Lynch and Comcare
[2003] AATA 1243
•10 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1243
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/92
GENERAL ADMINISTRATIVE DIVISION )
Re ANOLIA JASMYN LYNCH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date10 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – liability – depressive disorder – effects of compensable arm condition – effects of circumstances in the workplace - whether material contribution to development of depression – no causal connection found - decision affirmed
Safety, Rehabilitation and Compensation Act 1988, s 4 and s 14
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Wiegand v Comcare (2002) 72 ALD 795REASONS FOR DECISION
10 December 2003 Mr RG Kenny, Member Background
1. On 5 November 1999, Comcare (the respondent) accepted that it was liable to pay compensation, under the Safety, Rehabilitation and Compensation Act 1988 (the Act), for an injury to Anolia Jasmyn Lynch (the applicant) namely sprain of elbow and forearm (right) and hand sprain (right). The applicant then made a claim for depression to be accepted as a work-related condition under the Act on the basis that it developed because of the effects of her accepted right arm conditions. On 3 August 2001, that claim was rejected and, in the determination, the respondent foreshadowed that there was a prospect that it would cease liability for the accepted conditions. On 14 December 2001, the determination in relation to depression was affirmed and the respondent noted that liability for the accepted disabilities was ongoing. On 29 January 2002, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal) of the reviewable decision in relation to depression.
Hearing
2. At the hearing, Ms B Carter-Nicoll of Counsel appeared for the applicant and Ms E Ford of Counsel represented the respondent. A statement prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 was taken into evidence as Exhibit 1 (the “T” Documents: T1 to T157). In addition, the following documents were also taken into evidence:
Exhibit 2 a statement, dated 16 May 2002, by the applicant;
Exhibit 3a medical report, dated 2 September 2002, from Dr Ian Colls, Consultant Psychiatrist;
Exhibit 4a further medical report, dated 30 January 2003, from Dr Colls;
Exhibit 5a medical report, dated 9 March 2003, from Dr Garth Eaton, Occupational Physician;
Exhibit 6a medical report, dated 7 November 2002, from Dr Andrew Byth, Psychiatrist;
Exhibit 7a further medical report, dated 18 December 2002, from Dr Byth;
Exhibit 8a medical report, dated 3 April 2003, from Dr John Cameron, Consultant Neurologist;
Exhibit 9a letter, dated 19 July 2000 by the applicant;
Exhibit 10an e-mail, dated 29 August 2001, sent by the applicant;
Exhibit 11a letter, dated 3 July 2001, sent by Patrice (counsellor);
Exhibit 12clinical notes for the period from April 1998 until January 2001 from Access Counselling;
Exhibit 13a medical report, dated 18 December 2002, from Dr Vivian Edwards, Neuro Physician;
Exhibit 14clinical notes, dated 5 December 2000, from Access Counselling;
Exhibit 15an e-mail, dated 28 March 2001, from Ian Creswell;
Exhibit 16a rehabilitation progress report, dated 30 May 2001; and
Exhibit 17a quotation order form, dated 6 November 2003.
3. The issues for the Tribunal to determine are whether the applicant suffers from depression as an injury or disease, whether any such condition arose out of or was contributed to in a material degree by the applicant’s employment with Environment Australia and, if so, whether the applicant suffers from any incapacity to work or any impairment as a result of any such condition. Relevant to the determination of those issues are the following provisions of the Act:
“4. Interpretation
(1) In this Act, unless the contrary intention appears:
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘disease’ means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such 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.
‘injury’ means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
14. Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Applicant’s Case
4. Ms Carter-Nicoll submitted that the applicant had begun to suffer from the disease of depression in October 2000 and that there had been material contribution to this condition by the circumstances of her employment with Environment Australia and also by her arm condition which had been accepted for compensation purposes by the respondent.
