R13, pp1109-1110.
71.Ms Lawrence was hospitalised on 1 April 2008 under the care of Dr Ratnayake[64] and after various transfers between the Calvary and Canberra Hospitals she was discharged on 15 July 2008[65]. She was subject to consecutive Psychiatric Treatment Orders on 6 May 2008, 11 June 2008, 4 December and 28 May 2009[66].
[64] T25b folio 108; T27 refers.
[65] T25b, T25c and T25d refer.
[66] Exhibit R13, pp 460-461, 468, 474 and 478.
72.Weighing the evidence, we are reasonably satisfied that work stresses did not contribute to or aggravate the manic episode of Ms Lawrence’s Disorder in 2008. The primary causal factor of significance was sleep-deprivation that resulted from family circumstances, outside the frame of employment. Other factors that are likely to have contributed in some degree are the sudden death of her cousin immediately prior to returning to work and the autonomous nature of her Disorder. Ms Lawrence’s assertions about being not being provided with adequate training as a result of staff shortages are not made out. Her perceptions of being under-utilised and frustrated at work were closely related to and affected by the ongoing symptomatology of her Disorder. We note that she made similar complaints in respect of the episode in 2002[67]. Those perceptions appear to have followed the facts and, as here, they have a retrospective quality. We are reasonably satisfied that they were symptoms or products of Ms Lawrence’s illness that did not, themselves, add or contribute to its progress – “a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity”[68]. Furthermore, even if we are wrong on this point and those perceptions and work stresses did contribute to the progress of the manic episode, the evidence, on balance, does not establish that any such contribution was to a significant degree. We so find.
[67] Exhibit R13, p 1031.
[68] Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173, per Sweeney and Woodward JJ at 195.
73.The answer to this question is No.
Did Ms Lawrence’s employment contribute to the depressive episode in 2008 to a significant degree?
74.It is not in dispute that Ms Lawrence suffered a depressive episode of her Disorder in October 2008 in relation to which she was rendered unfit for work and was admitted to hospital on 24 October 2008 – the claimed date on injury. The controversy concerns the employment contribution to this episode.
75.The contextual facts are as follows. On 16 July 2008 Ms Lawrence was assessed by Dr Chambers. The Doctor’s oral evidence concerning this assessment is that Ms Lawrence was not fully well; she had a resolving prolonged manic episode. Dr Chambers reviewed Ms Lawrence again on 6 August 2008 and 3 September 2008; her oral evidence is that Ms Lawrence had “pretty well recovered” by this time. It appears that a plan was made to return Ms Lawrence to work for 2 days per week on 5 September 2008[69]. This did not occur – Ms Lawrence’s leave records reveal that she was absent on Personal/Carer’s Leave until 19 September 2008. The parties agree that she resumed work on Monday, 22 September 2008, working 2 days per week in the Remuneration, Entitlements and Condition Section Overseas Conditions Unit. She was hospitalised on 24 October 2008. On 3 December 2008 Ms Lawrence was discharged from hospital and returned home. She remained unwell and did not return to work. She was retired on invalidity grounds on 9 December 2009.
[69] Exhibit A3, Report 12 October 2010, p3 and letter dated 29 August 2008.
76.Ms Lawrence says that her return to work on 22 September 2008 was premature; the episode of ill-health in March 2008 had not entirely resolved and she was in a very fragile state. Even though she accepts that her return to work was carefully managed, she asserts that her employment caused or significantly contributed to the onset or progress of the depressive episode.
77.As with the preceding manic episode, Ms Lawrence says that a number of employment factors establish her claim: an accumulation or pattern of employment stressors contributed to the depressive episode in 2008; earlier work-related episodes increased her susceptibility and vulnerability to suffer further episodes more frequently or more intensely, thereby contributing to the depressive episode; she was anxious about returning to work and the possibility that it would trigger a further episode; and her return to work on 22 September 2008 was premature – she could not cope with her work duties. In her submission, these factors were significant in causing the onset or increasing the severity of the depressive episode that caused her to be hospitalised on 24 October 2008.
