LYHH and Comcare (Compensation)
[2017] AATA 1586
•28 September 2017
LYHH and Comcare (Compensation) [2017] AATA 1586 (28 September 2017)
Division:GENERAL DIVISION
File Number: 2015/1739
Re:LYHH
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Dr C Kendall
Date:28 September 2017
Place:Perth
The decision under review is affirmed.
....................[sgd]..............................
Deputy President Dr C Kendall
CATCHWORDS
COMPENSATION – aggravation of applicant’s Major Depressive Disorder – whether applicant continues to suffer an aggravation compensable by respondent – material contribution – novus actus interveniens – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss – 4(1), 14 and 19
CASES
Cheung v Administrative Appeals Tribunal (2009) FCA 241
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power [2015] FCA 1502
Comcare v Sahu-Khan (2007) 156 FCR 536
Re de Leon and Comcare (Compensation) [2017] AATA 563
Re Prain and Comcare (Compensation) [2016] AATA 459
Telstra Corporation Limited v Hannaford [2006] FCAFC 87SECONDARY MATERIALS
Second Reading Speech, Commonwealth Employees’ Rehabilitation and Compensation Bill 1988, Australia, House of Representatives Debates, 27 April 1988
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
28 September 2017
INTRODUCTION
Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of parties to proceedings and allocate a pseudonym to the parties if the Tribunal deems it appropriate to do so.
This matter raised psychiatric issues that were traumatic and deeply distressing for the Applicant. The Tribunal determined that it was appropriate to restrict the identification of the Applicant. Accordingly, the Applicant in these proceedings will be referred to by the pseudonym “LYHH”.
FACTUAL BACKGROUND
LYHH is 53 years old and, at all material times, was employed with the Australian Taxation Office (the “ATO”).
On or around 13 April 2004, LYHH attended on her GP, Dr Lokuratna, and informed him that she had been questioned at work about a private conversation for about one and half hours which had led to “severe stress and anxioity [sic]., a background ongoing history of bulling [sic] and harassement [sic] over period of more than 10 years”.
LYHH was subsequently issued with a Worker’s Compensation First Medical Certificate which certified her as unfit for work until 4 May 2004 (T3 at 5).
On or around 27 May 2004, LYHH lodged a claim for compensation in which she stated she was “very distressed, fearful + anxious about the whole scenario. Low self-esteem, depressed + hopeless major depression with psychological distress”. She attributed these feelings to her being “interrogated and belittled for an hour” by the ‘Operational Director’ during her employment with the ATO (T8 at 15).
On 1 September 2004, Comcare accepted liability for “aggravation of major depressive disorder, single episode” with an injury date of 13 April 2004 (the “compensable condition”) (T20 at 53–61).
On 5 January 2015, almost 11 years after accepting liability, Comcare made a determination ceasing liability for compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”) because it was determined that the compensable condition had resolved (T343 at 754–756).
On 16 January 2015, LYHH requested a re-consideration of the determination (T346 at 761–774).
On 24 March 2015, upon reconsideration, Comcare varied, in part, the determination, under which it accepted liability for LYHH’s ongoing medical treatment but affirmed its determination denying liability for compensation under s 19 of the SRC Act for incapacity for work (the “reviewable decision”) (T350 at 781–784).
On or around 15 April 2015, LYHH lodged an application for review with the Tribunal alleging, essentially, that the reviewable decision in relation to her section 19 entitlements was wrong (T1 at 1–31).
RELEVANT LEGISLATION
This matter is to be determined according to the SRC Act as it was in April 2004 (the “SRC Act 1988”) being the accepted date of LYHH’s injury.
Section 14 of the SRC Act 1988 provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 19 of the SRC Act 1988 provides for compensation for injuries suffered resulting in incapacity for work.
By virtue of s 4(9) of the SRC Act 1988 “incapacity for work” means an incapacity for work suffered by an employee as a result of an injury, being:
·an incapacity to engage in any work; or
·an incapacity to engage in work at the same level the employee was engaged in immediately before the injury happened.
The necessary connection between a condition suffered by an employee and the employment is provided for, indirectly, by the definitions of “injury” and “disease” in the SRC Act 1988. Relevantly, s 4(1) of the SRC Act 1988 defines the terms “injury” as follows:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
…
The term “disease” is also defined in s 4(1) of the SRC Act 1988 as follows:
"disease " means:
(a) any ailment suffered by an employee; or
(b)the aggravation of such an ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
The term “ailment” is defined in ss 4(1) of the SRC Act 1988 to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” As it relates to the SRC Act, ailment was interpreted in the case Comcare v Mooi (1996) 69 FCR 439 at 443-444 (Mooi) to mean, “a condition that is outside the boundaries of normal mental functioning and behaviour”.
Subsection 4(1) of the SRC Act 1988 also provides that the term “aggravation” includes “acceleration or recurrence.”
ISSUE
Broadly, the Tribunal must determine whether LYHH is still eligible for compensation under s 19 of the SRC Act as at the date Comcare ceased liability payments to her – 5 January 2015.
Comcare contends that LYHH’s current psychiatric condition is not the same as the original compensable condition, caused by the compensable condition or a result of her employment with the ATO.
In order to determine this issue as it relates to LYHH, the Tribunal must first determine whether LYHH’s current psychiatric condition is “materially contributed to” by her employment with the ATO. Accordingly, the Tribunal must address the following questions:
(a)Does LYHH continue to suffer from an “injury” within the meaning of s 4(1) of the SRC Act 1988; and
(b)If LYHH does continue to suffer an “injury” within the meaning of the SRC Act 1988, has that injury resulted in “incapacity” such that she is entitled to compensation pursuant to s 19 of the Act?
The medical evidence relevant to this matter spans approximately 13 years. In determining whether LYHH suffers from an injury as defined in the SRC Act 1988, the Tribunal will review her entire medical history. In these circumstances, the Tribunal may well find that whatever condition LYHH now suffers from (however serious it may be) is no longer a compensable injury because it cannot be said that her employment with ATO materially contributed to her current condition. The Tribunal may also, of course, determine (although it does not do so here based on the evidence before it) that LYHH’s employment never contributed to her original compensable condition (as per Telstra Corporation Limited v Hannaford [2006] FCAFC 87 (Hannaford); (2006) 90 ALD 263 and Cheung v Administrative Appeals Tribunal (2009) FCA 241).
For the reasons that follow, the Tribunal finds that LYHH’s current psychiatric condition is no longer materially contributed to by her previous employment with the ATO and the events of 2004. The evidence shows a great many traumatic events following the ATO events of 2004 that interrupt any causal link between the original workplace incidents and her current and ongoing psychiatric issues. These subsequent stressors are of sufficient magnitude to account for her ongoing psychiatric issues. Comcare is thus not liable under s 19 of the Act for any ongoing compensation.
Having so found, the Tribunal has not addressed (nor is it required to do so) any issues relevant to whether LYHH’s current psychiatric condition results in an ongoing impairment or any incapacity to work.
EVIDENCE
This matter was heard over three days in Perth on 10 and 11 November 2016 and 26 May 2017. LYHH was represented by counsel, Mr Bruns. Comcare was represented by counsel, Mr Wallace. The Tribunal thanks both counsel and their instructors for their invaluable assistance with what proved to be an enormous amount of medical evidence covering many years and a jurisprudential area that is perhaps best described as “complex”.
The Tribunal was provided with a significant amount of medical material spanning approximately 13 years. This material comprised:
·LYHH’s witness statement, dated 24 June 2016 (Exhibit A1);
·LYHH’s supplementary witness statement, dated 13 October 2013 (Exhibit A2);
·medical report of Dr Ng, dated 11 August 2016 (Exhibit A3);
·medical certificate of Dr Jane Fitch, dated 17 November 2016 (Exhibit A4);
·a 784 page set of T-documents (T1 to T350) (Exhibit R1);
·an email from LYHH to Dr Jane Fitch, dated 8 June 2015 (Exhibit R2);
·medical report of Dr Gemma Edwards-Smith, dated 11 February 2016 (Exhibit R3)
·a list of previous workers' compensation claims for LYHH (Exhibit R4);
·medical report of Dr Jane Fitch, dated 25 May 2017 (Exhibit R5); and
·a letter from Dr Jane Fitch dated 19 January 2015 to Charlotte Bowyer (Exhibit R6).
The Tribunal also received a Statement of Facts, Issues and Contentions on behalf of LYHH dated 19 August 2016 and a Statement of Facts, Issues and Contentions from Comcare dated 10 October 2016.
Following the hearing of this matter, extensive Written Closing Submissions were received from counsel for LYHH, dated 9 June 2017. Written Submissions in Reply, dated 19 June 2017, were then received from counsel for Comcare. Written Responsive Submissions were then received from counsel for LYHH on 27 June 2017 (dated 27 June 2017).
The Tribunal has reviewed all of the above and highlights the following relevant materials below.
LYHH’s witness statement dated 24 June 2016 (Exhibit A1)
The Tribunal notes the following paragraphs from LYHH’s witness statement:
…
Prior Injuries and Medical Conditions
4.My treating doctors and the medical practitioners involved in this matter know that I was molested as a child, and know that this is not an issue that affects my mental health and my ability to work.
5. I do not have a history of mental health problems.
6.Aside from the matters the subject of this claim, I have not had any mental health problems in the past that have prevented me from working.
7.I worked in the Child Support division of the ATO for a while, but all of my training was in Tax Technical work, and I didn’t want to work in the Child Support division long term.
8.Unfortunately, the Child Support Agency had staffing difficulties as many people left due to the stress in that area, so they didn’t want to let me go.
9.The only way to get a transfer was by way of promotion, or on medical grounds.
10.I was successful in obtaining a position in a new audit section, but it wasn’t a promotion, so I saw a counsellor in relation to a medical release.
11.The counsellor that I saw understood that I was simply seeing them to get a transfer to another division.
12.The counsellor knew that I wasn’t suffering from any mental health issues as a result of my time in the Child Support division.
13.I have had two workers’ compensation claims before – for a whiplash injury as a result of a car accident on a work trip, and the second when I injured myself falling down stairs.
Employment
14. I started working for the ATO on 20 August 1990 when I was 26.
15.The problems I had there started immediately when I was given a training video which turned out to be a pornographic video, and the lunch room had posters of naked women.
16.There were various other incidences of inappropriate behaviour which made me uncomfortable.
17. I was told that if you complain then you are not a team player.
18.However, I was good at my job and I was given more responsibility and higher duties quickly.
19.I was also successful in gaining a position on the Tax Officer Development Program and did a rotation in audit, which was a bit of a men’s club – very few women worked in that area.
20. The men made lots of inappropriate and sexual comments toward me.
21.I was sexually assaulted on a couple of occasions, including in a lift by one of my managers.
22.In another area, there was a man who constantly asked me to go out with him and reacted violently when I refused – which led to him leaving the ATO.
23.That man became enraged on the day of our team Christmas function which was unexpected because it happened after several months of me rejecting his advances.
24.I had trouble dealing with the harassment and inappropriate behaviour for many years.
25.In order to deal with what went on at work, I took leave without pay for a while, and worked elsewhere for a time.
26. I also took my long service leave and study leave when I could.
27. This was my way of getting out of the office, and away from the problems.
28. In April 2004, things got too much at work and I could no longer cope.
29.A girl at work confided in me about a bullying matter and I had sent her a supportive email explaining I'd find her a suitable Harassment Contact Officer to assist her, as I was not taking any new cases.
30.I was then taken into a meeting with my area manager, [Mr B], where he demanded I tell him all about the bullying matter.
31.[Mr B] was angry, intimidating and stood over me in the meeting. He demanded I disclose all the confidential information I had about the matter.
32.After considerable patience and effort, I was able to change the tone of the conversation and it became more civil even though I refused to disclose any confidential information.
33.We finished the meeting after about an hour and a half, and I went back to my desk emotionally and psychologically exhausted.
34.Everything that happened sunk in and I felt overwhelmed and just started crying.
35.I went home from work, and at the time, didn’t know that I wouldn’t be able to go back.
36.I saw a local general practitioner and when I attempted to tell her what had happened, I burst into tears and was unable to stop.
37. She referred me for psychological counselling.
38.I was also referred to Dr Jane Fitch to assess my need for medication and further psychiatric treatment.
39.I began seeing Dr Fitch and commenced taking anti-depressant medication.
40. I also saw a psychologist called Kamalesh in Como for a short while.
41.But I was so dysfunctional that I was unable to drive and maintain appointment times.
42.I was also very mistrusting of strange men and so Dr Fitch became my only medical assistance.
43. I made several attempts to resume work at a Centrelink office.
44. Each attempt was unsuccessful as I suffered excruciating anxiety.
45.On each and every occasion this led to me vomiting and suffering faecal incontinence on the way to the office.
46.After several attempts, Dr Fitch put a stop to it by issuing an unfit for work medical certificate.
47. No further attempts at getting me to work were ever undertaken.
48.I had always hoped to get back to some kind of work, and I was disappointed in 2010 after the medical retirement.
49.I think that I would like to try returning to some kind of work, but I know I’ll need significant support to achieve it, and Comcare has denied me this support.
50.For a variety of reasons, including problems with the rehabilitation provider – I have not been given a suitable return to work plan.
51.I saw Dr Terace in 2014, and as a result of his report, my payments were cut off.