5. In relation to the diagnosis of the condition, Ms Carter-Nicoll relied upon the evidence of psychiatrists Dr Hughson and, in particular, Dr Colls who had treated the applicant and seen her some 12 to 15 times. She referred to the evidence of psychiatrist Dr Andrew Byth, and submitted that this supported a relationship between the applicant’s psychiatric condition and her accepted disability. Also, she submitted that the causal relationship between the applicant’s depression and various aspects of her workplace circumstances as well as her arm condition was confirmed by the evidence of Dr Hughson and Dr Colls. In addition, she referred to the report of Consultant Rheumatologist, Dr Kenneth Muirden, and his opinion that the applicant’s right arm condition was better described as a regional pain syndrome and that there was no contribution to the development of this from the applicant’s study leave activities.
Respondent’s Case
6. Miss Ford conceded that the respondent had accepted liability for the applicant’s right arm condition and she submitted that the issue was whether or not that condition or the applicant’s workplace circumstances made a material contribution to the development of any psychiatric state from which the applicant may have suffered.
7. Ms Ford submitted that there were many inconsistencies in the applicant’s evidence such that preference should be given to evidence which was in contradiction to that of the applicant. She submitted that the effects of the applicant’s arm condition in the period leading up to the diagnosis of depression in October 2000 were relatively mild as indicated by a wide range of activities that she was able to undertake involving the use of her arm and that there was no causal association between the arm condition and depression.
8. Ms Ford also submitted that, prior to the diagnosis of depression being made in October, the applicant had only returned to the workforce with Environment Australia for a short time and had been involved in a limited range of duties and that, during that period, any triggering mechanisms which related to the onset of depression were associated with aspects of her private life and an inability to make satisfactory progress with her studies rather than any aspect of her employment activities.
Consideration
9. It is not disputed in this case that the applicant has an accepted liability under the Act in relation to her right arm, described as “sprain of elbow and forearm (right) and right hand sprain”.
10. The evidence in relation to the applicant’s employment shows that she worked for Environment Australia from October 1995 until she was offered a voluntary redundancy in October 2001. She worked with the Forest Task Force until 30 June 1999 where she was able to utilise her skill and training as an ecologist in aspects of environmental biodiversity. She took recreational leave from 1 June 1999 and travelled to Tasmania where she enrolled in a Doctor of Philosophy Degree at the University of Tasmania in Hobart on 2 June 1999. She returned to work on 21 June 1999 and was transferred, on 30 June 1999, from the Forest Task Force to the Water Resources Section of the Biodiversity Group. This was a temporary position and, on 21 July 1999, she commenced a 12 month period of study leave without pay in relation to her PhD program.
11. The applicant’s accepted right arm condition manifested itself in early July 1999. This was after her period of three weeks leave in Tasmania, within days of her being transferred to the Water Resources Section of the Biodiversity Group and shortly before commencing her 12 months leave without pay. She attempted to get an extension of time for her leave but this was refused and she returned to full-time work on 4 September 2000. She had a period of sick leave from 8 September 2000 until 15 September 2000 and continued to attend work until she had a panic attack on 24 October 2000, was diagnosed with depression and was provided with medical certificates for leave from work almost continuously until mid-December. She had commenced a gradual return to work program from November 2000 onwards starting with four hours per day for three days a week and then gradually increasing her work hours in 2001. She has not undertaken work with the respondent since May 2001 and took a voluntary redundancy in October 2001.
12. In relation to the diagnosis of the applicant’s psychiatric condition, there is medical evidence that the applicant has not suffered from depressive disorder. A medical report was prepared by Consultant Psychiatrist, Dr June Donsworth, on 12 June 2001 (T36). She described the applicant as being “angry, resentful, disgruntled and frustrated as a result of difficulties and experiences in the workplace and in her personal life”. Dr Donsworth concluded that this did not constitute sufficient to comprise a psychiatric diagnosis although she expressed the opinion that the applicant suffered from inherent personality problems. Also, Psychiatrist Dr Byth, who gave oral evidence, was of the opinion that the applicant did not suffer from depression but, rather, from adjustment disorder with depressive mood and personality disorder. Dr Byth, who saw the applicant on one occasion, did not exclude depressive disorder and included depressed mood as part of his adjustment disorder diagnosis and he also stated in his report that he doubted that her depression had been severe enough to qualify for the diagnosis of major depression (Exhibit 6).