78.It is not necessary to deal again with her submissions concerning the causal tests to be applied.
Did employment stressors accumulate over time or form a pattern that significantly contributed to the depressive episode in 2008?
79.We do not need to repeat what we have said in relation to Ms Lawrence’s submissions concerning the on-going effects of the 2002 episode and the accumulation or patterning of stressors relating to her employment, although those observations and conclusions apply relevantly in respect of the depressive episode she experienced in 2008. We note, too, that Dr Allnutt did not extend his comments or conclusions on this point to this depressive episode.
80.Weighing the evidence, we find no compelling evidence that the depressive episode in 2008 was contributed to by an accumulation of employment stressors or a pattern of such stressors over time to any degree, let alone to a significant degree. As will appear, the depressive episode was apparent in mood symptoms Ms Lawrence experienced immediately following her discharge from hospital on 15 July 2008.
81.That being so, the answer to this question is No.
Did previous work-related episodes of Bipolar Disorder have a kindling effect that contributed to the depressive episode in 2008 to a significant degree?
82.As with the manic episode, Ms Lawrence asserts that the previous work-related episodes increased her vulnerability to suffer further episodes of Bipolar Disorder, thereby contributing to the depressive episode she suffered in 2008.
83.The ‘kindling effect’ exists as a possibility, as we have said, but this theory does not rise to the level of a probability that is supported by evidence. For the reasons already given, we are satisfied that the 2002 episode did not contribute to the 2008 episodes.
84.Furthermore, in respect of a causal nexus between the depressive episode and the manic episode that preceded it, the medical evidence all goes one way – there is a high risk that a depressive episode or ‘phase’ of Bipolar Disorder may follow a manic episode. This is characteristic of the episodic nature of Bipolar Disorder. There is clear evidence of this cyclic sequence occurring in Ms Lawrence’s case in 2002. We have found that the episodes of the Disorder she experienced in 2002 (and possibly 2001) were probably biphasic. In all likelihood, the same can be said in respect of the episodes she experienced in 2008. It can be accepted, therefore, that in 2008 Ms Lawrence’s manic episode increased her vulnerability to suffer a depressive episode and significantly contributed to it. But the manic episode in 2008 was not work-caused.
85.The answer to this question is No.
Did anxiety about returning to work contribute to the depressive episode in 2008 to a significant degree?
86.Ms Lawrence asserts that she experienced anticipatory anxiety about returning to work on 22 September 2008 and that this contributed to the onset or progress of the depressive episode. In her submission, her employment significantly contributed to the depressive episode in this way.
87.As we have said, we are reasonably satisfied that the depressive episode or phase of Ms Lawrence’s illness arose out of the manic episode or phase that preceded it; in effect these episodes were biphasic.
88.The contemporaneous medical records clearly establish that, at the time Ms Lawrence returned to work on 22 September 2008, she was recovering from the manic episode that caused her to be hospitalised for 4 months. On the evidence of Dr Lark[70], Dr Barker[71], Dr Ratnayake[72], Dr Chambers[73] and CAT Team members[74], we are reasonably satisfied that she experienced mood symptoms consistent with the depressive phase of the Disorder from July 2008[75]. On 3 September 2008, Dr Chambers noted that Ms Lawrence was “a little anxious about the idea of going back to work”[76]. She repeated this to Dr Lark[77]. To our mind, this is not consistent with a stressor that significantly contributed to Ms Lawrence’s depressive mood symptoms. There is scant other evidence that Ms Lawrence experienced any anxiety about returning to work in September 2008. There is also very little reliable evidence that Ms Lawrence’s anxious feelings about returning to work contributed to her depressive episode.
[70] T6b folio 56.
[71] Exhibit R13, p1232.
[72] Exhibit R13, p1234.
[73] Exhibit R13, p1228.
[74] See Exhibit R13, p1231, for example.
[75] See Exhibit R13, pp1225-1226, 1230-1232, for example.
[76] Exhibit R13, p1228.
