MARIA PAPA LOPEZ and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 616
•29 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 616
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5159
GENERAL ADMINISTRATIVE DIVISION ) Re MARIA PAPA LOPEZ Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen Date29 July 2009
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing of this matter on 29 July 2009, the Tribunal decides:
1. The decision under review is set aside and this matter is remitted to the Respondent with the Direction that the Applicant is entitled to compensation for an Adjustment Disorder with anxious and depressed mood from 4 June 2007 until 27 June 2007.
2. The Respondent is to pay the Applicant's costs unless 14 days from today's date a Notice of Contention is filed with the Tribunal.
...................[sgd] ...........................
M D Allen
Senior Member
CATCHWORDS
WORKERS COMPENSATION: Whether Applicant suffered from a post traumatic stress disorder - Assaulted at work - Incident did not fulfil relevant diagnostic criteria – Leave taken prior to incident as a result of stress due to proposed shift changes – Whether failure to obtain benefit materially contributed to claimed injury - Medical opinion indicated Applicant suffered from Adjustment Disorder with anxious and depressed mood – decision under review set aside.
CASE LAW
Hart v Comcare (2005) 87 ALD 341
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988: s 14, 5A
REASONS FOR DECISION
29 July 2009 Senior Member M D Allen 1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.
I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: ........................[sgd]........................................................
M. Corcoran, AssociateDates of Hearing 27 & 28 July 2009
Date of Decision 29 July 2009
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Slater and Gordon
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Graham Jones Lawyers
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
MR ALLEN: By application made 24 October 2007, the Applicant sought review of a reviewable decision made 28 August 2007, affirming a prior determination that the Respondent was not liable, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), for the Applicant’s claimed condition of post-traumatic stress disorder (“PTSD”). The events giving rise to the claim are, in general, not disputed but some of the detail, as recounted by the Applicant, has varied over time. I do not think that anything turns on this.
To the Tribunal, the Applicant said that on 31 May 2007 she was at the Sydney City Post Shop and was taking mail from level six to level four. She got into a lift, and as the lift door opened there was a man sitting on a chair. This in itself was unusual. She walked into the lift and the man told her to sit down. She said, “No, thank you” but he insisted and kept raising his voice, telling her to sit down. He then grabbed her by the arms and made her sit down. This stressed her, as she was on her own with this person.
When the lift reached the sixth floor, she stood up and grabbed the trolley containing the mail in order to get out of the lift. As she got up, the man grabbed her with both hands around the waist. She said:
“I remember the expression on his face. I remember his eyes. They were glassy and he was biting his lips.”
He grabbed her really very strongly. As soon as the door opened, she was able to push the trolley forward to keep the doors open, and then they closed behind her with the man still in the lift.
Immediately after this assault, the Applicant went to the room where she had to take the mail. She saw another person dressed in the same clothing as the man in the lift, made some inquiries of him, then went back to her place of work and informed her manager of what had happened. There are reports on the file as to what happened next; suffice it to say that an employee at the MLC Centre, aged about 16 years, was dismissed from his employment. The Applicant returned to work the next day, namely 1 June 2007, a Friday, but requested and obtained someone to accompany her when she used the lifts.
On the next Monday, 4 June 2007, the Applicant, whilst waiting for a train to convey her to the city, began to feel scared at the thought of attending her workplace. She therefore consulted her general practitioner, who issued a WorkCover certificate, stating that the Applicant was suffering from PTSD. She remained absent from work until 6 June 2007. A further certificate was issued by the Applicant’s general practitioner, dated 8 June 2007, certifying that she was unfit for work until 15 June 2007. On 15 June 2007 she attended an Australia Post facility medical practitioner, a Dr Pope.
Two medical certificates apparently issued from that medical practitioner, one stating that the Applicant was unfit for all work until 24 June 2007; the other stated that the Applicant was fit for work from 15 June 2007 with no restrictions. Various other absences from work then occurred, and on 25 June 2007 the applicant returned to work briefly, but felt she could not cope, so departed within 10 minutes of starting work. At that time she gave to her manager a report from clinical psychologist Ms Feldman.