13. Despite that evidence, I am satisfied that the applicant has suffered from a major depressive disorder. In making that finding, I have relied on the reports of Dr Hughson (T 127) and Dr Colls (Exhibits 3 and 4). Dr Hughson referred to the DSM-IV classification criteria and said that these were met and that the condition had its onset around September 2000. Dr Colls saw the applicant on 12 to 15 occasions and also relied upon satisfaction of the DSM-IV criteria to provide a diagnosis of major depressive disorder.
14. The issue for determination in this matter is whether the effects of the applicant’s accepted right arm condition or of the circumstances present in the workplace were causally associated with the applicant’s depression. I accept that the effects upon the applicant of her arm condition or of stressful aspects of workplace activities where, in either case, these have made a material contribution, as that term is explained below, to the onset of a condition can be responsible for the subsequent development of depression for the purposes of section 14 of the Act. As to the nature of the contribution which is required, Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 said at 641:
“I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of ‘the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.”
15. In Wiegand v Comcare (2002) 72 ALD 795, von Doussa J said (at 796):
“All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a ‘reality’ test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.”
16. His Honour continued (at 797):
“In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
17. In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, the Federal Court also referred to the degree of contribution required and said (at 328):
“The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
18. The requisite causal association between depression and either the applicant’s arm condition or her employment will need to found in circumstances which were in place prior to the onset of the condition. I am satisfied that this was in October 2000 when depression was diagnosed by her general practitioner. At that time, she was prescribed the anti-depressant Serzone and she also commenced weekly counselling. The medication was changed to Efexor and then, after seeing Dr Colls in 2002, to Lovan.
19. The presence of a disability in the applicant’s right arm has been noted in various medical reports though differing diagnostic terminologies have been used. In his report of 25 October 1999, Dr David Barton, Consultant Occupational Physician, referred to the condition as “muscular strain” (T18); in his report prepared after seeing the applicant on 23 August 2000, Dr Leon Le Leu, Occupational Physician, described it as a “strain” (T35); in his report dated 18 May 2001, Dr Kenneth Muirden, Consultant Rheumatologist, described it as “regional pain syndrome” (T81); and, in his report dated 9 March 2003, Dr Garth Eaton, Occupational Physician, referred to it as “an occupational overuse injury” (Exhibit 5).
20. The applicant was also seen by Dr John Cameron, Consultant Neurologist, who prepared a report on 3 April 2003 (Exhibit 8). He also gave evidence at the hearing. Dr Cameron disputed the usefulness of terms such as “occupational overuse syndrome”, “regional pain syndrome” or “repetitive strain injury” on the bases that they did not represent precise diagnoses and that they masked the need to further investigate the underlying cause of any complaint of pain or discomfort that a person may have. He said that, in the applicant’s case, he had been unable to find any underlying neurological cause or any other physiological disturbance in her right arm to account for any of her ongoing complaints. Dr Cameron conceded that she had complained of pain and that she would have suffered from some muscular discomfort over the extensor compartment of the right forearm in July 1999 when she first reported her condition and said that this was associated with her computer keyboard usage. He said that the condition would have produced only a mild level of discomfort for a short period which would have resolved without residual impairment.
21. The applicant, when asked about the causes of her depression, identified the sustained effects of her arm pain and her frustration relating to circumstances in the workplace. She also identified her inability to maintain satisfactory progress with the PhD programme and matters in her personal life including the cessation of the relationship that had ended immediately before her panic attack on 24 October 2000. The reports of Dr Hughson and Dr Colls are supportive of her in that regard. Dr Hughson referred to difficulties associated with chronic pain, the feeling of rejection by the applicant in the workplace and also factors in her personal life as being of significance in its development of depression. He described a “clear history of such stresses in the twelve months preceding the onset of depression” in the applicant’s case (T127). In his report, Dr Colls referred to the applicant’s depression as arising at the time of her “physical symptoms and the associated bureaucratic process” (Exhibit 3).