[77] T6b folio 56.
89.The present evidence, including the evidence of Dr Chambers, Dr Lark, Dr Allnutt, Dr Rose, Dr George, Ms Clark, Dr Barker, Dr Ratnayake and several contemporaneous medical notes, does not establish, on the balance of probabilities, that Ms Lawrence experienced any significant anxiety about returning to work in September 2008 or that, if she did, that it contributed to a significant degree to her mood symptoms or to the progress of her Disorder. For these reasons we are satisfied that anticipatory anxiety about returning to work in September 2008 did not contribute to or aggravate the progress of Ms Lawrence’s depressive episode; if there was any contribution, the present evidence does not establish that the contribution was to a significant degree.
90.The answer to this question is No.
Did work stress contribute to the depressive episode of Bipolar Disorder in 2008?
91.Ms Lawrence says that returning to work in September 2008 was premature; she was unwell and the stress she endured as a result caused or exacerbated the depressive episode of her Disorder, resulting in her hospitalisation on 24 October 2008. She says that she returned to work in a new area with which she was not familiar. She could not cope. She became overwhelmed. Her mood deteriorated. In her submission these work stresses significantly contributed to the depressive episode.
92.As we have said, Ms Lawrence was already unwell and experiencing depressive mood symptoms when she resumed work on 22 September 2008. It is likely, and we find, that her perceptions were affected by these symptoms. It is also possible that her perceptions were affected by her pharmacological medications, about which she expressed concern to Dr Chambers and Dr Barker[78]. It appears probable, and we accept, that Ms Lawrence experienced difficulty undertaking her duties. We note that in February 2009 she informed Dr George that “her attention, concentration and memory tends to be quite variable”[79]. Weighing the evidence, we are reasonably satisfied that Ms Lawrence’s difficulties coping at work were, in all likelihood, the result of symptoms of her existing depressive episode and juggling her family responsibilities. It is also possible that her pharmacological medications contributed to these difficulties, although we make no conclusive findings on this point.
[78] See Exhibit R13 pp 1229 and 1232, for example.
[79] T6c folio 60.
93. The proposition that work stresses contributed to or aggravated the progress of the depressive episode is not established on the balance of the evidence. There is no reliable evidence that Ms Lawrence’s mood symptoms increased in the period from 22 September to on or about 23 October 2008, when Mr Simons telephoned the Canberra Hospital concerned about her mental health[80]. We are reasonably satisfied that Ms Lawrence’s symptoms increased on or about 23 October 2008. But the reasons for the increase are not easy to determine on the present evidence. It is possible that her employment was an operative factor – her difficulties coping at work may have acted upon her perception that she was a burden at work, or may have increased her stress and contributed to the increase in her depressive symptoms as she contends. It is possible that simply attending work and being exposed to work routines, duties and inter-personal relationships may have contributed in some way to increase her stress and her depressive mood symptoms in October 2008. But, on balance, the present evidence does not lead us to this conclusion – the contemporaneous medical records simply reveal that Ms Lawrence retrospectively identified work as a possible stressor in the absence of any other when she was examined by Dr Barker and Dr Ratnayake on 24 and 28 October 2008 respectively. There are serious questions concerning the reliability of her account, both in terms of her then present ill-health, the onset of depressive mood symptoms in July 2008 and her apparent admission to Dr Ratnayake that she had been less than truthful about her symptoms to Dr Chambers[81].
[80] Exhibit R13, p1230; pp 1232 and 1234 refer.
[81] Exhibit R13, p1234.
94.Other possible contributory causes of significance arise on the present evidence. It is possible that the increase in her symptoms in October 2008 resulted from her difficulty sleeping or not taking her Epilim medication[82], as occurred in the past[83]. This is consistent with the contemporaneous medical records. It is also possible that the increase in her depressive symptoms at this time was simply a product of the natural progress of the depressive episode, where the successive manic and depressive phases of her Disorder followed a substantially autonomous course in which stressors played little or no part. This is consistent with the evidence of Dr Rose and the New Oxford Textbook of Psychiatry concerning the increasingly autonomous progress of Bipolar Disorder over time.