52.Comcare ceasing my entitlement to compensation meant that I haven’t had any rehabilitation assistance so all prospects of returning to work were put on hold.
Dr Terace’s Report
53.On 17 April 2014, I saw Dr Terace because he was asked to provide a report to Comcare about my ongoing symptoms.
54.Dr Terace provided a list of things he believed contributed to my ongoing symptoms:
(a)The Comcare system and a perception they were trying to force me to go to work;
(b)The cessation of my payments of compensation between 2006 and 2009;
(c) The AAT process to have my payments reinstated;
(d) The death of my maternal uncle;
(e)My decision to cease anti-depressants for most of 2013 and some of 2014;
(f) My carpal tunnel surgery in February 2012; and
(g) My hysterectomy surgery in August 2012.
55.In my opinion, Dr Terace’s list of factors are not holding me back from going to work.
…
Summary
102.The stressful thing in my life is considering going back into a workplace where I would be at risk of the same things that happened to me in April 2004 and the preceding years.
103.There was no single incident that led to me stopping work in April 2004, that was just the point at which I could no longer cope with what had and was happening.
104.I know people are still bullied in workplaces, and I know assaults still happen.
105.Coping with my mental health issues as a result of the incident in April 2004 means I have to address and conquer my fears about bullying, harassment and assault in the workplace.
Medical Evidence
Report of Dr Lokuratna dated 2 July 2004 (T13 at 34)
On 2 July 2004, Dr Lokuratna reported that LYHH had first attended on him on 13 April 2004, and was referred to Dr Jane Fitch (Consultant Psychiatrist) on 13 May 2004. Dr Lokurtana reported that at the time of referral LYHH suffered from depression and anxiety.
Report of Dr Fitch dated 25 August 2004 (T19 at 43)
On 25 August 2004, LYHH’s treating psychiatrist, Dr Fitch, reported as follows:
Question 1
History provided and obtained during consultations including the first date [LYHH] consulted you
I saw [LYHH] for an initial psychiatric assessment on May 13th 2004. At this time [LYHH] provided the following history:
[LYHH] is a 40 year old married woman who has worked at the Australian Taxation Office. [LYHH] told me that she had found the working environment difficult. She listed many examples of incidents she believed illustrated harassment and bullying. For the last eight years she had additional responsibilities as a Harassment Contact Officer to assist others in the work place. She found this role took an increasing amount of her time, emotion and energy. In her performance appraisal in late 2003 she was advised to cease taking on new cases as a Harassment Contact Officer because of the effect it was having on her productivity.
[LYHH] told me that she was enjoying her work and her team in the first few months of 2004. However she described the events of April 8th 2004 as very distressing. She was approached by the Operational Director and questioned regarding her conversation with a colleague. [LYHH] believed that in her role as Harassment Contact Officer she was committed to confidentiality with this colleague and so was unable to provide her superior with the information he sought.
[LYHH] described a protracted dialogue with her superior in which she felt blamed and criticised. Whilst she managed to remain collected and polite during the interview she described feeling very distressed and overwhelmed after the interview. She subsequently emailed her manager to inform him she was going home and left her work station.
[LYHH] described psychiatric symptoms developing after the interview. She has had middle insomnia, waking each night between 2.00 and 3.00 am and ruminating and brooding about her work place until 6.00 am. She has been very tearful. She described muscular tension and aching. She had a disinterest in food with anorexia and weight loss. She described poor attention and concentration with frequent distraction. She described symptoms of dissociation – “it feels strange to be observing myself almost from outside myself”. She described increasing anxiety but not panic when thinking about her work place. She described lack of energy and constantly feeling exhausted.
These symptoms continued and increased despite being referred by her general practitioner to a psychologist Mr Kamalesh whom she was seeing twice a week. Mr Kamalesh documents similar symptoms of anxiety and depression.
[LYHH] was commenced on antidepressant medication in early June. She began Cipramil 20 mg mane. This resulted in some reduction in her anxiety and pressured negative thinking but many of her symptons have remained problematic. She remains on sick leave.
Other relevant history obtained:
There was a past history of back problems in 1997, cholecystectomy in 2001, breast reduction in 2001 and nephritis as a child. Her medications at the time of assessment were Clomid. [LYHH] is a non-smoker, teetotaller, who does not drink any sources of caffeine and has no illicit drugs. She described no discrete allergies but said she had nausea with anti-inflammatory medication.
Question 2
What was the precipitating factor or event which resulted in [LYHH] consulting you?
As outlined in Question 1, the precipitating factor or event was the meeting between [LYHH] and [Mr B] the Operation Director on April 8th 2004. However this occurred in the context of multiple incidents of perceived harassment and bullying since 1990.
…
[LYHH] saw her general practitioner Dr Lokuratna on April 13th 2004. She immediately referred [LYHH] to Mr Kamalesh for clinical psychology and to myself for psychiatric assessment.
Question 3
Details of any relevant history i.e. underlying or preexisting condition
[LYHH] told me that she had sought counselling with INDRAD, an employer assistance provider with the Australian Tax Office between 1993 to 1996.
This was in relation to bullying in her work with the Child Support Agency.
[LYHH] described herself as depressed at this time. This was in relation to bullying in her work with the child support agency. She attended the Royal Perth Day Hospital for cognitive behavioural therapy in 1997 and subsequently saw Professor Burvill, Consultant Psychiatrist in 1998. She was commenced on several different trials of antidepressants without much effect. In about 1999 she had a trial of Cipramil which was more helpful and it was ceased in July 2000. She then remained well. She spent much of the year of 1997 off work, after some sick leave for a back injury. She then took leave without pay because of her depressed mood.
She ceased her antidepressant medication. Her depressed mood improved thereafter.
[LYHH] denied symptoms of anxiety, depression or treatment for such since year 2000.
Question 4
In your opinion what is the specific diagnosis of the condition from which [LYHH] suffers from
It is my clinical opinion that [LYHH] is suffering from Major Depressive Disorder. She fulfils the DSM IV TR Criteria for this disorder – Appendix A.
She describes low mood, tearfulness, insomnia, anorexia, loss of energy, libido, motivation and concentration. These symptoms have lasted weeks and now months and significant impair with her social, occupational and domestic functioning on a daily basis. It seems that this is a recurrence of a preexisting disorder.
It is likely that the anxiety symptoms and dissociation symptoms are secondary to the Major Depressive Disorder. However it is possible that they represent a second disorder such as Post Traumatic Stress Disorder. However the primacy of the Major Depressive Disorder diagnosis excludes such a secondary diagnosis.
Question 5
In your opinion do you consider there to be a relationship between [LYHH’s] clinical condition and her employment specifying the relationship and employment factors
[LYHH] clearly describes her perceptions that she has been subjected to harassment and bullying behaviour over the course of the employment at the Australian Tax Office. She has sought to impact positively on the culture of the organisation through her role as Harassment Contact Officer. However it seems that the accumulative stress of this position was beginning to affect [LYHH] as evidenced by her reduced efficiency at work. Management recognised this vulnerability and consequence in relieving her of new Harassment Contact Officer duties from late 2003.
The events of April 8th 2004 appear to have been pivotal in precipitating [LYHH’s] recurrence of her depressive illness.
Affective illnesses are generally regarded as having a biological basis but may be triggered or perpetuated by psychosocial stressors. In this case I believe the trigger was the acute or chronic effect of the work place and specifically the role of the Harassment Contact Officer.
Question 6
In my opinion is [LYHH] capable of performing her previous duties
It is my opinion that [LYHH] is not currently fit for work. She continues to suffer poor attention and concentration, disturbed sleep, loss of energy and tearfulness. She has anxiety symptoms when discussing work and does not feel she can manage her symptoms should they escalate.
Question 7
If [LYHH] remains unfit for work please advise her fitness for work period of incapacity and the duration of that incapacity
[LYHH] remains significantly unwell despite medication and psychotherapy. Her cognitive behavioural therapy programme is about to be trialed. Should this be successful a graded return to work may be possible in the next six to twelve weeks. … She may well be unfit for work for another three to six months.
Question 8
What form of medical treatment and time off work is indicated for the employment related aspects of the condition addressing in particular frequency and duration of reasonable medical treatment required
It is my opinion that [LYHH’s] Major Depressive Disorder should be treated with a combination of pharmacotherapy, supportive psychotherapy and cognitive behavioural therapy.
Pharmacotherapy needs to be monitored by a psychiatrist. Fortnightly reviews are, indicated whilst she remains significantly unwell. It may be reduced in frequency to monthly as her condition stabilises and improves. Reviews should be continued for the first three to six months after return to work on a six weekly basis or as needed. It will be important to closely monitor the anxiety and depressive symptoms to ensure that gains are realised and maintained during the stresses of behaviour therapy, cognitive therapy and return to work.
[LYHH] would benefit from cognitive behavioural therapy given her specific anxiety symptoms in relation to returning to work. It seems she will require some desensitisation programme initiated by her psychologist and continued by her rehabilitation provider. It is reasonable that these sessions should occur on at least a weekly basis for eight to twelve weeks.
Question 9
What is the prognosis of the employment related aspects of [LYHH’s] condition?
It is expected that [LYHH] will make a full return to functioning although this may not occur for some months.
Question 10
Do you consider [LYHH’s] condition to being caused or aggravated by factors outside the scope of her employment?
It is difficult to ascertain the cause of Major Depressive Disorder. It is generally accepted that there are constitutional or genetic factors operating in the context of psychosocial stressors. There may be acute biological precipitants but in this case there is no evidence of physical illness such as thyroid disorder or chronic pain.
…
There have been other domestic stressors operating with [LYHH’s] husband having a motor vehicle accident in May, 2004. … However, [LYHH’s] symptoms predated these events and have not been exacerbated by them. Indeed, on the contrary, she appears to function better when distracted away from the worries of her workplace and with another more positive focus.
In terms of compliance, [LYHH] has been compliant with the medication I have prsecribed. [sic] She has not been able to keep all of her appointments.
…
Report of Dr Fitch 3 March 2005 (T41 at 91)
On 3 March 2005, Dr Fitch produced a further report in relation to LYHH’s treatment and medical progress. In this report, Dr Fitch stated that LYHH was still suffering from Major Depressive Disorder and that LYHH had a pre-existing vulnerability to this condition with a past history of Depression.
It was also Dr Fitch’s opinion that workplace stress was associated with the direct precipitation of this illness, saying: “it was the environmental cause that precipitated this relapse of [LYHH’s] Depression”. She further concluded that it was not in LYHH’s interest to return to the ATO.
Report of Dr Terace (Consultant Psychiatrist) dated 9 August 2005 (T54 at 114)
On 8 July 2005, the ATO wrote to Dr Terace asking him to conduct a psychiatric examination of LYHH. On 25 July 2005, Dr Terace assessed LYHH and reported on her psychiatric history as follows:
Past psychiatric history -
1.18[LYHH] consulted Indrad as part of the Employee Assistance Programme offered by the ATO after her first marriage ended in 1991, on two occasions.
1.19In 1993, [LYHH] was then working for a Child Support Agency, and saw a Clinical Psychologist after she was discharged from the Child Support Agency, reportedly due to her early history of sexual abuse, which she alleged interfered with her ability to conduct her duties in that capacity.
[LYHH] saw him for 3 – 4 sessions every 6 – 12 months.
…
1.21In December, 1995, [LYHH] alleges that he made sexual advances to her, and that he compelled her to move in with him. She was in a subsequent relationship with him, in a de facto way for four years.
[LYHH] alleges that he now continues to live in her home even though they have separated.
[LYHH] further described a present and ongoing Court case about this matter with the Psychologist, and her complaints to the Australian Psychological Association (part of the allegations being that it is a repetition of her own early history of sexual abuse by her own Clinical Psychologist.) [LYHH] claims that this provoked her into depression in March, 1996, requiring admission to Royal Perth Hospital at the end of 1996 (a relationship with her Clinical Psychologist reportedly having begun in 1995). [LYHH] then began a day programme in 1997/1998, and a return-to-work programme, and was subsequently referred to Consultant Psychiatrist, Professor Burvill.
Dr Terace then reported on LYHH’s complex personal history as follows:
1.25 Early years – [LYHH's] early years were complicated by:
1.25.1[LYHH’s] parents divorced when she was an infant, and they immigrated to Australia two months later. [LYHH] was raised by her mother.
1.25.2Furthermore, [LYHH] was sexually abused by three different individuals:
1.25.2.1At the age of three-years, recurrently in the order of weeks.
1.25.2.2 At the age of four-years, on one occasion.
1.25.2.3 Between the ages of 9 and 10 on one occasion, which was said to be the most traumatic because "He tried to rape me.”
1.26 Major life events – these included:
1.26.1 The death of [LYHH’s] father in 2003, from testicular cancer.
1.26.2Motor vehicle accidents giving rise to whiplash occurring every two-years after 1981, being 1981, 1983, 1985, 1987, and
1.26.3 [LYHH] fell down stairs at work, and fractured a disc in 1996.
In relation to LYHH’s mental state examination, Dr Terace reported as follows:
I did not find the psychomotor impairment suggestive of the specific major mood disorder of melancholia, nor the motoric agitation of a major anxiety disorder.
Affective responses (by which I mean the overt outward emotional expression at interview) were reactive and bright to the interview and mood (by which I mean the patient’s pervasive emotional tone of speech at interview) was demoralised, but not clinically depressed. [LYHH’s] eyes, facial musculature, and gestures were all expressive. [LYHH] was engaging, and warm in her interactions with me. There were no clinical signs of major depression in the present.