22. The applicant has not been entirely consistent in the accounts that she has given at various times in relation to a variety of matters. In relation to the progress with her PhD studies, she said in evidence that she has been unable to maintain satisfactory progress because of her arm problems. She said that this caused significant difficulties for her in being able to meet deadlines. In a letter, dated 19 July 2000 (Exhibit 9), the applicant sought an extension from her employer of her study leave and, therein, made no reference to her arm problems and declared that her study was “progressing satisfactorily”.. In her evidence, she said that this had not been a true statement. Also, the Report on Annual Review of Progress completed on 31 August 2000 on behalf of the University of Tasmania declared:
“Progress has been generally satisfactory, but the following matters have required attention – some RSI difficulties in 2000 – appears to be under control.”
23. In relation to the nature of her activities during her study leave, the applicant is recorded in Dr Byth’s report as having stated that her study was “all computer based” (Exhibit 6). However, in a letter written by her on 8 February 2001, she said:
“During my study leave, I was working full time on my research. Much of the year was spent reading, making notes, attending conferences and workshops, writing scientific papers and building a database on the species I was investigating. Time spent on each activity varied but usually less than half a day at a time would be spent on any one of these.”
24. While I am satisfied that the applicant was involved in utilising the keyboard of the computer during the period of her study leave, I am also satisfied that she was involved in many tasks that did not require her to do this. The applicant’s evidence was that the pain in her arm largely settled when she was not using the computer keyboard. Shortly before she returned to the workforce on 4 September 2000, she saw Dr Le Leu in August 2000 and he reported that she was largely free of pain at that time although he noted that the applicant told him that pain was easily stirred up by the use of the computer (T35).
25. There were also inconsistencies in the applicant’s evidence in respect of events in 2001. She has not undertaken employment with the respondent since May 2001 and took a voluntary redundancy in October 2001. In cross-examination, it was put to her that she had sought a redundancy arrangement from the respondent because she had, at that time, already made up her mind to leave the Australian Capital Territory and move to Queensland to live close to her family. The applicant denied that this was the case but her evidence was not convincing in that regard. She agreed she had visited her parents in June 2001 and had done so by driving from the ACT to where they lived in Laidley, Queensland, and where she stayed for approximately three weeks. Initially, in her evidence, the applicant said that she could not recall whether she had enquired into the prospects of purchasing a house in the Laidley area whilst she was in Queensland and she maintained that she was not sure whether she had signed a contract while she was in Queensland. However, she conceded that she did sign a contract which was subject to the sale of her property in Canberra and that she ultimately purchased a house in Laidley, the sale of which was settled in late 2001, in either October or November. She denied that she had made up her mind to sell her property as early as July 2001.
26. In a counsellor’s note, dated 5 December 2000 (Exhibit 14), reference is made to discussion about the applicant moving to Brisbane, where it was warmer and where she could be closer to her parents and perhaps obtain a research position in Queensland. In another counsellor’s report, dated 3 July 2001 (Exhibit 11), the following appears:
“You seemed to have really great feelings about the house you have put in to buy in Queensland. You said, ‘it feels really nice … I will own it outright … That will mean there are opportunities to write and make choices about how I spend time … liberating … gives me more freedom than if I stayed here … I could possibly be a parent’.. I got a real sense that this move would mean much more than choices for work and study and family – but about the way you want to choose to live your life.”
27. The report also reads:
“You said that it was OK if it (house purchase) falls through because there would still be enough time to organise it again.”
28. In her evidence, the applicant said that she had transferred her PhD Scholarship from the University of Tasmania to the University of Queensland. In cross-examination, she conceded that she had made enquiries about this when she was in Queensland in June 2001.
29. I am satisfied that, consistent with the submission of Miss Ford, the applicant did have clear plans to move to Queensland before the redundancy arrangements were settled in October 2001 and had begun, before then, to put these into execution by entering into negotiations to sell her house in Canberra, to purchase a house in Laidley and to transfer her PhD supervision to the University of Queensland.
30. There is also evidence before the Tribunal which shows that the applicant was undertaking activities which involved the use of her right arm to a significant degree. In his report, Dr Muirden described the applicant’s activities as including running, swimming, playing badminton and fiction writing (T81). In a counsellor’s note, dated 5 December 2000 (Exhibit 14), the applicant is referred to as having said that she “missed badminton this week” and as stating that badminton was finishing, for the year, in the following week. The applicant conceded that she had been playing badminton although not to the extent that she had in the past. Dr Cameron, in his evidence, expressed the opinion that, if the applicant were able to play badminton, this would confirm his view that any arm condition that she suffered from would have been relatively mild.