[82] Exhibit R13, p1229.
[83] T25f folio 117.
95.Our role is not one of choosing between possibilities. The existence of a causal contribution by Ms Lawrence’s employment to her depressive episode is to be determined as a matter of probability, applying the reasonable satisfaction civil standard. Mere possibility is not sufficient, even if the possibility is real rather than fanciful - the balance of probabilities test does not authorise us to choose between guesses, on the ground that one guess seems more likely than another[84]. As reasonable satisfaction should not result from indefinite evidence or indirect inferences[85], on this point we can go no further. The possibility that Ms Lawrence’s employment contributed to her depressive mood symptoms or to the progress of the depressive episode of her Disorder in 2008 is not established, on the balance of probabilities, by the present evidence.
[84] Jones v Dunkel (1959) 101 CLR 298 at 305.
[85] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.
96.Furthermore, as we have said, the nature of the determination to be made informs the correct course if the evidence, properly considered, leaves us in a state of uncertainty. Presently, on this point, the evidence does not establish to the reasonable satisfaction standard that work stress contributed to the depressive episode, although that possibility remains open. In those circumstances, the causal link for which Ms Lawrence contends is not made out.
97.Even if we are wrong in this conclusion, or had found differently, it would not assist Ms Lawrence’s case. For her to succeed on this point, it must be established by evidence that her employment contributed to her depressive illness to a significant degree – a degree that is substantially more than material. And that is not established on the evidence before us.
98.The answer to this question, therefore, is No.
Conclusion
99.In conclusion, weighing the relevant (and voluminous) evidence, we find that Ms Lawrence’s manic episode began with the onset of symptoms in October 2007. This was not significantly contributed to by employment factors. Ms Lawrence’s submissions concerning the on-going or contributory effects of the 2002 work-related episode are not made out. It is not established that anticipatory anxiety about returning to work or work stresses were of any significance in the progress of her manic or depressive mood symptoms.
100.On balance, the evidence does not establish that any event, circumstance or feature of her employment acted on her perceptions or her health with any contributory effect to the progress of her mood symptoms or the manic and depressive episodes of her Disorder in 2008. We are reasonably satisfied that Ms Lawrence’s employment was a benign context in which her advancing illness was manifest – her employment did not give rise to her perceptions of work stress, those perceptions were the product of her already existing illness. In our assessment of the evidence and all of the contributing factors, even if we were to accept or had found that one or more factors in Ms Lawrence’s employment contributed to or aggravated the manic or depressive episodes of her Disorder in 2008, and we make no such finding, the evidence does not establish that any of the factors to which our attention has been taken contributed to a significant degree. The present evidence does not establish that her employment made a material contribution to the episodes, let alone a contribution that is substantially greater than material.
101.The factors that significantly contributed to and were acting operatively on the episodes of Ms Lawrence’s Disorder related to sleep deprivation and tiredness or fatigue, of which Ms Lawrence had been complaining for many months, the biphasic nature of the manic and depressive episodes she experienced in 2008 and the increasingly autonomous nature of her Disorder. The sudden death of Ms Lawrence’s cousin was also a significant contributory factor.
102.It follows that Ms Lawrence’s manic and depressive episodes of Bipolar Disorder were not contributed to, to a significant degree, by her employment. Those aspects of her Disorder are not within the meaning of a ‘disease’ and they do not constitute one or more injuries for the purposes of the Act.
103.It follows that the decision under review must be affirmed.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb and Dr B. Hughson, Members
Signed: .......................[sgd].........................................................
H. Choi, AssociateDates of Hearing 5 and 6 September 2011
Date of Decision 26 October 2011
Counsel for the Applicant Mr A. Anforth
Solicitor for the Applicant Mr W. Hawkins, Maurice Blackburn Lawyers
Counsel for the Respondent Ms S. Callan
Solicitor for the Respondent Ms A. Danti, Dibbs Barker
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