Report of Dr Fitch dated 5 December 2005 (T76 at 158)
This report relevantly reads as follows:
Question 2
From what specific condition does the claimant currently suffer? Please provide a short description of the condition including its known aetiology and progression. Please include clinical signs and symptoms to support your conclusions
In my opinion, [LYHH] suffers from Major Depressive Disorder with low mood, tearfulness, impaired concentration, anergia and hypersomnia. These symptoms are consistent with DSM IV TR Criteria for this disorder.
[LYHH] also suffers from co-morbid Post Traumatic Stress Disorder of longstanding duration. This is characterised by exposure to a trauma with subsequent anxiety, intrusive imagery, avoidance phenomena, nightmares and emotional numbing. In [LYHH’s] case the traumatic incident was initiated by childhood sexual abuse but has been exacerbated by minor traumas involving harassment, exploitation, or breaching of boundaries.
…
In terms of aetiology, psychiatric disorders are generally understood to be multifactorial in origin with stress operating on a pre-existing vulnerability. This vulnerability may be genetic or developmental. The natural history may be chronic and persistent with exacerbations of her persisting condition or relapses and remissions of a [sic] episodic condition.
Question 3
On the balance of probabilities, as distinct from possibilities, is the condition currently suffered by the employee related to:
…
b) a pre-existing, congenital, constitutional or underlying condition
Yes. [LYHH] has personality vulnerability with difficulties in interpersonal relationships.
It is likely she also has a vulnerability to Major Depression although no formal family history is noted. Her childhood experiences form a developmental trauma that has impacted upon her personality development and her subsequent Post Traumatic Stress Disorder.
…
As stated in my answer to Question 2 psychiatric disorders are multifactorial in origin. A single causation is not applicable. As such I am unable to specify a single condition but moreover a multiplicity of stresses operating on an underlying vulnerability.
…
Question 5
Has the condition which was contributed to by the employee’s ceased and been superseded by another episode? If so, would you please specify the circumstances of the new episode
In my opinion there has not been another episode but more fluctuations in the severity of the ongoing episode.
Report of Dr Blumberg (Consultant Psychiatrist) dated 14 December 2005 (T78 at 167)
LYHH was then referred to Dr Blumberg by the ATO for a psychiatric assessment. Dr Blumberg’s report relevantly reads as follows:
She saw [Mr A] for 7 sessions in his private practice. [LYHH] disclosed allegedly having a relationship with her Psychologist over a 4 year period between 1996 and 2000 which was clearly a “boundary violation".
…
Her parents divorced when she was 3 months old. She described her childhood as “lonely" and she was brought up as a Mormon. She disclosed being allegedly sexually abused at the age of 3, 4 and 9 by 3 different perpetrators (I did not think it was appropriate to go into detail with respect to these abuses at today's review). She attended primary school at … and secondary school at … and … where she achieved a year 11 education. She disclosed being sexually abused during her year at …. She disclosed having several relationships prior to meeting her husband and had suffered over the years with several incidents of sexual harassment. She married her husband in August 2002, they have no children from their union. [LYHH] was pregnant last year after undergoing in-vitro fertilization treatment but unfortunately suffered a miscarriage.
…
[LYHH] has signs and symptoms in keeping with a major depressive episode in partial remission. She developed emotional and behavioural symptoms in response to her work related incident in April 2004 which has caused marked distress and impaired her social and occupational functioning. The predominant manifestation of her symptoms are fluctuating mood, insomnia, decreased energy, amotivation, poor concentration, and feelings of helplessness and hopelessness.
[LYHH's] psychiatric condition could be viewed in view of predisposing, precipitating and perpetuating factors. There was no family history to suggest a specific biological predisposition. [LYHH] has an extensive complex past psychiatric history prior to the accident on 8 April 2004. She also has a number of ongoing psychosocial stressors. Her past stressors include work place harassment and abuse over a 15 year period, relationship difficulties, stress in dealing with a boundary violation having a relationship with a treating psychologist, a previous workplace accident in 1996 and past issues of traumatic sexual abuse at the age of 3,4 and 9. These stressors would predispose and increase [LYHH’s] vulnerability in developing a major depressive illness.
…
I believe [LYHH’s] prognosis is in the balance
Between December 2005 and 30 April 2014, LYHH saw numerous mental health professionals. During this time, multiple medical reports were created in relation to LYHH’s psychiatric condition and its effect on her ability to return to work. In relation to the medical evidence produced during this time, the Tribunal relevantly notes the following:
a)In a report dated 21 February 2006, Dr Proud (Consultant Psychiatrist) reported that LYHH suffered from ‘major depression, chronic, moderate severity’ and ‘possible avoidant personality traits’ but that her employment with the ATO continued to contribute to her condition. Dr Proud also reported that LYHH’s past psychiatric history and personality predisposed her to developing depression. (T90 at 194-202).
b)In a report dated 19 May 2006, Dr Fitch agreed with Dr Proud that LYHH suffered from a major depressive disorder that was ongoing. (T99 at 214-217).
c)In a report dated 4 May 2007, Dr Proud reported that ‘although the incident at the ATO precipitated the major depressive illness in [LYHH], her current problems in my opinion, reflect more her avoidant personality traits and her pre-existing psychiatric vulnerability’. He further reported that, “On the balance of probabilities the majority [LYHH’s] condition is not related to the employment with the ATO but represents (b) pre-existing constitutional factors... These particularly involve her early childhood and genetic factors.” and further “In my opinion her employment with the ATO does not contribute substantially to the majority of her current problems” (T118 at 251-258).
d)In a report dated 10 August 2007, Dr Proud reported that although LYHH’s current psychiatric condition was precipitated by the events at the ATO, other factors, including her childhood, an alleged boundary transgression by a psychologist, her personality and certain cognitive beliefs she had were factors contributing to, aggravating and perpetuating her psychiatric problems (T137 at 298-300).
e)In a report dated 8 October 2008, Dr Spear (Consultant Psychiatrist) reported that he had diagnosed LYHH as suffering from Major Depressive Episode, recurrent, in partial remission. He also reported that LYHH was not taking the antidepressant medication prescribed to her for financial reasons and that she was currently fit to undertake a rehabilitation program.
f)In a report dated 30 December 2009, Dr Spear reported that he had diagnosed LYHH as suffering from “Axis 1 Major Depressive Disorder in partial remission, Axis II Possible avoidant personality disorder, Axis III Menorrhagia, under investigations for sleep apnoea, Axis IV Perceived work stress, loss of father, legal issues, childhood trauma, stress of medicolegal process, financial pressures ...”. Dr Spear was of the opinion that it was possible that LYHH’s condition would have arisen in the absence her employment with the Commonwealth but that she did not appear able to work in any capacity. (T222, 503-512).
g)In a report dated 1 April 2011, Dr Fitch reported that that LYHH “has got more motivation and energy and drive. Her confidence is still lacking but she can think more clearly... I have encouraged her to go out of her comfort zone where possible to continue her rehabilitation.” (T257 at 575).
Report of Dr Terace (Consultant Psychiatrist) dated 30 April 2014 (T308 at 663 – 684)
On 17 April 2014, Dr Terace examined LYHH to obtain information regarding her current condition, her capacity for work and her treatment requirements. Subsequently, he produced a medical report which relevantly reads as follows:
I did not find the psychomotor impairment suggestive of the specific major mood disorder of melancholia, nor the motoric agitation of a major anxiety disorder.
Eye contact and rapport were established early in the interview and sustained. [LYHH’s] eyes, facial musculature and gestures were all expressive.
Affective responses (by which I mean the overt outward emotional expression at interview) were reactive and euthymic, and [LYHH] smiled recurrently, and her mood (by which I mean the patient’s pervasive emotional tone of speech at interview) was bright throughout most of the interview. However, I met [LYHH] downstairs at the building of my office which is on the fourth floor, and she was initially and transiently distressed, wept and was anxious, but then rapidly recomposed herself and was engaging at interview.
Speech was normal in rate, form and syntax. The content of speech was appropriate to the interview, without true depressive ideation, true obsessional intrusions, suicidal ideation, posttraumatic phenomena, or evidence of psychotic experience. [LYHH’s] mood disturbance has improved substantially and is intermittent and infrequent and modest to mild with the absence of significant fatigue, anergia or amotivation on most Sessions with improvements in appetite, stability of weight, a description of perceived worsening concentration which can be explained by distractibility, sexual dysfunction for 2-5 years, improvements in sleep such that she is achieving her normal duration of sleep and wakes reasonably refreshed and anxious preoccupations are pragmatic in nature with infrequent physical manifestations of anxiety which occurred this morning in anticipation this appointment such that overall present symptoms are modest to mild and she shows a significant trajectory of recovery .
The sensorium was clear, and a coherent account of the circumstances was provided at interview to suggest intact general cognition.
Schedule of Questions
In answer to your specific questions:
Keeping in mind that liability for the injury is for an aggravation of major depressive disorder, single episode.
Diagnosis and Prognosis
1. From what specific condition does [LYHH] currently suffer? Please provide a short description of the condition, including its known origins and progression. Please include clinical signs and symptoms to support your conclusion.
1. In my last report dated 25 July 2005 I described her as suffering from Major Depression in partial remission.
2. However, whilst the diagnosis remains the same, the condition has improved substantially since that time, such that she is closer to remission substantially more so than when I last examined her, and there has been a clear trajectory of recovery despite a temporary deterioration related to cessation of medication and other psychosocial stressors factors.
3. The diagnostic criteria for the condition in the DSM-V nomenclature are described in my Annexure A.
4. Despite [LYHH’s] belief that her present condition originated in the context of her employment related to her claims that she was mistreated by her former employment the distance in time since the onset of her condition, the temporary deterioration related to her psychosocial factors and the cessation of employment and the presence of non-work related factors all support the view that the present psychiatric condition is probably not caused by the original employment factors described but rather than her present mental state is predominantly caused and her psychiatric condition maintained by the following non-work related factors -
4.1The process of the Administrative Appeals Tribunal to have her pay re-instated which was eventually successful.
4.2From 2005 she described the most substantial distress being the Comcare process and her perceived compulsion to return to work.
4.3The cessation of her pay between 2006 and 2009 which gave rise to what she described as an enormous financial stress and almost the loss of her house.
4.41-2 years prior to her termination of employment she attended the Administrative Appeals Tribunal but was successful in having her pay re-instated.
4.5Her employment was terminated 16 March 2010 according to your letter of instruction page 3.
4.6Most recently her maternal uncle to whom she was close died in early 2014 about 2 weeks ago and described – “Being sad” – even if not emotionally devastated.
4.7[LYHH’s] decision to cease antidepressant medications in excess of 1 year ago and her insistence of being free of medication for year which was clearly associated with a clinical deterioration with irrational anger, irritability, emotional volatility, weeping, steep impairment and persistently depressed mood.
4.8[LYHH] also suffered the physical symptoms of a Carpel Tunnel Syndrome of the right wrist requiring surgery February 2012 and -
4.9She required a Hysterectomy of August 2012 due to excessive bleeding although her ovaries were left intact and she is not yet menopausal according to recent blood tests.
4.10[LYHH] described her anxieties about the Comcare process and that every 6 months Comcare reduces her pay due to her ComSuper payments, such that she experiences a minor loss overall.
5. The clinical signs are described under the heading of Mental State Examination on page 11, and despite her initial anxiety and distress at arriving at my building this was transient, and she was composed throughout the interview, and there were no signs of severe psychiatric condition.
6. My specific examination of her psychiatric symptoms which were critically dissected also supports my conclusion that her former psychiatric condition has improved substantially, and is closer to remission.
2. Has the aggravation relating to the incident of 13 April 2004 now resolved, if so please also provide, where possible, details of when this occurred.
1. In my opinion, any aggravation or causation relating to any incident of 13 April 2004 has resolved.
2. It is difficult to know precisely when this occurred, but certainly there are other psychosocial stressors, and the cessation of medication and psychotherapy, which explain the temporary deterioration since that time, but her condition has improved, and is now the product of other non-work related factors in my opinion – given the distance in time that has passed since the alleged incident of 13 April 2004.
3. What is the prognosis for [LYHH’s] current condition?
1. In my opinion, the prognosis is actually presently good for the following reasons –
1.1There is a clear trajectory of recovery established.
1.2[LYHH’s] subjective symptoms have improved substantially in frequency and severity,
1.3Her current level of activity and level of function have improved substantially.
1.4The Mental State Examination did not show signs of a severe psychiatric condition and showed recovery and –
1.5She has re-engaged in treatment with a Consultant Psychiatrist and there are further options of therapy which she is about to begin despite the interruptions to treatment at her own choice in terms of both pharmacotherapy and psychotherapy.
Capacity for work
Suitable employment is defined under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) as any employment taking into consideration [LYHH’s] age, experience, training, language and other skills and her suitability for vocational retraining.
Any employment includes self employment
1. Is [LYHH] currently medically fit to engage in suitable employment?
1.In my opinion, [LYHH] is currently medically fit to engage in suitable employment for the reasons as described in the aforementioned.
2.Her former condition has improved substantially, her level of activity and her level of function have improved and she has again re-engaged in treatment.