31. In relation to the onset of her depression, the applicant recalled that she had a panic attack on 24 October 2000. She had been at her home on her own and doing housework when she felt “overwhelmed”.. She said that she was unable to stay in her house by herself so she went to a friend’s home, attended her general practitioner who diagnosed her with depression, sent her for counselling and provided her with medical certificates for leave from work. She saw a counsellor with Access and the associated clinical notes, dated 24 October 2000, record that she advised the counsellor that she had ended a relationship and that this was the trigger for hitting “rock bottom” (Exhibit 12). Dr Donsworth also asked the applicant what had triggered the panic attack in October 2000 and the response was recorded as indicating that a man with whom she had been involved with for some eight weeks had developed another relationship and she said that this “tipped her over the edge” (T86). In the Access notes, the applicant also referred to a range of other matters that were affecting her on that day. These included her feeling that no relationships had ever worked for her, her questioning her PhD studies because these had “stalled”, her concern that there were no redundancy packages available at her work, her having to go back to work and to her feeling that she had “failed at everything”.. She also is noted to have said that she had started writing a novel but had switched to short stories, that she had given these to her father to read and that this had improved their relationship.
32. In a further clinical note completed by Access on 31 October 2000, the applicant is recorded as indicating that she had had a relationship break-up eight or nine years previously and she recalled “feeling this bad” at that time (Exhibit 14). She also indicated that she had been pregnant at that time and that the pregnancy had been terminated. In her evidence, the applicant agreed that she had experienced problems in her personal life in 1992 when she had a relationship break-up and had been pregnant. However, she said that, whilst feeling depressed about that, she had never been for treatment, had not had any diagnoses made, had not required time off work, had managed to continue with her Masters degree studies that she was undertaking at the time and was able to move on from those problems without any ill-effects. Dr Byth was of the opinion that the applicant had suffered depression since 1998 and that she may have had a milder episode of depression in 1992. I have also noted the counselling notes (Exhibit 12), dated 22 April 1998, which described the applicant as having a “dysfunctional family”, to feeling lonely and to having “periods of depression”.. In that regard, I note that Dr Le Leu, in his report which was completed prior to the applicant’s panic attack in October 2000, recorded that the applicant stated to him that she had previously taken anti-depressants in the form of Prothiaden (T35).
33. In cross-examination, the applicant was referred to a note by a counsellor at Access to the effects of waving a magic wand and to her failure to volunteer that she would like to be rid of her right arm problem (Exhibit 14). The applicant said that, at that time, other matters were on her mind such as her studies and her failed relationships, that she was depressed and that these matters were probably having a bigger effect at that time than her arm pain.
34. In relation to the period of work after completing her study leave, the applicant’s evidence was that she suffered from stress at work because she had been placed in a temporary position where her skill and training could not be properly utilised. She said that she was also on a restricted range of duties because of the effects of her arm condition and was required to limit the extent to which she was able to use a computer keyboard and she said that she was really only working for two out of the five days in the week, mainly on basic clerical work. She also said that she felt frustration because she had needed to use a voice-activated system rather than a keyboard and that, although such a facility had been supplied by Environment Australia, it was not one with sufficient sophistication to enable her to carry out the data-based work she needed to do for her PhD. Rather, it was a type which was suitable only for word-processing functions. She said that the people she was working with were not interested in retaining her and that she was asked to resign on three occasions. In Dr Donsworth’s report, she is recorded as describing the group that she worked with at that time as a “cosy team” whose activities did not interest her and who tended not to treat her as a member of the team (T86). She said that she was typing up some of her own fiction writing because she had nothing to do and was doing this to assist in training the voice-activated computer software.
