Matthews and Comcare (Compensation)

[2020] AATA 3503

Matthews and Comcare (Compensation) [2020] AATA 3503 (11 September 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )
  )  No: 2020/0074
GENERAL DIVISION  )

Re: Sharna Matthews
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  Member Ward

CORRIGENDUM DATE:      1 October 2020

PLACE:                  Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the file number of the decision in this application.

...........................[sgnd]........................................

Member Ward

Division:GENERAL DIVISION

File Number(s):2018/2723      

Re:Sharna Matthews

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member Ward and Member Durkin

Date of written reasons:        11 September 2020

Place:Adelaide

The Tribunal sets aside the decision under review.

..............[sgnd]..........................................................

Member Ward

Catchwords

SOCIAL SECURITY – Disability support pension - workers compensation – whether applicant suffers incapacity for work arising from employment – multiple claims at request of decision maker – employer ignoring clear medical recommendations - employment significant contributing factor to worsening of accepted injury – plaintiff’s evidence not subject to significant challenge – Respondent accepts all but one of the outstanding disputes at the outset of the hearing – relief at being away from acute stress at work does not equate recovery – Treating Doctor not an advocate - Decision under review set aside.

Legislation

Administrative Appeals Tribunal Act
Commonwealth Services Delivery Agency Act 1997
Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Member Ward and Member Durkin

11.09.2020

1. The Applicant had an accepted claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 [SRC Act] arising out of psychiatric injury that she suffered in the course of her employment in December 2004.  The Applicant’s condition has been diagnosed as “major depressive illness and anxiety” and otherwise as “major depressive disorder, single episode with ‘anxiety’”. 

2. There was an exacerbation of the Applicant’s injury that were part of her accepted claim in 2017 and 2018. The applicant was not able to continue working and her employment ceased on 24^th August 2018.  This matter proceeded before the Tribunal on the issue as to whether the applicant was entitled to compensation in respect of the accepted injury for periods on and from 25^th August 2018.

3. The Applicant was employed by the Commonwealth in 1996 at what was then called the Department of Social Security.  The Applicant’s employment has generally since been with Centrelink which is a Commonwealth agency established pursuant to s.6 of the Commonwealth Services Delivery Agency Act 1997.  This body has changed over time and is now the Department known as “Services Australia”.  For ease of consideration of these Reasons, the Tribunal adopts (as the parties did for the hearing) the title “Centrelink” to cover the Applicant’s employer and the Applicant’s place of employment.

4. After significant treatment following the initial diagnosis, the Applicant returned to work at Centrelink’s Enfield office, working 3 hours per day, 2 days per week.  This increased over time to 4 full days per week by February 2016.  The Applicant was still in receipt of compensation and was not able to work a full week.

5. The Applicant’s work was as a Debt Recovery Officer at Centrelink at Enfield, a suburb in the Adelaide metropolitan area.  The Applicant was assessed by Dr Chesterman at the request of Centrelink.  This was to look at her ability to engage in a rehabilitation program.

6. Dr Chesterman formed the opinion in May 2017 that the Applicant was not fit to return to full time work. The Doctor considered that would be the ongoing situation, given the Applicant’s longstanding history of mental illness and the risk of relapse.  Dr Chesterman also noted that the Applicant was at her permanent maximum level of capacity when working 4 full days per week for 7½ hours per day.  Dr Chesterman was not the treating psychiatrist but agreed with a view that the treated psychiatrist proffered with regards to the Applicant’s work capacity. 

7. The decision was made at some point to close or reduce the operation of the Enfield office and relocate the Applicant to work in the City of Adelaide.  Prior to this event occurring, both the treating psychiatrist, Dr Giardini and Dr Chesterman, advising at the request of Centrelink, warned that care would have to be taken in dealing with the Applicant and any significant change to her employment.  Dr Chesterman stressed the importance of good communication and the allowance of sufficient time for Ms Matthews to prepare for any change.  Dr Chesterman especially noted that Ms Matthews should be provided with support so that she could function well in any changed circumstances. 

8. The change of location went ahead and communication was less than ideal. Inconsistent answers were given to requests for information or suggestions to manage the office move in a different way, so that the Applicant could continue working in the Enfield location. This included changing from Centrelink to NDIS work. Ms Matthews was seeking ways to mitigate or avoid the upheaval she would suffer as a consequence of the change of employment location.

9. The manner in which this move was dealt with led to a considerable worsening of the Applicant’s symptoms to the point that, rather than working 4 days per week, she was not able to work at all.