The file note regarding the applicant’s return to work, dated 27 June 2007, reads inter alia:
“I have just finished meeting with Maria. She does not think that she can return to work and does not agree with Dr Pope’s assessment of her fitness for work. She would not sign the return to work plan. At this stage she is saying that she is too afraid to leave her home, and only attended the appointment because a friend drove her. She has been referred to a psychiatrist by her GP and is waiting for an appointment. I also spoke to Dr Pope today, who clarified that he thought she was fit for suitable duties, as long as she did not need to use the goods lift.”
The Applicant was transferred on a temporary basis to the Fairfield Post Office. She said in evidence that even at Fairfield Post Office, which was close to where she was living, she was unable to complete her shifts as she was having panic attacks. Cross-examined regarding the reason for her panic attacks, she said that even being at Australia Post reminded her of the incident, even though at a different place of work. The Applicant said that she worked at the Fairfield Post Office for approximately one month, then left and has not worked since. She said that she did not feel save to ever again work for Australia Post, adding:
“I would not go back to work for them again, as I was not supported by them and I would not feel safe.”
Currently the Applicant claims that her life as an independent person has changed. She does make an effort to go out, and she and her now husband, who she married in September 2008, go to the beach and to RSL clubs. She prefers to shop where there are people around and no longer goes out for coffee or to a picture theatre on her own. Currently she takes the antidepressant Avanza when required. This drug is prescribed by her treating psychiatrist, Dr Menendez. Having attended her general practitioner on 4 June 2007, that medical practitioner made a diagnosis of PTSD. No reasons have been given for this diagnosis, and as pointed out by psychologist Ms Feldman in her report of 21 June 2007:
“However, PTSD cannot be diagnosed unless symptoms last at least one month, cause significant distress or interfere with work or home life.”
On this basis, the diagnosis of PTSD by the Applicant’s general practitioner was premature. Ms Feldman also contradicts herself in her report of 21 June 2007. Despite stating that the Applicant was suffering from PTSD, as diagnosed in the DSM-IV, she then states the passage quoted above, which negates her diagnosis. Further, as pointed out by Dr Canaris, psychiatrist, in his report of 28 April 2008:
“The DSM-IV requires, as a causative factor for a diagnosis of post-traumatic stress disorder, that the patient has been exposed to a traumatic event in which both of the following were present:
(1) The person experienced, witnesses or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(2) The person’s response involved intense fear, helplessness or horror.”
I do not consider that the incident of 31 May 2007 fulfilled these diagnostic criteria, either as to (1) or as to the Applicant’s response as required by (2). Drs Canaris and Champion are of a similar opinion. Dr Menendez is the Applicant’s treating psychiatrist. He has diagnosed a PTSD, but in the reports written by him, he does not discuss the diagnostic criteria which led him to this diagnosis, nor does he discuss any differential diagnoses.
So far as a diagnosis of the applicant’s condition is concerned, I am more convinced by the opinions of Drs Canaris and Champion, who have had regard to the diagnostic criteria for not only PTSD, but other anxiety disorders. Dr Canaris diagnosed the Applicant as suffering from a mixed anxiety depression, a condition recognised by the ICD-10 classification used by the World Health Organisation. Dr Champion, who examined the Applicant twice at the request of the Respondent, said of Dr Canaris’ diagnosis that he may be correct, but added the caveat that he, on examination, had not found any current disorder. Dr Champion concluded his latest report by stating:
“The symptoms described may meet some of the criteria for adjustment disorder with anxious and depressed mood (DSM-IV), although not sufficiently severe to necessarily be consistent with such a diagnosis. I did not consider Ms Papa Lopez’s presentation was consistent with current work-related diagnosable psychiatric disorder.”
Previously Dr Champion had said in his report dated 31 July 2007:
“In my opinion, the diagnosis of what would normally be considered to be a significant psychiatric disorder, ie, post-traumatic stress disorder, as a result of the incident described, is unreasonable. Normal emotional response or possibly adjustment disorder with anxious and depressed mood, initially resolving in a matter of hours or days would, in my view, be more realistic.”