35. There was some use of the computer by the applicant after her return to work and it was the opinion of Dr Hughson and of Dr Colls that the continuing effects of the accepted disability and the long duration of that had a role to play in the development of depressive disorder. However, excluding an absence on sick leave, the applicant worked for only some six weeks in that period and, on her evidence, only worked for two days in each week with much of that time being associated with clerical duties and the use of a voice-activated computer program. She also stated that she was involved in the development of fiction writing for some of the time. I am satisfied that only a minor degree of keyboard operation was undertaken by the applicant, in association with her employment, after she returned to work on 4 September 2000. Indeed, I am satisfied that this was the case from 21 July 1999 when she commenced her unpaid study leave. For most of that time, she was involved in tasks associated with her full-time PhD studies rather than in her employment.
36. The applicant’s evidence was outlined to Dr Colls who said that any report that he produced was only as good as the historical basis on which it was prepared. In cross-examination, Dr Colls was asked to assume that the applicant had experienced relationship difficulties in the past, had experienced inter-personal difficulties in the workforce and with her family, that she had experienced circumstances in 1992 which she described to a counsellor as making her feel as bad as she did in 2000 after her panic attack, that she had seen a counsellor in 1998 on several occasions and reported herself to be feeling depressed at the time and that she had experienced a relationship breakdown at the time of her panic attack declaring to a counsellor that this was the trigger which tipped her over the edge. In that situation, Dr Colls said that this indicated to him that these personal factors were significant in the development of the applicant’s depression. Dr Colls also said that an absence of reference to her arm condition in the context of how she would feel if a magic wand were waved in relation to her difficulties and a failure to refer to this at the time of the onset of depression would mean that it was possible that her arm condition and work-associated concerns were not operative in relation to the development of a depressive mood. He said that it was probable that other stressors were significant and that any one of them could have been the final trigger.
37. In his report, Dr Hughson described a “clear history of stresses” in the twelve months preceding the onset of depression in the applicant’s case (T127). However, for most of that time the applicant was on study leave and I am satisfied that, in the short period that she was back in employment, arrangements were in place to enable her to reduce her overall workload and to alter her keyboard operations by the operation of a voice-activated system. The applicant was critical of the quality of this system in that it was unsuited to data-base work. Nevertheless, this alternative to keyboard usage was provided and, in 2001, a more sophisticated version was ordered by the respondent (see Exhibit 16). However, by then, the applicant had ceased attendance at work.
38. In his report, Dr Byth referred to several factors which may have been causally associated with the applicant’s psychiatric condition. These included the effects of her personality disorder, relationship breakdown, study concerns, financial problems as well as workplace conflict and her arm pain. In oral evidence, Dr Byth was also asked to assume a different history from that with which he was provided. In particular, this was one which, at the time of the onset of depression, was characterised by an absence of reference to problems associated with the applicant’s arm problems and circumstances in the workplace. Dr Byth’s opinion was that this meant that these would not have been significant factors in the development of her depression.
39. In this case, there were several factors which contributed to the development of the applicant’s depressive disorder. If an employment-related element is included as a causative factor, even a small contribution will be sufficient to constitute a material contribution: see Treloar v Australian Telecommunications Commission (above). However, that is only the case “once the link is established”. In this case, I am satisfied that, as the applicant indicated to her counsellor at the time, the triggering events for the development of her depression were the personal circumstances she found herself in on the day of her panic attack. These included her relationship breakdown and a sense of frustration about her study. As to the former, I am satisfied that this bore no relationship to her employment. As to the latter, it is not an uncommon phenomenon for persons engaged in research-based degree programs, such as the PhD, to experience delays. The reference to the applicant’s hand conditions as being “under control” in documents prepared before the onset of her depression in October 2000 and her own reference to her progress in July 2000 leave me satisfied that, if there was a failure to achieve thesis goals, this was not related to her accepted disability.
40. I am satisfied that there was no material contribution to the development of the applicant’s depression from her hand condition, for which the respondent has accepted liability, or her employment for the purposes of section 14 of the Act.
Decision
41. The Tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .......................................................................................
AssociateDates of Hearing 4 to 6 November 2003
Date of Decision 10 December 2003
Counsel for the Applicant Ms B Carter-Nicol
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Miss E Ford
Solicitor for the Respondent Phillips Fox
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