2.If so, please explain
a) The type of work [LYHH] should be able to perform
1.I reviewed [LYHH’s] plans and preferences in relation to return to work specifically with her and she refuses to return to the Northbridge Central Office of the Australian Taxation Office but indicated that it was possible that she might return if they opened a small branch but this does not sound viable given her emphatic refusal to return, but in my opinion, the refusal to return is not the symptom or product of a psychiatric condition, but rather of her own preferences and volition, because her psychiatric condition has substantially improved.
2.I was concerned that she does not have a timeframe for return in mind, and that she is anxious about returning to work, and her preference to work alone, and her perception that she needs clinical psychology strategies first before she commences a return to work program.
3.She probably would be assisted by the services of a vocational rehabilitation provider liaising with a Clinical Psychologist to construct a graduated return to work program, and this would probably give her the best chance of sustained long-term employment.
4.However, clinically, she has capacity for full-time employment now, even if I accept that this will initially be anxiety-rendering and be unpleasant for her, but it is a necessary step because she is chronically entrenched in the sick role and chronic work avoidance and a chronic Comcare claim which has been to her psychological detriment.
5.In my opinion, she should probably not be engaged in employments that require the following -
5.1Recurrent driving.
5.2The handling of dangerous machinery.
5.3The handling of dangerous chemicals.
6.She also perceives that her concentration is impaired related to her distractibility, but I do not think that she is describing classical substantial cognitive disturbance, and rather this distractibility relates to her anxiety symptoms which would be assisted by a graduated return to work program.
7.She would require a sympathetic employer and probably assistance from a colleague initially, but is capable of sedentary employments including administrative, clerical and retail employment.
8.It is best that a vocational rehabilitation provider conduct an occupational assessment and canvass the alternatives of possible employment for her, since this is an occupational matter which is outside of my area of expertise.
b)The number of hours per week [LYHH] should be able to perform
1.Clinically, based on her present symptoms, [LYHH] should be capable of working full-time given both the reduction in the frequency and severity of symptoms, the clear trajectory of recovery, the rise in level of activity and thus the improvements in level of function, and the re-engagement in pharmacotherapy and psychotherapy with a Consultant Psychiatrist.
2.However, given her reticence and her ambivalence and her fears that she will not succeed and her lack of confidence, she is more likely to sustain long-term employment if a graduated return to work program begins at 2-4 hours per day increasing to full-time over 6 months by liaison between a vocational rehabilitation provider and a Clinical Psychologist.
c) Details of any work restrictions, barriers and limitations
1.Work restrictions are as described in the aforementioned.
2.The barriers in this case represent [LYHH’s] own emphatic refusal to return to the Australian Taxation Office Northbridge Central Office and her ambivalence about returning to work and her preference to work alone and her lack of confidence and her perceived need for clinical psychology strategies – such that it probably would be wise for a Clinical Psychologist to liaise with a vocational rehabilitation provider to assist her.
3.The limitations represent the restrictions as already stated.
d) [LYHH’s] suitability for vocational retraining
Medical Treatment
Comcare has adopted the Clinical Framework for the Delivery of Health Services. All healthcare professionals providing services to injured people as part of workers compensation schemes are expected to adopt the principles within the standards and boundaries of their professional expertise. The principles are:
1. Measure and demonstrate the effectiveness of treatment
2. Adopt a biopsychosocial approach
3. Employer the injured person to manage their injury
4.Implement goals focused on optimising function, participation and return to work
5. Base treatment on the best available research evidence.
According to your records, in particular the Claim Invoice List, [LYHH] received the following treatments over the last 2 years:
·Consultations with Dr Fitch on 20/1/12, 10/1/13, 7/2/13, 11/4/13 and 29/4/13
·Pharmaceuticals on 24/2/12, 24/4/12 and 1/5/12
1.What occurred in January 2013 to necessitate four treatments with Dr Fitch in quick succession, when the previous consultation took place 12 months earlier?
1. This is described in the aforementioned body of this report.
2.[LYHH] described a range of non-work related psychosocial stressors as well as her decision to cease medication which led to a temporary substantial deterioration in clinical symptoms.
3.She reportedly missed an appointment and claimed that she was advised by Dr Fitch not to miss further appointments and she had forgotten previous employments so she over-reacted and did not return until she gained the confidence to return to monthly visits on four occasions after she had stopped medication and was over-reacting to everything and wished to learn skills without medications and cope better – such that she elected to see Dr Fitch on a regular basis.
4.She claims that at the end of 2013 Dr Fitch was injured and unavailable but her husband was concerned about her level of irritability despite her improvement and believed that she was better off on medication and she thus consulted Dr Fitch again in early 2014 and has seen her three times since, and is presently discussing the use of low-dose dexamphetamine as an antidepressant which they plan to commence at next visit.
2.Are you able to identify why Dr Fitch is prescribing medication for [LYHH] but our records show no claims have been received since May 2012? Is [LYHH] currently taking any medication to treat her condition?
1.My understanding from [LYHH] was that she had declined to take medication, and that this decision as well as other non-work related psychosocial stressors, was the cause of her clinical deterioration.
2.[LYHH] is not presently taking medication to treat her condition because she had refused, but has recently made the decision to accept medication with the support and advice of her husband and presumably with the advice of her treating Psychiatrist who plans to start dexamphetamine reportedly at the next visit.
3.If not, does that support the finding that [LYHH] has substantially, if not fully, recovered from the aggravation sustained whilst working for the Australian Taxation Office?
1.[LYHH’s] failure to take medication and to sustain regular consultations with Dr Fitch were factors that maintained her condition and contributed to a temporary aggravation of her condition, as well as non-work related other psychosocial stressors.
2.However, [LYHH] has substantially but not fully recovered from her psychiatric condition since I last examined her in 2005.
3.In my opinion, however, any aggravation sustained while working for the Australian Taxation Office has probably resolved, although it is difficult to ascertain the precise time when this occurred for the following reasons –
3.1The distance in time since 2004 that has past.
3.2The relevance of other non-work related psychosocial stressors were substantial and in my opinion are the predominant cause in maintaining her present psychiatric condition and those factors being –
3.2.1The process of the Administrative Appeals Tribunal to have her pay re-instated which was eventually successful.
3.2.2From 2005 she described the most substantial distress being the Comcare process and her perceived compulsion to return to work.
3.2.3The cessation of her pay between 2006 and 2009 which gave rise to what she described what was an enormous financial stress and almost the loss of her house.
3.2.41-2 years prior to her termination of employment she attended the Administrative Appeals Tribunal but was successful in having her pay re-instated.
3.2.5Her employment was terminated 16 March 2010 according to your letter of instruction page 3.
3.2.6Most recently her maternal uncle to whom she was close died in early 2014 about 2 weeks ago and described – "Being sad” – even if not emotionally devastated.
3.2.7[LYHH’s] decision to cease antidepressant medications in excess of 1 year ago and her insistence of being free of medication for 1 year which was clearly associated with a clinical deterioration with irrational anger, irritability, emotional volatility, weeping, sleep impairment and persistently depressed mood.
3.2.8[LYHH] also suffered the physical symptoms of a Carpel Tunnel Syndrome of the right wrist requiring surgery in February 2012 and -
3.2.9She required a Hysterectomy of August 2012 due to excessive bleeding although her ovaries were left intact and she is not yet menopausal according to recent blood tests.
3.2.10[LYHH] described her anxieties about the Comcare process and that every 6 months Comcare reduces her pay due to her ComSuper payments such that she experiences a minor loss overall.
4.Furthermore, [LYHH] elected to cease medication and this was also a substantial factor that led to the failure of full recovery.
5.I believe that, in the absence of the non-work related psychosocial stressors, and [LYHH’s] decision to cease medication and psychotherapy with the Psychiatrist, that her condition would have been in remission long ago.
4.Do you believe [LYHH] requires any treatment for her condition? If so, please detail the type, frequency and duration.
1. [LYHH’s] condition has improved substantially, and it is presently mild, but it does require further treatment because it is not in complete remission.
2.I would estimate that her treatment would require the following -
2.1Monthly sessions with Dr Jane Fitch, Consultant Psychiatrist for the next 12-24 months.
2.26-12 sessions with a Clinical Psychologist for cognitive behavioural psychotherapy, relaxation training, anxiety management and support through a graduated return to work program.
2.3I note [LYHH] claims that Dr Fitch has elected to consider low-dose dexamphetamine as an antidepressant, and I am aware of the research that supports that this can be useful, but my preference is to use conventional antidepressants, but I respect Dr Fitch’s choice based on her knowledge of the patient.
2.4Certainly, in my opinion, [LYHH] does require pharmacotherapy or medication as well as psychotherapy to bring her condition into complete remission.
2.5The cost of further treatment needs to consider the following factors -
2.5.1The cost of the treating Psychiatrist estimated at $325 per session.
2.5.2The cost of a Clinical Psychologist estimated at $220 per session.
2.5.3The cost of psychotropic medications including dexamphetamine or other antidepressants estimated at $35 per prescription per month in accordance with the Pharmaceutical Benefit Schedule, or outside of the Pharmaceutical Benefit Schedule the cost of medications are probably estimated at $50 to $100 per month if Dr Fitch choices to use combination psychotropic or antidepressant therapies. Given the chronicity of her condition, the medication would need to be maintained for a minimum of 5 years, and possibly lifelong, but in my opinion the causation of her present psychiatric condition is not the alleged initiating events in the Australian Taxation Office but rather non-work related matters plus her decision to elect to cease medication and psychotherapy with a Psychiatrist which caused at least a temporary aggravation and deterioration of her condition, and otherwise the condition would in my opinion have long been in remission.
Letter from Dr Fitch to Charlotte Bowyer (Clinical Psychologist) dated 19 January 2015
This letter relevantly reads as follows:
She has been on Comcare Workers Comp Payment for many many years and is stuck with her severe social phobia and perfectionism.
Her restricted life is making her quite depressed but her anxiety prevents her from doing more. She is quite enmeshed with her FOO and [LYHH’s husband’s] cultural heritage has some similarities. There are bucket loads of guilt and shame but it is the unsaid anger which is quite paralyzing.
[LYHH] is a very intelligent woman but her concentration is affected by ADD as well as OSA for which she is on CPAP. Chronic anxiety and the need to be over-inclusive also renders her overwhelmed with the thought of anything new. She interprets the subsequent anxiety as being under attack and so becomes very defensive.
[LYHH] is very keen to please authority figures. She does not like any conflict. She therefore tends to agree with suggestions but then to be unable to implement them because of her symptomatology.
If she over-rode her feelings before, her body would stop her from getting too anxious by panicking dissociating or autonomic reactivity with incontinence. This was very embarrassing and humiliating for her.
…
I am concerned that [LYHH] has become very dependent upon her husband [LYHH’s husband] and whilst he is a tower of strength for her, her previous dependency on others was not healthy and her autonomy was compromised. Her first psychotherapist indeed commenced a relationship with her and then moved into her house, keeping most of her assets on dissolution of the relationship. [LYHH] did eventually report him to the Psychologists Board but this process has been a template for her management of the world. She has understandably been avoidant of psychology since.
However, a different approach is required for [LYHH] to mature her coping skills and learn to assert herself and use her strengths rather than focus on her vulnerabilities. She needs to use less verbal language which is infused with the past scripts and do more.
I am hoping you can assist her with some BrainWise style and DBT therapy which helps her manage her affects and thoughts without getting stuck in the cycle which has held her back for so long.
Initially six sessions under the Medicare Better Access Scheme with [LYHH] paying any gap is reasonable until we can see if Comcare will pay. If they won't, then I would like [LYHH] use her Medicare quota and then private insurance if necessary as it is important that her further path is of her own choosing and progress (or lack thereof) is not attributable to Comcare or other third parties.
It may be helpful to meet with [LYHH] and then a joint appointment with [LYHH’s husband] whereby the conditions of your sessions can be clearly explained and a strategy for non-attendance of booked appointments be made clear.
I am seeing [LYHH] four weekly and will support her treatment sessions with you in any way you see fit.
Email from LYHH to Dr Fitch dated 8 June 2015 (Exhibit R2)
On 8 June 2015, LYHH responded to an email sent to her by Dr Fitch stating, inter alia, that she would see Dr Fitch ‘next Monday at 1pm’.
A portion of this document includes an email first sent to LYHH on 8 June 2015 from Dr Fitch which relevantly reads as follows:
[LYHH] I wrote you a long email late last week but maybe it is still in my drafts.
I don't think this AAT appeal is in your interests. I don’t see what you will achieve from it. I certainly don’t need to be involved and the notes they eventually obtain from me (which are largely your emails) will not assist you.
If you read the report, I tendered in answer to Dr Terace, it confirmed that a return to work process was required and that I was seeking some psychological sessions with Charlotte Bowyer and a Vocational assistance provider to help you prepare for same.
You could have engaged with that under the Medicare better Access programme but you didn’t…which is ok because instead you have been developing your own RTW model. Your email last week tells me how you have been managing your condition and manage tradies and renovate a house, prepare things for sale and even make a profit when the market is down.
Kudos to you and keep doing it...
but how can you expect Compare to then support you in a case where I say you need help to RTW AND Dr Terace says you can do some work and you say you can’t Work at all.
It is inconsistent with the evidence, and that’s what will happen in court.
I think you have difficulties seeing the bigger picture and thinking logically about all this, and you are quite correct to say that you go backwards each time you get involved in a conflict with them. You have also said you receive very little money from them anyway, so I am not sure how much is to be gained by contesting it.