10. Eventually, on 21 August 2018, the Applicant’s employment with Centrelink was terminated on the grounds of her inability to perform duties because of her mental incapacity.

11. Thus, by 24 August 2018, she was much worse with regards to the symptoms arising from the accepted condition than she had been in May 2017. 

12. For reasons set out below, the Tribunal finds that at the time of the hearing the Applicant was still unemployed and essentially unemployable as a result of her injuries. 

    Matters Before the Tribunal

13. During the course of the period of the worsening of her symptoms, the Applicant made a number of applications. 

14. The first claim[1] was for an entitlement to incapacity payments for time off work from 5 December to 8 December 2017.  Although she had an accepted claim and was on compensation as a result, the Respondent formed a view then that the incapacity for work covering that period was a new compensation event. The Respondent advised the Applicant that she was required to submit a new claim for that event.  The Applicant did so.[2]

    [1]  Action No. 2018/2723.

    [2]  Action No. 2018/5591.

15. The Applicant had further time off work during the exacerbation of her symptoms and put in a claim for incapacity from 9 January 2018 to 18 February 2018.  The Respondent denied liability for that claim.[3]

    [3]  Action No.  2018/5589.

16. The Applicant then brought a further claim for weekly incapacity payments and medical expenses on 19 February 2018.  The Respondent determined that it was not liable to pay that compensation.[4]

    [4]  Action No. 2018/5594.

17. The Applicant brought a claim for compensation for the period from 19 February 2018 to 5 April 2018.  The Respondent determined it was not liable to pay the Applicant for that claim.[5]

    [5]  Action No.  2018/5593.

18. The Applicant then brought a claim on 18 May 2018 for compensation from 6 April 2018.  The Respondent determined it was not liable to pay that compensation.[6]  The claim was repeated by letter from the Applicant’s solicitor to the Respondent dated 18 May 2018.[7]  The respondent determined that there was no entitlement to compensation.

    [6]  Action No. 2018/5590.

    [7]  Action No. 2020/0074.

19. In addition, the Applicant had submitted a claim for compensation for the expense of psychiatric consultations with her treating psychiatrist, Dr Giardini, from 3 April 2018 to 1 May 2018.  This claim was also disputed.[8] 

    [8]  Action No. 2019/0814

20. These matters were in dispute when the hearing of the action commenced on 29 July 2020.  During the course of the hearing, the Tribunal was advised that a settlement had been agreed with respect to the bulk of these claims.[9]  The effect of the settlement was that the Respondent accepted all of the claims up to the termination of the Applicant’s employment on 24 August 2018.  The rationale was that the accepted injury continued to affect the Applicant up to that time.  The Respondent argued that thereafter its liability towards the Applicant as a consequence of the injuries caused by her employment had ceased.

    [9]  Effectively she was entitled to compensation for additional time off work and associated medical expenses as part and parcel of the accepted claim.

21. On that basis, the only ongoing matter in dispute was Action No. 2020/0074.  Those proceedings dealt with the Applicant’s claim for compensation pursuant to ss. 16, 19, 20, 21 and 21A of the SRC Act from 25 August 2018 onwards.

22. It is important to note at the outset, the various applications for compensation made by the Applicant were done so in accordance with the relevant legislation and with respect to the conduct of the Respondent.  As will be set out below, there was some criticism levelled at the Applicant for taking out so many applications, but in doing so she was being neither querulous nor vexatious.  She was doing what she had to do to comply with the requirements of the Act as the Respondent was interpreting them.  It is certainly no fault of the Applicant that she had to take those actions when her claims were repeatedly denied, especially when ultimately all but one of them were accepted. 

23. That acceptance is confirmation by the Respondent that she continued to be affected by the accepted injuries up to 24 August 2018.  It is also noted that during the relevant period this includes an acceptance by the Respondent of the significant exacerbation of those injuries to the point where her capacity for work reduced from being able to work 4 days a week to no capacity at all. 

24. For reasons which will be set out below, the Tribunal finds that the Applicant’s employment continues to be the significant contributing factor to her accepted injury. Pursuant to s.43(1) of the Administrative Appeals Tribunal Act, the Tribunal sets aside the decision in Action No. 2020/0074.