The Applicant was also referred by the respondent to psychiatrist Dr Parmigianni, who diagnosed a PTSD. As I accept the evidence of both Drs Canaris and Champion that the event did not constitute a severe stressor, and the diagnostic criteria for a PTSD have not been made out, and I prefer the opinions of Drs Canaris and Champion regarding diagnosis. That is, I reject the diagnosis of PTSD.
Central to the case for the Respondent is the argument that the Applicant is exaggerating her symptoms for secondary gain, namely that she was opposed to a change in her hours of employment. Prior to the assault which occurred on 31 May 2007, the Applicant had been informed that her hours of work at the Sydney City Post Shop would be changed to an afternoon shift. She was opposed to this for reasons she made clear to Australia Post in the letter dated 22 May 2007. In that letter she stated inter alia:
“If a positions [sic] becomes available close to Fairfield, I could start early am, finish 5 pm. In the event of positions in more remote areas in Sydney, I could then start at 9 am and finish 3 pm.”
Previously, the Applicant had taken leave on 18 May 2007, giving as the reasons for her absence “stress”. Following the conference with a rehabilitation counsellor on 27 June 2007, which has been referred to above, the Applicant wrote to that counsellor, complaining that she had no regard for her situation, but only wanted to ensure her return to work.
Exhibit 6 in these proceedings is a film showing the applicant. On one occasion the film shows the Applicant after her second visit to Dr Champion. From the activities observed, she does not appear to be in any distress. The second sequence of film shows the Applicant at the beach. What appeared was vision of a woman who was comfortable with herself and in no way reticent or retiring.I am satisfied that the Applicant does not have a PTSD, but accept the evidence of Drs Champion and Canaris that the events would have led to an adjustment disorder with anxious and depressed mood. Dr Canaris believes the Applicant’s anxiety condition is continuing. Dr Champion is of the opinion that any anxiety condition should have resolved within a few days. Both Dr Champion and Dr Canaris found difficulty in understanding how the incident of 31 May 2007 had caused such distress to the applicant as she claimed. The Full Court of the Federal Court in Hart v Comcare (2005) 87 ALD 341, held at page 345 that:
“Where a failure to obtain a benefit materially contributed to an employee’s injury, then the exclusionary provisions of section 5A of the Safety, Rehabilitation and Compensation Act 1988 operated to defeat any claim for compensation under the said Act.”
In this matter, document T4 and Exhibits R3 and R4 all indicate that the Applicant was “stressed” by the prospect that her hours of work were to change, and that she had, as a result, requested a transfer from her current place of work. Following the assault upon her, she did succeed in obtaining a temporary transfer to the Fairfield Post Office. That transfer was temporary only, and she faced the prospect of returning to the Sydney City Post Shop with hours of work that did not suit her.
Given the opinion of Dr Champion, I am satisfied that the Applicant was distressed by the incident of 31 May 2007, but I prefer his opinion that any negative reaction would have resolved over a matter of days. No doubt her reaction, on the Monday of fear going to her place of work, resulted from introspection over the weekend. On 27 June 2007 Dr Pope certified her as fit to return to work. Certainly, once she was at Fairfield Post Office her condition should have resolved, as she had been removed from the scene of the assault upon her. Any continuation of an anxiety condition after being transferred to Fairfield Post Office was materially contributed to by the “stress” occasioned by her failure obtain the benefit of a permanent transfer or revert to her former hours of work.
Thus I accept that the Applicant did have an anxiety condition, howsoever called, immediately after the incident of 31 May 2007, but that it had resolved by 27 June 2007. Any continuing condition is as a result of failing to obtain a benefit, and thus pursuant to section 5A of the SRC Act, not compensable.
The decision under review is set aside, and this matter remitted to the Respondent with the direction that the Applicant is entitled to compensation for an adjustment disorder with anxious and depressed mood from 4 June 2007 until 27 June 2007.
END OF EXTRACT [12.38pm]