…
Email from Dr Fitch to LYHH dated 8 June 2015
On 8 June 2015, Dr Fitch sent a further email to LYHH (Attachment ‘C’ to the Respondent’s Statement of Facts, Issues and Contentions dated 10 October 2016). This email relevantly refers to the draft email mentioned above and reads as follows:
Here is the one in drafts ie written last week, sorry.
[LYHH]
I am not sure why you are going back to SAT [sic].
It sounds like you were in a good place whilst you were renovating.
In fact it sounds like you do have a retained capacity to work if you are not focussing on adversarial battles.
My treatment plan was looking at you returning to work with some assistance and I am pleased you have sorted out a safe way of working within your conditions.
You have a plan.
You are fit for work on your terms.
I don’t think Comcare will therefore pay you a wage. They deemed you able to work. And it does not sound like it is worth pursuing a process that takes you back.
[LYHH] you have suffered abuses in the past. However, what happened with Comcare was an abuse of process rather than direct trauma to you. It was significant for you but it is not anything of the magnitude of the abuse which you directly experienced as a child or with your previous treating psychologist. You have also had many other stressors in the last 7 years eg [LYHH’s husband’s] injury, family conflicts, cultural issues, as well as medical illnesses, eg menorrhagia, OSA etc
All of those things add up together and contribute to your situation but Comcare are not responsible for all of those. Whilst you locate all of the blame with Comcare, it means you cannot improve or change – they have to. Which by nature a bureaucracy can’t do. So you get stuck and feel terrible and blame them but you don’t have to go to the AAT.
I strongly urge you to find a way to finance yourselves going forward without Comcare, and leave it all behind. You get stuck on a decade of anger and resentment which is very unhelpful for your health as well as your marriage and your quality of life. It also detracts from your capacity to get help as most of the time is spent dealing with your legal matters, not your wellness.
I have no appointments for a little while, probably another week or two, …?
…
Report of Dr Edwards-Smith (Consultant Psychiatrist) dated 11 February 2016 (R3)
On 27 August 2015, Dr Edwards-Smith, Consultant Psychiatrist, was asked by the Australian Government Solicitor, on behalf of Comcare, to psychiatrically assess LYHH. On 10 and 18 September 2015, Dr Edwards-Smith performed independent psychiatric assessments of LYHH. To assist with her assessments, Dr Edwards-Smith was provided with a significant amount of LYHH’s medical documentation. This included Dr Fitch’s clinical notes for the period 20 May 2004 to 15 June 2015. Subsequently, Dr Edwards-Smith produced a report which relevantly reads as follows:
DEVELOPMENTAL HISTORY
[LYHH] was born in England and had migrated to Australia as an infant. Her father was an Anglo-Indian man, born in Australia, and her mother Australian. She said that she did not know her father as they separated when she was an infant, and she therefore grew up with her mother and brothers. She said that her mother had dated and eventually married a man called Bill when she was older, and whom she thinks of as her father. Her mother was very strict and I understood from [LYHH] that she was raised as a member of The Church of Jesus Christ of Latter-day Saints. She said that her mother had joined when she was an infant and never knew anything else.
She reported that she had been sexually abused when she was 3 years of age, and that she had been abused by a friend of her mother’s son when he was 15 years of age. She said that she feels that she can remember this event, despite her young age. When she was 4, she reported that she was apparently staying with someone while her mother was pregnant. She said that she has no idea what happened, but apparently there was an incident that happened when she was left at a church and didn't tell anyone. When she was some 9 or 10 years of age, she said that her mother was engaged, and she was molested. She said that her brother came in and told their mother. She said that her mother had reacted very emotionally.
She said that when she was 22 years of age, her mother had sent her to Dr Manners to discuss this on a one off occasion. She told me she thought that she had processed this experience.
She had attended primary school where she recalled being painfully shy, however, as an adolescent said that she had changed and discovered boys. She said that she had a happy adolescence, attending a good youth programme through the church, and had a steady boyfriend for 5 years. She said that she had travelled to Europe and thought that she had developed a good self-esteem, and had left school after the fourth year of high school.
She said that she had worked in cafes, in retail, and then later attended Canning College where she commenced a Bachelor of Business Studies. She said it had been difficult to study while she was working. She had been working in Cecil Bros. she said in an executive role, and so had decided to defer her studies, although later completed her Degree while working at the ATO.
She had left the LDS Church when she was 26 years of age. She said that she had a disastrous marriage in 1990 and that the marriage had ended within a year. She had married her second husband in 2000. She said that she and her husband are besotted with each other. She acknowledged that there has been issues with fertility, with her only pregnancy being lost at 10 weeks. There had been IVF commencement in 2004 with another cycle in 2005.
…
44.1 what is the precise diagnosis of that condition;
I have made a diagnoses of the following:
1. Major Depressive Disorder, chronic, currently in partial remission.
2. Anxiety Disorder, not otherwise specified.
3.I also consider there is evidence of significant personality dysfunction with evidence of avoidant/dependent traits, and histrionic/borderline traits given that I do consider that there is evidence of a recurring pattern of issues commencing certainly from 1990, although not prior to the age of 18, and in the context of her significant developmental issues, I think it reasonable to conclude that there is evidence of a Personality Disorder, not otherwise specified.
44.2when did the condition first arise?
As best I can determine, [LYHH] developed symptoms of a Major Depressive Episode and Anxiety Disorder subsequent to the multiple issues she experienced, perhaps from 1994, and certainly after she began her relationship with [Mr A] in 1996.
…
44.3do you consider that the applicant’s employment with the ATO caused or contributed to or aggravated the condition to a significant degree? By ‘significant degree’ we mean ‘a degree that is substantially more than material’. If yes:
44.3.1 please explain the reasons for your views;
I am not of the opinion that these multiple conditions have been contributed to, to a significant degree by her employment.
In respect of the Personality Disorder, as I have stated above, the Personality Disorder is related, particularly to the inherent temperament of the individual, subsequently influenced by significant developmental experiences. Those of relevance here would particularly include her abandonment by her father as an infant, and repetitive issues of sexual abuse that she refers to. Personality disorders are relevant as I do consider they have led her to a significantly increased vulnerability to the onset of mood disorder given her sensitivity in relationships. Dr Fitch, in her notes of 3rd September, 2004, refers to adolescent issues of bullying and victimisation in high school, which although not directly causative would have perhaps rendered her further sensitive to perceptions of bullying and harassment in adult life, and certainly may be relevant to the development of her personality issues.
Ultimately, the cause of the relevant psychiatric conditions, which here I consider to be Major Depressive Episode, and an Anxiety Disorder, need to be considered in the context of the relevant predisposing, precipitating, and perpetuating factors. The predisposing factors are in of themselves, considered to be of significant magnitude to account for the onset of a significant depressive and anxiety condition in adult life. This includes the history of significant childhood sexual abuse, l understand abandonment by her father in infancy, a period of temporary affective abandonment by her mother when she was 4 years of age to give birth during which she was abused, significant family of origin issues (as indeed are referred to by Dr Fitch in her report of 19th January, 2015).
The first significant condition that came to clinical attention from 1996 onwards, appears to relate initially to the physical effects of a motor vehicle accident, however, were then obviously intervened, indeed derailed by the boundary blurring relationship that she experienced with her treating Psychologist, [Mr A], which she has reported to me and other practitioners to have been abusive, and indeed the end of the relationship left her financially bereft. I understood from the notes that the legal dispute with [Mr A] continued for years, and after the 2004 commencement of her workers compensation claim.
…
44.3.2what were the employment factors that caused or contributed to, or aggravated the condition?
I understand that at the time that she ceased work in 2004, she reports experiencing workplace stressors, at that time particularly related to a distressing altercation with a manager in which she perceived that she was bullied and harassed in a meeting of some one and a half hours. I do think it reasonable to consider that such an interaction in the context of her perception that there had been issues of unfair treatment, and episodes of bullying and harassment for a period of some years, did trigger, at that time, an exacerbation of her pre-existing depression and anxiety.
…
44.3.4does the applicant continue to suffer the effects of her employment-related condition?
In my opinion, one cannot reasonably conclude that she continues to suffer the effects of an employment-related condition, related to the interaction with [Mr B] in 2004, notwithstanding that she has also reported experiencing other episodes throughout the course of her employment. It was indeed the interaction with [Mr B] which precipitated the symptoms associated with incapacity, and which would therefore be considered to be causative to a temporary exacerbation of her pre-existing conditions. In my opinion, there are intervening and indeed subsequent stressors of sufficient magnitude to account for her ongoing psychiatric issues, noting that these have indeed fluctuated since she ceased work, and relate both to her pre-existing personality issues and a pre-existing vulnerability of childhood sexual abuse, and that the pre-existing personality and constitutional issues and childhood abuse would indeed have rendered her vulnerable to the onset of a significant psychiatric disorder in adult life.
The relationship with [Mr A] does seem to have been a somewhat life defining event for [LYHH], and indeed Dr Fitch, in her notes from 15th June, 2015, refers to the discrepancy between her description of emotional response to issues with [Mr A] versus the issues with the ATO, and that [LYHH] consciously attributes her symptoms to work-related events, rather than the more painful, presumably, non-work-related experiences that she has obviously suffered. If I understand correctly, [LYHH] began a relationship with [Mr A] in 1996, and although the relationship ended, I understand that several years later (in the notes of 12th May, 2008, Dr Fitch refers to ongoing contact with [Mr A]), and I understand that the legal dispute was present for many years in addition to the personal stressors related to the breakdown to the relationship with [Mr A] forming a new relationship. [LYHH] was left with the further stressors, I understand, related to the financial adverse sequelae she experienced after the breakdown in the relationship, and subsequent legal issues regarding a financial dispute, and eventual report to the Psychologist’s Board.
Further stressors since ceasing work include a period of treatment for infertility in 2004 and 2005, and miscarriage of pregnancy, intervening medical issues, including obstructive sleep apnoea and iron deficiency anaemia (later corrected). Obviously, also significant secondary gain issues which I consider to be certainly at least unconsciously perpetuating her behaviour in the sick role, which are both financial and also non-financial, with the increased solicitous care provided to her by her husband. Again, these motivational issues, in my opinion, are predominantly unconscious.
There have also, since 2004, obviously been very considerable financial pressures, and periods of interruption to treatment which are quite clearly associated with a further deterioration in her depressive illness.
In my opinion, these pose considerable, indeed compelling elements which have interrupted any causal link between the original workplace incidents and her ongoing psychiatric issues.
44.4if you consider that the applicant continues to suffer the effects of her employment-related condition:
No, I am not of the opinion that her ongoing psychiatric conditions relate aetiologically to an employment-related condition.
44.4.1does the applicant currently require further medical treatment for the condition, and if yes, state the nature and anticipated extent of any further treatment, medication and details of any further procedure or investigations which you consider would be warranted; and
In my opinion no further treatment is required for any work related contribution to her condition. She is likely to require long term psychotherapy and medical treatment from her treating psychiatrist (12 appointments per annum with Dr Fitch for 5 years, and medical treatment estimated at approximately $40 per month).
Report of Dr Ng (Consultant Psychiatrist) dated 9 August 2016 (A3)
On 23 June 2016 and 7 July 2016, Dr Ng examined LYHH and diagnosed her as suffering from:
(a)Major Depressive Disorder (DSM 5), currently to a mild-to-moderate extent and partially treated;
(b)Chronic anxiety symptoms, which could either be subsumed under the diagnostic umbrella of major depressive disorder or separately diagnosed as an Anxiety Disorder Unspecified (DSM 5), manifesting with generalised anxiety symptoms, social anxiety and previously anxiety attacks.
Dr Ng reported that the prognosis of LYHH totally resolving her psychiatric condition was poor given the protracted nature of her psychiatric difficulties.
Report of Dr Fitch dated 25 May 2017 (R5)
This further report from Dr Fitch provides:
4.1.does [LYHH] continue to suffer from an 'aggravation of major depressive disorder, single episode' (AMDD) to which her employment, by the Australian Taxation Office, was a materially contributing factor?
Yes
4.2.does the AMDD result in [LYHH] behaving in a manner that is outside the boundaries of normal mental functioning? If so, please describe such manner?
The boundaries of normal mental functioning is not a psychiatric term. I believe it may be a legal term.
I do not want to mislead the Tribunal by answering this question without clarification. It is best that I answer this in the Tribunal.
4.3.do the actions taken by Comcare on 5 January 2015 pertaining to the cessation of worker's compensation payments to [LYHH], and/or [LYHH] commencing and/or maintaining proceedings in the Tribunal materially contribute to the AMDD requiring [LYHH] to obtain medical treatment and/or prevent her from undertaking employment, to which she is suited and qualified?
Yes
4.4.does [LYHH] have Autism Spectrum Disorder (ASD)?
It is my opinion that [LYHH] has atypical neurodevelopment with features of both Attention Deficit Disorder and Autistic Spectrum Disorder.
Having both conditions ameliorate the severity and impact of the other and so diagnostic criteria for caseness for ASD has not been met.
ADHD increases motor drive, sociability, impulsivity, reward dependence and novelty seeking. ASD increases harm avoidance, and persistence.
Both conditions convey hyperfocus in areas of interest, social difficulties.
