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…
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- LYHH and Comcare (Compensation) [2017] AATA 1586
- Case
- [2017] AATA 1586
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Tribunal was whether LYHH continued to suffer an incapacity for work that was compensable by Comcare under the SRC Act, given Comcare's determination that her condition had resolved. This required the Tribunal to consider whether the events of 13 April 2004, or any subsequent factors, constituted a material contribution to a continuing incapacity, or if there had been a *novus actus interveniens* that broke the chain of causation. The Tribunal also had to assess the weight of conflicting medical evidence regarding the diagnosis, causation, and ongoing impact of LYHH's psychiatric condition.
The Tribunal's reasoning focused on the complex interplay of factors contributing to LYHH's condition and her ongoing incapacity. It considered the evidence from treating practitioners, including Dr Fitch, who maintained LYHH suffered from an enduring major depressive disorder, and independent medical examiner Dr Terace. Dr Terace expressed reservations about the certainty of causation for the initial condition, highlighting a diversity of factors, including personal stressors, medical procedures, and the Comcare process itself, which he believed had broken any causal link to the 2004 incident. He also raised concerns about the potential influence of the therapeutic relationship on Dr Fitch's opinions. The Tribunal noted that Dr Terace’s evolving opinion, informed by a review of the totality of the evidence, suggested that while the 2004 event might have been a transient contributor, it was unlikely to be the substantial cause of a present psychiatric disorder, especially given numerous other factors.
Ultimately, the Tribunal concluded that, having regard to all the evidence, Comcare was not liable to pay compensation for incapacity to LYHH under the SRC Act. The decision under review, which affirmed Comcare's denial of liability for compensation for incapacity for work, was therefore affirmed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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