As such the person with features of both ASD and ADHD may be odd, socially naive, emotionally sensitive and somewhat obsessive, but they are usually compliant, conscientious and sticklers for process and truth. They can be very good employees in process driven tasks.
Difficulties may arise when required to multitask outside of their skillset; they are promoted to management positions or are subject to social pressures or bullying.
a. what is the date of its onset?
ASD is a lifelong disorder with onset was in infancy.
b.does ASD result in [LYHH] behaving in a manner that is outside the boundaries of normal mental functioning? If so, please describe such manner?
That [LYHH] was a valued employee for many years at the ATO suggests that she did not have clinical manifestations of ASD or ADHD - or behaviours outside of the bounds of normal mental functioning. These features have become manifest with the onset of the Major Depression/PTSD arising out of her workplace stress.
4.5.is ASD an ailment/disease (i.e. a physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development))?
ASD is an operationally defined psychiatric disorder in the DSMV.
4.6. is ASD a 'mental' injury? By injury, we mean is there a pathological or physiological process or change involved, and if so, describe what is involved.
ASD is best described as atypical developmental course which is delayed, assynchronous [sic] and skewed.
There are delays and deficits in verbal communication, social interactions, interest, focus and thinking styles, affect regulation, sensory perception and metacognition.
A developmental trajectory is shaped not just by the inherited neurocircuitry but the goodness of fit with the early attachment, physical environment, family, culture, peers and external events. As a result each person is unique in their resultant symptoms, signs and social and communicative dysfunction.
If the external environment is structured, stable and protected, then there may be more scope for the young person with ASD to catch up with their peers and adapt to functioning relatively well in adulthood within a limited repertoire.
It is a struggle for the young person with ASD will to manage their emotions, senses, body control and thinking. They can become very reactive to stress and uncertainty with meltdowns and defensive withdrawals – reactions which impact upon their capacity to function independently or occupationally.
In unsuitable environments where their disabilities are not recognised, they may be subject to social harm, financial follies, occupational/academic failure and exploitative relationships. They may then develop additional psychiatric diagnoses such as diagnoses of OCD, SAD, MDD or psychosis.
In the event of separate illness, trauma or injury occurring in later life, a person with underlying ASD traits may have different pattern of symptoms, reduced insight or reduced capacity to comply with regular treatment approaches. Their neurodevelopmental accommodations have " been undone" – not just by the impairment of Depression or PTSD but doubly by the loss of scaffolding provided by work, routine, role and identity.
Prognosis is worse and deterioration likely if the person's vulnerabilities are not recognised.
It is also relevant to note that the person's persistence and attention to detail, – characteristics valued as an employee – become obstacles in the workers compensation process and polarised positions can occur.
4.7.do depression and/or anxiety arise comorbidly with ASD?
Yes.
People with ASD can develop separate psychiatric disorders such as anxiety and depression .
4.8.does [LYHH] have a capacity to undertake employment, for which she is suited and qualified? If so, would the nature of such employment include, for example 'bookkeeping in a small office' or similar clerical duties in a comparable environment (suitable employment)?
Yes, most likely, depending on her capacity to manage a RTW
4.9.does [LYHH], to take up suitable employment, require participation in a rehabilitation program that includes regular counselling by a suitably qualified clinical psychologist, regular therapeutic treatment by you or another psychiatrist recommended by you, and involves a graduated return to suitable employment?
Yes
Oral Evidence
The Tribunal heard oral evidence from:
a)LYHH, who was then cross examined by counsel for Comcare;
b)Dr Edwards-Smith, who was then cross examined by counsel for LYHH; and
c)Dr Terace and Dr Fitch who initially gave their evidence concurrently and were then cross examined separately at a later date.
LYHH
This matter raised issues from LYHH’s past that were deeply traumatic to her. Despite this, LYHH presented with poise and a great deal of courage when giving evidence at the hearing of this matter.
At the hearing, LYHH confirmed the contents of her statements dated 24 June 2016 (Exhibit A1) and 13 October 2016 (Exhibit A2) respectively. When cross-examined, LYHH gave oral evidence in relation to a number of different topics, including but not limited to, her employment with the ATO, current and past medication use, past injuries and past compensation claims and her current state of mental health.
Dr Edwards-Smith
As outlined above, Dr Edwards-Smith psychiatrically assessed LYHH on 10 September 2015 and again on 18 September 2015. As a result of these assessments, Dr Edwards-Smith produced a detailed report dated 11 February 2016. She was referred to this report when examined by counsel for Comcare, Mr Wallace.
In relation to her report, Dr Edwards-Smith outlined her views as follows:
[Mr Wallace]: It seems from your opinion in answering the question that was posed to you, on factors that caused or contributed to or aggravated [LYHH’s] psychiatric condition, you considered that there were events that had taken place in the course of her employment at the AAT that did contribute to her having that condition. Is that correct?
[Dr Edwards-Smith]: So, yes. So I’ve referred to the issues when [LYHH] ceased work in 2004 and I’ve listed in that the paragraph – the issues which caused her distress at the time.
[Mr Wallace]: I think the last few lines or the last full sentence of that paragraph is:
I do think it reasonable to consider that such an interaction in the context of her perception that there had been issues of unfair treatment and episodes of bullying and harassment for a period of some years, did trigger at that time an exacerbation of her pre-existing depression and anxiety.
And that’s still your opinion?
[Dr Edwards-Smith]: Yes.
[Mr Wallace]: Thank you. Subsequently though you went on to provide an opinion that notwithstanding the view in relation to the exacerbation of the condition, that the psychiatric condition that [LYHH] presently seems to suffer from, is no longer contributed to by those events as she described them to you and as set out in the documents you were provided to the condition she presently suffers from. Is that correct?
[Dr Edwards-Smith]: Yes.
[Mr Wallace]: Now, could you tell the tribunal why you’ve come to that conclusion?
[Dr Edwards-Smith]: I’ve come to that conclusion based upon the information provided from [LYHH], and my review of all of the documentation, that I formed the opinion that I felt it was reasonable in a vulnerable woman who had already experienced anxiety and depression, that if the events as she reported them happened, that they would have caused her distress and an exacerbation at that time of her anxiety and depression. But that’s a different matter to causing an enduring and permanent impairment related to a situation 12 years later. So that’s based upon the extent of the pre-existing vulnerability factors, including the developmental trauma I referred to, and the history of psychiatric issues in the late 1990s. And although [LYHH’s] recollection was that she was well in the early 2000s, there are some notes to suggest that she wasn’t asymptomatic, and that there were other issues relevant to her symptoms. And that there has been a parallel process concurrently with the issues she was experiencing at the ATO with her then-relationship with her psychologist, (indistinct) which has obviously been an enormous impact upon [LYHH’s] life. And there have also be subsequent issues, life stressors, expected life stressors, including infertility, some medical conditions of relevance including treatment for obstructive sleep apnoea which is associated with chronic depression. And then there have also been fluctuations of the condition including certainly by the time of Dr Terace’s report that there had been an improvement in her work capacity. So there had been intervening stressors and then an improvement in the condition. So my opinion is that to attribute the current issues to the events in 2004 would be an inadequate explanation.
(11 November 2016 Transcript at 3-4)
Dr Edwards-Smith was then cross examined by Mr Bruns relevantly as follows:
[Mr Bruns]:So towards the end, page 18, you begin your opinions as saying, “As best I can determine,” and is that a reference to the difficulty anyone would have in talking about causation back in 2004 when you’re writing it in 2016?
[Dr Edwards-Smith]: It is challenging but that’s my job and that’s – as I said, I try to do the job as best I can. So I’ve given my opinion according to the rules of expert witness as best I can. And, yes, obviously as we can say, there are factual inconsistencies. I mean, I do – I mean, it is my opinion that there were issues in 2004 related to non-work issues which were relevant to the condition at the time. But ultimately I think my – I wasn’t the person asked to determine that in 2004. I’m giving the opinion as best I can in 2016. But that said, even if it was accepted that the work was relevant in 2004 I’m not of the opinion that it’s the material contributor to the current issues.
(11 November 2016 Transcript at 10)
…
[Deputy President]: Doctor, you’ve referred a few times to this case as being complex or particularly complex. What exactly makes this case complex as opposed to others?
[Dr Edwards-Smith]: Well, I think if you think about perhaps that ultimately the most simple case, which – for example, someone that falls at work, breaks their work, there’s a very obvious physical injury, I think that’s probably the ultimate in a simple injury. Psychiatric cases are never as simple as that. But if we look at the range of psychiatric cases – and in my experience, which is considerable, there are multiple causative factors. And so – which is very interesting. But there is a gamut of relevant stressors by predisposing – and remembering that an individual is very complex, and I think that it’s over-simplistic to attribute a condition that has been present for 20 years now to a series of single incidents, however distressing they were at the time, of bullying and harassment, and that ended 12 years ago. So and I think the personality issues and the conscious versus unconscious contributors. I mean, there has been re-traumatising through all of the litigation. I think it must be very – [LYHH] is sitting here listening to me speak – it must be very distressing. There has been, you know, issues related to payment, financial pressures, and all of – I mean, even the issues of litigation themselves become relevant to having to try to justify one’s position for so many years. So I thought that Dr Fitch’s correspondence to [LYHH] regarding ending that process was very pertinent, and I – it’s not my position to – I’m not treating [LYHH] but I thought that Dr Fitch suggesting that this process was going to be distressing to her, was very apt. So it is a very complex case. In terms of causation and some diagnostic issues about the personality or Dr Fitch – even Dr Fitch, who has been treating her for so many years has now just – has now come to a conclusion that perhaps there’s an additional issue that myself and other psychiatrists hadn’t considered, of Asperger’s syndrome. So there’s many issues.
[Deputy President]: And you’ve referred in detail in your notes and in your discussion today about the evident traumas that occurred during [LYHH]’s time at the ATO and the effect that that had in terms of her mental health. I don’t read you to suggest today that what occurred at that point in her life has no impact on her mental health today, or is that what you’re saying?
[Dr Edwards-Smith] I think it still causes her distress but that’s not to say that it’s causative to a psychiatric – to the threshold of a psychiatric condition. And I think I looked at also the fluctuations in the presentation over the years and certainly by the time that – even the periods of gaps in treatment, the cessation of antidepressants in – and I don’t have the dates in my head – I think 2010, 2013, that by the time Dr Terace reviewed [LYHH] in 2014 there was a more, you know, definite improvement. So even a depressive condition can be remitting and relapsing by its nature. That can be the natural history of the illness. But that’s not to say that looking back and reflecting on stressful life events, particularly given that [LYHH] did leave her place of work and has never returned, that that’s not distressing and a sense of loss and many psychological issues associated with that.
…
[Mr Bruns]:Thank you, sir. And is it theoretically possible that the 2004 incident which caused mental distress could still be affecting work capacity in 2016? I’m talking generally?
[Dr Edwards-Smith]: I think it’s very unlikely.
(11 November 2016 Transcript at 13-14)
Dr Terace and Dr Fitch
At the hearing, Dr Terace and Dr Fitch initially gave evidence concurrently. When questioned extensively by counsel for both parties and the Tribunal, they relevantly stated as follows:
[Dr Terace]:… I would agree with the likely diagnosis that Dr Fitch has concurred that this lady has at some point suffered from a – what we describe as a major depressive disorder.
Having said that, it is my view that the major depressive disorder probably was not the product of employment – if I accept that the facts that she claimed which were that she was abused and harassed and mistreated were not true but rather of developmental and other factors in her life – and even if it was the product of events in the workplace at that time, most major depressive disorders go into remission unless they are propagated by other factors and in this case the evidence supports that those factors are her developmental history including tragic claims of sexual abuse and other factors in her early development, other major life events which sensitised her and personality characteristics which the evidence supports are sufficient to meet criteria for aberrant or abnormal personality traits, if not personality disorder. I concur with Dr Edward Smith’s position that there is sufficient evidence to argue for a personality disorder otherwise not specified.
…
[Dr Terace]:… I concur with the opinion of Dr Gemma Edwards-Smith. I believe her opinion was there was sufficient evidence to support a personality disorder otherwise not specified, which is a diagnostic term in the DSFI nomenclature, meaning essentially that there are – that this applicant in my opinion – there is sufficient evidence to argue that she has a collection of maladaptive personality traits which have sadly led to symptoms complicated by medical illnesses and major life events and that her condition would have resolved probably within a year in the absence of events that propagated the disorder and the evidence is that her previous major depressive disorder or disorders resolved within that time frame.
(11 November Transcript at 25)
…
[Deputy President]: She did have a pre-existing condition, you would accept that.
[Dr Fitch]: M’mm.
[Deputy President]: Your diagnosis is that the events at the ATO aggravated that, or triggered it, resulting in the condition that she then developed at that time, is that correct?
[Dr Fitch]: Resulted in the symptoms of major depression at that time, yes.
[Deputy President]: And do you think that her current mental condition is still connected to the events?
[Dr Fitch]: Yes, I do.
[Deputy President]: And what do you think, Dr Terace? If we accept that she had a pre-existing condition, and if we accept that the events as disclosed by [LYHH] did in fact happen, would you accept that that – those events would have triggered or aggravated the pre-existing condition, resulting in depression at that stage, and I’m referring to roughly 2004.
[Dr Terace]:If I accept that the events occurred as claimed, then it would be reasonable to argue that there was some contribution from the events of the workplace to the onset of the psychiatric disorder or the aggravation of a pre-existing condition. However, most major depressive disorders do resolve, and there is substantial and overwhelming evidence to support the view that the condition probably would have resolved in the absence of other factors, both constitutional and psychosocial, and with particularly, the Comcare process itself in which – if I may refer to – firstly, Dr Kendall, I would just like to complete my response to Dr Fitch’s very appropriate intervention of my attempt to use my personal interaction as an example.
[Deputy President]: Well, before you go there, it’s an important point that I’m trying to get at.
[Dr Terace]: Okay.
[Deputy President]: Because it’s central to the issue before this tribunal. You’ve just said to me that if we accept that what [LYHH] says happened happened, and then that aggravated a pre-existing condition, the question that flows from that is are you now saying that the current mental state [LYHH] claims to feel or currently have, as diagnosed by her treating psychiatrist, isn’t connected to the events?
[Dr Terace]: Yes, I am.
[Deputy President]: Why is that?
[Dr Terace]:Firstly, let’s assume the diagnosis is major depressive disorder, and let’s ignore the intellectual controversy about the use of the term persistent depressive disorder or dysthymia. I was trying to make the point that both terms could be used, but it doesn’t matter what diagnosis is chosen. But if we accept that the diagnosis is major depressive disorder, most major depressive disorders result – in the US studies 40 per cent begin recovery within three months, 80 per cent within 12 months, and only 5 per cent have recovered within five years. Her previous history showed that her former depressive disorder resolved within one year, and that’s well documented. So the question is as to – there’s always a reason – there are reasons as to why a condition is propagated, a major depressive disorder is propagated.
[Deputy President]: All right … Dr Fitch … You disagree with that point?
[Dr Fitch]:The reason she got better before was because she could return to work. Work is healthy and routine and also being able – if she’s working and thinking, she’s not feeling. She wasn’t able to return to work after the incident because the incident precluded her from returning to work, it was no longer – in that she had felt – she accepted that work was a place where one could be – one’s personal space and sensibilities and – would be invaded, and she could be harassed, but felt that nothing more would happen because of this – because of the existing – the existence of a sexual harassment policy.
[Deputy President]: And do you feel that the events of 2004 at the ATO and those events that preceded that date, today contribute to her current mental condition?
[Dr Fitch]: I feel that the depression has never remitted, and one of the perpetuating factors is because she hasn’t been able to return to work and feel safe enough to return to work, given her knowledge of her only workplace for 17 years and the boundaries and management actions within that. And I guess the difficult – well, and her – that each time she tried she just suffered more bodily shame and so on, and she did – she’s always wanting to work, she just hasn’t – just can’t.
(11 November 2016 Transcript at 47 – 49)
During cross examination, Drs Fitch and Terace were questioned as follows:
[Mr Wallace]: If I can perhaps put that back to you as succinctly as I can. Is it a person may have a number of symptoms that might be associated with a particular or, indeed, a number of established psychiatric ailments, however, not sufficient to come to a firm diagnosis of any one of those ailments?
[Dr Fitch]: Is this relating to question 4.2?
[Mr Wallace]: Yes?
[Dr Fitch]:Question 4.2 is about does the depression result in her behaving in a manner that’s outside the boundaries of normal mental functioning. From a psychiatric point of view, [LYHH] has an enduring case of major depressive disorder that continues to affect her thinking, feeling, social and occupational functioning such that it’s outside – such that it is abnormal, pathological or in need of treatment.
(26 May 2017 Transcript at 6)
…
[Mr Bruns]:In the present? Have you changed your mind since then?
[Dr Terace]:I believed we had this discussion at our last interaction, but I think that it requires a review of the totality of the evidence, which I did not have at that time of the production of this report, such that my opinion has evolved. May I ask, I would argue that the issue of causation is very complex in this case, because of the diversity of factors, the chronicity of factors, consistencies and inconsistencies demonstrated amongst various writers, to which I would need to allude to, which would be a time consuming process. But if I accepted – firstly, I would need to be certain that the events of 8 April occurred. My understating was, from [LYHH] at that time, was that she was threatened with some form of disciplinary action and her performance and/or conduct criticised. She’s saying it was unreasonable and using a number of terms, such as bullying. Whether it was reasonable or unreasonable is not for me to determine. That I consider a matter for this process and for Dr Kendall to determine. But if that event occurred as stated then my position would be in agreement with the opinion of Dr Gemma Edwards-Smith, that, with the totality of the evidence, that it probably a transient contributor and – a transient contributor to either the onset of a psychiatric condition or the aggravation of a pre-existing one, which is a matter which Dr Edwards-Smith reviews, very (indistinct), in detail, in reviewing all the medical evidence, but that given the number of other factors described in the medical documentation that, alone, I could not consider it in the present to have been a substantial cause of a psychiatric disorder and, certainly, any causal link between that event and the present has been broken by a variety of factors and a variety of reasons.
(26 May 2017 Transcript at 33-34)
…
[Mr Bruns]:You have referred to some observations by Dr Fitch. Dr Fitch, of course, has had many opportunities to make continual observations, between 2004 and now, so a period of some 13 years, that gives her the scope to observe [LYHH] more frequently, doesn’t it, and gather more data than you have had?
[Dr Terace]:That is correct, sir, but there is no clear evidence that diagnostic decisions by independent medical examiners are less reliable than clinicians. That’s been well-established.
[Mr Bruns]:Are you saying it’s not advantage at all to see someone more frequently?
[Dr Terace]:It certainly is clinically, but it does not necessarily improve the diagnostic precision.
[Mr Bruns]:Surely seeing someone on more occasions enables you to see different aspects of them?
[Dr Terace]:I think it’s reasonable to argue that it enables you to see different aspects of them. Whether that changes the opinion about causation or diagnosis is a different matter.
(26 May 2017 Transcript at 39)
…
[Dr Terace]:From personal experience and also from my knowledge and the research in this area we know that when we enter into a therapeutic relationship with a person each personal interaction occur such that we – our sole intention is to act in their best interests and a process occurs, which is called transference, which means a series of interactions which go back and forth between the patient and the treating person, such that the treating clinician needs to be aware of boundaries and that their own objective observations can be influenced by their sympathy and their driven and appropriate desire to treat the patient, which is the role of the treating clinician. But that same honourable and noble intent can also blind a clinician to certain aspects, and it certainly does in psychotherapy when we frequently learn that our judgements about a patient are incorrect in the process of evolution of the psychotherapy of that patient, as Dr Fitch was involved in that patient. Dr Fitch, I have great respect for Dr Fitch, she is a fine clinician, she is pragmatic, intellectual, kind, compassionate. I know her personally, I am her colleague. This is not any disregard to Dr Fitch, but it is a reality that the role of a clinician does influence one’s judgement about certain objective matters, particularly when they pertain to the medico-legal process. That’s certainly exemplified in the email communications between Dr Fitch and [LYHH], of July 2015, to which I referred to the last time we had these discussions, sir. In which there’s a very clear account of Dr Fitch – of [LYHH] explaining her circumstances to Dr Fitch, that she’s presently actively engaged in a successful renovation and supervising trades but is intent on proceeding with the Comcare process, out of financial and other need, and Dr Fitch’s response that it was ill-advised, and the Comcare process is aggravating her condition, and that there were clear inconsistencies between her descriptions and her claims of incapacity that would go against her in a court of law. Dr Fitch argued at our last meeting, that this was a therapeutic intervention, and regardless of whether it was or was not, the facts and evidence still present themselves in that document. Furthermore, Dr Fitch has, only approximately two hours ago, I believe, been presented with a document by Dr Fitch, addressed to Dr Kendall, of today’s date. Dr Kendall, I don’t know whether you’ve had the opportunity to read it.
[Deputy President]: Yes, I have? Okay.
[Dr Terace]:In which Dr Fitch argues that the primary diagnosis is of autism spectrum disorder, interacting with ADD. Now, I would prefer to have the opportunity to expand upon that in depth, and if asked to, I will. But you will note that no other clinician who has seen this patient, including Professor Burvill, who treated her, provided a diagnosis of an autism spectrum disorder, nor any psychologist, nor any independent clinician, whether for the plaintiff or the defendant, including Dr Frederick Ng. Such that it’s arguable that the preponderance of medical opinion does not support Dr Fitch’s primary diagnosis of autism spectrum disorder…
[Mr Bruns]:Dr Fitch first saw [LYHH] one month after the incident. You first saw [LYHH] 15 months after the incident. Does that not give her an advantage in talking about causation and the contribution of different elements, many of which have been since Dr Fitch first saw her?
[Dr Terace]:On face, it would appear so, sir, but the reality is that the – it also depends on whether all the available evidence had been presented to Dr Fitch at that time. And Dr Edwards-Smith reasonably argues, and I concur with her opinion, that all the available evidence was not available to Dr Fitch at that time. For example, Dr Edwards-Smith argued that there was a – whether conscious or unconscious, a ation [sic] of descriptions of other stressors in her life at that time. For example, minimis failure of documentation of other stressors in the initial compensation claim. The failure of descriptions of other stressors which ranged from, I believe, one of them was her husband had some form of accident, and another was efforts of IVF, and the miscarriage, and the gravity of the process that [LYHH] was confronting, the tragic circumstances in which a gross boundary violation is alleged to have occurred, and I understand has been sustained by the legal process. I’m using the term “alleged” – common parlance, because I cannot confirm it. It’s for Dr Kendall and this process to confirm, that a psychologist had committed a boundary violation, entered her home, entered a long-term relationship with her, which subsequently left her financially bereft since the home was taken from her.
(26 May 2017 Transcript at 40-42)
CONSIDERATION
There is no doubt that LYHH currently suffers from a psychiatric ailment. However, the primary question for the Tribunal is: are LYHH’s current psychological symptoms/condition contributed to, in a “material degree”, by her employment with the ATO?
The Tribunal notes that there is a lack of consistency by counsel in relation to the causation test applied to LYHH’s current symptoms/condition. The test applied when Comcare accepted liability for LYHH’s injury in 2004 was ‘contributed to in a ‘material degree’ by her employment at the ATO, as per the SRC ACT 1988.
The Tribunal is of the opinion that the material degree causation test ought to be applied in this matter. On this basis, references to the cause of LYHH’s current symptoms/condition, as it relates to her employment, will be interpreted by the Tribunal in the context of the material degree causation test.
The term material is not defined in s 4(1) of the SRC Act 1988, however, the intent of the meaning of ‘material’ was provided for by the Minister for Social Security in the Second Reading Speech of the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 which relevantly states as follows:
It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged. [Emphasis added]
In Comcare v Sahu-Khan (2007) 156 FCR 536 the Federal Court held that the word material in the SRC Act 1988, as it was then, imposed an evaluative threshold below which a causal connection may be disregarded. Finn J observed:
[13] The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of “disease” in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word “material” imposes an “evaluative threshold” below which a causal connection may be disregarded.
…
[15] There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word “materially” in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is—
4. In a material degree; substantially, considerably.”
In assessing the evidence before it, the Tribunal finds the evidence provided by LYHH to be credible. She presented as intelligent, honest and sincere. From the evidence available, LYHH was honest with all of the medical professionals she has seen over the years. This is reflected in the consistency of the medical reports before the Tribunal as they relate to her psychiatric and personal history.
In relation to the medical evidence before it, the Tribunal attaches considerable weight to the evidence provided by Dr Edwards-Smith. Dr Edwards-Smith prepared an objective, detailed overview of LYHH’s complex medical history and did not detract from her main conclusions when examined and cross examined extensively by counsel and the Tribunal. Those conclusions can be summarised as follows:
· LYHH had pre-existing depression and anxiety. At the time she ceased work in 2004, she reported experiencing workplace stressors – particularly related to a distressing altercation with a manager in which she perceived that she was bullied and harassed in a meeting of one and a half hours. It is reasonable to consider that such an interaction in the context of her perception that there had been issues of unfair treatment, and episodes of bullying and harassment for a period of some years, did trigger, at that time, an exacerbation of her pre-existing depression and anxiety.
· LYHH’s ongoing psychiatric conditions are not related to these 2004 events, but to other significant life stressors. This is best evidenced in the following evidence from Dr Edwards-Smith:
In my opinion, one cannot reasonably conclude that she continues to suffer the effects of an employment-related condition, related to the interaction with [Mr B] in 2004, notwithstanding that she has also reported experiencing other episodes throughout the course of her employment. It was indeed the interaction with [Mr B] which precipitated the symptoms associated with incapacity, and which would therefore be considered to be causative to a temporary exacerbation of her pre-existing conditions. In my opinion, there are intervening and indeed subsequent stressors of sufficient magnitude to account for her ongoing psychiatric issues, noting that these have indeed fluctuated since she ceased work, and relate both to her pre-existing personality issues and a pre-existing vulnerability of childhood sexual abuse, and that the pre-existing personality and constitutional issues and childhood abuse would indeed have rendered her vulnerable to the onset of a significant psychiatric disorder in adult life.
The relationship with [Mr A] does seem to have been a somewhat life defining event for [LYHH], and indeed Dr Fitch, in her notes from 15th June, 2015, refers to the discrepancy between her description of emotional response to issues with [Mr A] versus the issues with the ATO, and that [LYHH] consciously attributes her symptoms to work-related events, rather than the more painful, presumably, non-work-related experiences that she has obviously suffered. If I understand correctly, [LYHH] began a relationship with [Mr A] in 1996, and although the relationship ended, I understand that several years later (in the notes of 12th May, 2008, Dr Fitch refers to ongoing contact with [Mr A]), and I understand that the legal dispute was present for many years in addition to the personal stressors related to the breakdown to the relationship with [Mr A] forming a new relationship. [LYHH] was left with the further stressors, I understand, related to the financial adverse sequelae she experienced after the breakdown in the relationship, and subsequent legal issues regarding a financial dispute, and eventual report to the Psychologist’s Board.
Further stressors since ceasing work include a period of treatment for infertility in 2004 and 2005, and miscarriage of pregnancy, intervening medical issues, including obstructive sleep apnoea and iron deficiency anaemia (later corrected). Obviously, also significant secondary gain issues which I consider to be certainly at least unconsciously perpetuating her behaviour in the sick role, which are both financial and also non-financial, with the increased solicitous care provided to her by her husband. Again, these motivational issues, in my opinion, are predominantly unconscious.
There have also, since 2004, obviously been very considerable financial pressures, and periods of interruption to treatment which are quite clearly associated with a further deterioration in her depressive illness.
In my opinion, these pose considerable, indeed compelling elements which have interrupted any causal link between the original workplace incidents and her ongoing psychiatric issues.
In this regard, the Tribunal also places significant weight on the evidence provided by Dr Terace, which largely mirrors the evidence of Dr Edwards-Smith. The Tribunal notes, in particular, Dr Terace’s summary of post-2004 life stressors. The Tribunal notes the comments of Dr Terace in his report of 30 April 2014 that:
Despite [LYHH’s] belief that her present condition originated in the context of her employment related to her claims that she was mistreated by her former employment the distance in time since the onset of her condition, the temporary deterioration related to her psychosocial factors and the cessation of employment and the presence of non-work related factors all support the view that the present psychiatric condition is probably not caused by the original employment factors described but rather than her present mental state is predominantly caused and her psychiatric condition maintained by the following non-work related factors
4.1The process of the Administrative Appeals Tribunal to have her pay re-instated which was eventually successful.
4.2From 2005 she described the most substantial distress being the Comcare process and her perceived compulsion to return to work.
4.3The cessation of her pay between 2006 and 2009 which gave rise to what she described as an enormous financial stress and almost the loss of her house.
4.41-2 years prior to her termination of employment she attended the Administrative Appeals Tribunal but was successful in having her pay re-instated.
4.5Her employment was terminated 16 March 2010 …
4.6Most recently her maternal uncle to whom she was close died in early 2014 about 2 weeks ago and described – “Being sad” – even if not emotionally devastated.
4.7[LYHH’s] decision to cease antidepressant medications in excess of 1 year ago and her insistence of being free of medication for year which was clearly associated with a clinical deterioration with irrational anger, irritability, emotional volatility, weeping, steep impairment and persistently depressed mood.
4.8[LYHH] also suffered the physical symptoms of a Carpel Tunnel Syndrome of the right wrist requiring surgery February 2012 and-
4.9She required a Hysterectomy of August 2012 due to excessive bleeding although her ovaries were left intact and she is not yet menopausal according to recent blood tests.
4.10[LYHH] described her anxieties about the Comcare process and that every 6 months Comcare reduces her pay due to her ComSuper payments, such that she experiences a minor loss overall.
In oral evidence, Dr Terace expanded on these findings, as follows:
[Dr Terace]:If I accept that the events occurred as claimed, then it would be reasonable to argue that there was some contribution from the events of the workplace to the onset of the psychiatric disorder or the aggravation of a pre-existing condition. However, most major depressive disorders do resolve, and there is substantial and overwhelming evidence to support the view that the condition probably would have resolved in the absence of other factors, both constitutional and psychosocial, and with particularly, the Comcare process itself in which – if I may refer to – firstly, Dr Kendall, I would just like to complete my response to Dr Fitch’s very appropriate intervention of my attempt to use my personal interaction as an example.
[Deputy President]: Well, before you go there, it’s an important point that I’m trying to get at.
[Dr Terace]: Okay.
[Deputy President]: Because it’s central to the issue before this tribunal. You’ve just said to me that if we accept that what [LYHH] says happened happened, and then that aggravated a pre-existing condition, the question that flows from that is are you now saying that the current mental state [LYHH] claims to feel or currently have, as diagnosed by her treating psychiatrist, isn’t connected to the events?
[Dr Terace]: Yes, I am.
[Deputy President]: Why is that?
[Dr Terace]:Firstly, let’s assume the diagnosis is major depressive disorder, and let’s ignore the intellectual controversy about the use of the term persistent depressive disorder or dysthymia. I was trying to make the point that both terms could be used, but it doesn’t matter what diagnosis is chosen. But if we accept that the diagnosis is major depressive disorder, most major depressive disorders result – in the US studies 40 per cent begin recovery within three months, 80 per cent within 12 months, and only 5 per cent have recovered within five years. Her previous history showed that her former depressive disorder resolved within one year, and that’s well documented. So the question is as to – there’s always a reason – there are reasons as to why a condition is propagated, a major depressive disorder is propagated.
Dr Terace then continued:
[Dr Terace]:I believed we had this discussion at our last interaction, but I think that it requires a review of the totality of the evidence, which I did not have at that time of the production of this report, such that my opinion has evolved. May I ask, I would argue that the issue of causation is very complex in this case, because of the diversity of factors, the chronicity of factors, consistencies and inconsistencies demonstrated amongst various writers, to which I would need to allude to, which would be a time consuming process. But if I accepted – firstly, I would need to be certain that the events of 8 April occurred. My understating was, from [LYHH] at that time, was that she was threatened with some form of disciplinary action and her performance and/or conduct criticised. She’s saying it was unreasonable and using a number of terms, such as bullying. Whether it was reasonable or unreasonable is not for me to determine. That I consider a matter for this process and for Dr Kendall to determine. But if that event occurred as stated then my position would be in agreement with the opinion of Dr Gemma Edwards-Smith, that, with the totality of the evidence, that it probably a transient contributor and – a transient contributor to either the onset of a psychiatric condition or the aggravation of a pre-existing one, which is a matter which Dr Edwards-Smith reviews, very (indistinct), in detail, in reviewing all the medical evidence, but that given the number of other factors described in the medical documentation that, alone, I could not consider it in the present to have been a substantial cause of a psychiatric disorder and, certainly, any causal link between that event and the present has been broken by a variety of factors and a variety of reasons.
The Tribunal attaches less weight to the evidence provided by Dr Fitch, finding her evidence to be inconsistent and thus problematic. The Tribunal notes, for example, that despite forcefully asserting that LYHH’s current psychiatric condition (with the Tribunal noting a lack of clarity on Dr Fitch’s part in relation to what the current condition actually is), Dr Fitch had sent her client an email that unequivocally supports the conclusions reached by Dr Edwards-Smith and Dr Terace in relation to the causes of that condition today and why it cannot be seen as materially contributed to by her employment with the ATO. That email reads:
[LYHH] … you have suffered abuses in the past. However, what happened with Comcare was an abuse of process rather than direct trauma to you. It was significant for you but it is not anything of the magnitude of the abuse which you directly experienced as a child or with your previous treating psychologist. You have also had many other stressors in the last 7 years eg [LYHH’s husband’s] injury, family conflicts, cultural issues, as well as medical illnesses, eg menorrhagia, OSA etc
All of those things add up together and contribute to your situation but Comcare are not responsible for all of those. Whilst you locate all of the blame with Comcare, it means you cannot improve or change – they have to. Which by nature a bureaucracy can’t do. So you get stuck and feel terrible and blame them but you don’t have to go to the AAT.
Dr Fitch claims that this email represents a therapeutic approach to treatment. She did not suggest, however, that she disagreed with the sentiments expressed – sentiments that clearly support the conclusions drawn by Drs Edwards-Smith and Terace and which go to the heart of the issue before this Tribunal: whether LYHH’s current mental health condition can be seen to be materially contributed to by her previous employment with the AAT. Dr Fitch’s evidence here completely contradicts her written medical reports and oral evidence.
In the circumstances, the Tribunal prefers the medical evidence of Dr Edwards-Smith and Dr Terace.
Overall, on the evidence, if the Tribunal finds LYHH continues to suffer from a condition that is “outside the boundaries of normal mental functioning and behaviour”, the Tribunal must consider if LYHH’s current condition is one that continues to be contributed to, to a material degree, by LYHH’s employment with the ATO. If so, then LYHH suffers an injury under s 4(1) of the SRC Act 1988 because she suffered a disease, being an aggravation of an ailment as defined in s 4(1) of the SRC Act 1988. It is only if the Tribunal finds as a matter of fact that the material contribution from employment remains that it is required to go on to find whether liability for incapacity also remains.
Alternatively, if the Tribunal finds that the effects of the injury suffered by LYHH, as a result of the incident which took place at the ATO on 8 April 2004, have ceased or have been successfully treated and can no longer be said to be continuing, or have effectively been superseded by some other incident and is therefore no longer effectively materially contributing to LYHH’s current condition, then Comcare will not be liable for compensation under s 19 of the SRC Act.
Comcare claims, in its submissions dated 20 June 2017, that LYHH’s ailment is no longer contributed to, to a significant degree by her employment with the ATO. It follows, Comcare says, that it is no longer liable under s 19 of the SRC Act because:
a)LYHH’s current psychological symptoms/condition are not [materially contributed to by] the compensable injury: nor the results of the compensable injury; but rather, that the compensable injury had resolved at some point after LYHH ceased working on 13 April 2004, and in any event, by 5 January 2015; and
b)any symptoms/condition, attributed by LYHH to the compensable injury had ceased by 5 January 2015, and are not causally related [to a material degree] to her former employment.
In assessing these claims, the Trubunal notes the decision in Re Prain and Comcare (Compensation) [2016] AATA 459 in which Deputy President Humphries accepted that non-employment related factors can amount to a novus actus interveniens, having the effect of ‘pushing the employment factor further and further into the back ground’ (see [44] and [70]).
The Tribunal also notes the decision in Re de Leon and Comcare (Compensation) [2017] AATA 563, in which Senior Member Stefaniak found:
[320] After considering all the evidence, the Tribunal accepts that the applicant has had a number of stressors in her life including the problems at the ATO which were accepted in 2009 as an aggravation of a major depressive disorder. The Tribunal prefers the evidence of Dr Hong and Dr Synnott and finds that the episode at the ATO effectively ceased, most likely sometime around 2010 or thereabouts, and that the other traumatic events took over as major current stressors after that time.
[321] The Tribunal would include in those major current stressors, the stress caused to her by her mother, the stress in relation to her financial situation and the problems she had in relation to her financial dealings.
[322] The Tribunal accepts that each traumatic event in her life, including the ATO incident, remains part of her psyche, but for all intents and purposes, the aggravation of the major depressive disorder that occurred at the ATO in 2004- 2005 which was, to an extent, reactivated by attempts to get her back to work in 2006-2007, had ceased to be an issue, certainly by 2010 to 2013, and had been replaced by other more recent stresses.
In his submissions in reply, dated 27 June 2017, Counsel for LYHH contended that, while there could be a “novus actus interveniens”, the most reliable witness in relation to whether this phenomenon is present in LYHH’s life is Dr Fitch. Accordingly, it was suggested, more weight should be given to her evidence.
For the reasons outlined above in relation to the medical evidence before it, the Tribunal disagrees. The evidence provided by Dr Edwards-Smith and Dr Fitch is to be preferred. The evidence of Dr Fitch, in these circumstances, is inconsistent and thus less reliable overall.
Overall, the Tribunal finds that:
a)LYHH’s traumatic past, including a history of sexual abuse, created a pre-existing vulnerability to Major Depressive Disorder;
b)the 2004 events at the ATO triggered this pre-existing vulnerability, resulting in a Major Depressive Disorder;
c)most Major Depressive disorders go into remission unless they are propagated by other factors;
d)LYHH suffered from numerous stressors in her life post 2004, including a traumatic and inexcusable manipulation at the hands of her then treating psychologist. This event and other subsequent stressors are of sufficient magnitude to account for LYHH’s ongoing psychiatric issues;
e)these stressors have interrupted any causal link between the original workplace incidents and LYHH’s ongoing psychiatric issues;
f)each of the factors, or at least most of them, which the medical records suggest occurred after April 2004, are novus actus interveniens and break the chain of causation;
g)all of the novus actus interveniens occurred after 13 April 2004 and prior to 5 January 2015;
h)taking the evidence as a whole, the Tribunal regards LYHH’s employment with the ATO as having ceased to be a material contributor to LYHH’s current psychological symptoms/condition by 5 January 2015.
CONCLUSION
Having regard to the evidence before it, and to the above discussion, the Tribunal concludes that Comcare is not liable to pay compensation for incapacity to LYHH under the provisions of the SRC Act as claimed.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 81 (eighty–one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall.
...................[sgd].......................
Administrative Assistant – Legal
Dated: 28 September 2017
Dates of hearing: 10 and 11 November 2016 and 26 May 2017 Date final submissions received: 27 June 2017 Counsel for the Applicant: Mr D Bruns Representative of the Applicant: Kate Dempster Solicitors for the Applicant: Dwyer Durack Counsel for the Respondent: Mr J Wallace Representative of the Respondent: Ms T Ling Solicitors for the Respondent:
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Appeal
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Remedies
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Expert Evidence
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Procedural Fairness
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