    Hearing and Evidence

25. The Applicant gave evidence in the proceedings via a detailed statement and oral evidence.  She was cross-examined but not in extensive detail.  It is important to note that matters upon which the Respondent relied in the opinion of Dr Hundertmark and in submissions were not canvassed in any detail with the Applicant during her evidence. Doubtless a forensic decision not to challenge the evidence had been  made. There was not a significant attack on the matters raised in her Statement dated 20 March 2020.  There was not an attack on the credibility of the Applicant, and the Tribunal accepts her evidence as set out in her statement and her oral evidence.

26. The Applicant deposed to having an unremarkable family life.  Her father died when she was aged 8 and she was told when aged 15 that he had committed suicide.  There is little evidence before the Tribunal that this knowledge caused deep-seated emotional scarring to the Applicant.  There is certainly no suggestion that this prevented her from undertaking usual activities including employment.  Her psychiatrist Dr Giardini took a history about this topic and advised Comcare of it in December 2006.  The Applicant’s evidence was that she had wondered for a time why her father had taken his life. She reconciled this as a ‘personal thing’ and she stopped wondering as to his motivation.

27. This was a matter discussed when she was at her nadir for her work-related bullying, but as a peripheral matter. Whilst mentioned in 2006 it was not the subject of ongoing comment or treatment.

28. The Applicant raised this issue with Dr Hundertmark when he examined her for a report for the purpose of this claim on 29 April 2019. She told him that she had a “real issue with somehow my [ongoing] depression relates to my father committing suicide”.  The report notes that she went on to say “I do not see the suicide as any different to death in any other way”.  Presumably, had she been cross-examined on this point, she would have given similar evidence.

29. The Applicant had a series of relationships.  She was married in 1992 and had a son by that relationship.  She separated from her then husband approximately 11 months into the marriage and was subsequently divorced.  She remarried in 1996.  She had two sons from that relationship.  She separated from that husband although it is not quite clear when, and a divorce took place.  Her evidence was that she was subject to domestic violence in the course of that marriage. This was important in her emotional state and she experienced a degree of PTSD from that abuse which required treatment at the same time as the manifestation of her original symptoms. This increased her anxiety and depressive symptoms and she had specific psychological treatment for it for a period. This was all before the Respondent.[10] There is no indication in the series of reports provided by Dr Giardini that this exposure to domestic violence was an ongoing source of problems for her after 2008.

    [10] Medical reports 24 April 2008 – T21 and 2 June 2008 - T22

30. She had remarried in 2007, but separated from that husband within approximately 11 months of the marriage and subsequently divorced.  There were no children from that relationship. 

31. She had a further relationship which led to the birth of a son in February 2009.  This young man suffers from autism.  All of this was set out in her Statement.  The relationship with the father of that son ceased in May 2019, indicating that the relationship had lasted for approximately 10 years.

32. These matters are relevant because they were raised as factors that might give rise to mental injury but which were not work related.

33. The Applicant’s various relationships were raised with Dr Gehan, a psychiatrist who provided an independent assessment at the Applicant’s request.  He made the point that in this day and age divorce is quite common and the Tribunal notes this.  There is little in her admitted pre-injury history that would give rise to a significant cause for the increased anxiety that she suffered in 2017 - 2018.  That increase was caused by her work.

34. After the significant treatment she had (which will be detailed below) after her original accepted claim in 2005 she was able to return to work. She increased her initially modest hours up to 4 full days per week. 

35. There is little information before the Tribunal that would indicate that she had serious ongoing emotional concerns and issues regarding her life outside of her work situation.

36. The original 2005 claim that was accepted has not been challenged. It is important to consider those events to assess whether the accepted injury has continued to affect the Applicant beyond 25 August 2018.

37. The Applicant commenced employment with Centrelink in 1996, initially in the Griffith office in NSW, and then from 1999 in the Kilkenny office in South Australia.  The work she did then changed.

38. Her evidence was that prior to December 2002 she had not suffered any psychiatric illness and had not seen a doctor or psychologist in relation to any psychological or psychiatric condition.  She was not challenged on her evidence on that point. 

39. Her troubles commenced whilst working as Acting Team Leader when she considered she had to be involved in a performance improvement plan for a co-worker which was in her mind a sham.  She thought that the outcome of the plan had been predetermined and it was simply a matter of going through the motions.  This led to the relevant employee being terminated.  The Applicant was very concerned about this and about having to give evidence if the employee took the matter to court.  She found as a consequence that being in the role of Team Leader where such circumstances might recur was not appropriate and she stood down from that role.

40. She was then subject to what she would describe as harassment regarding the unfair dismissal case that she predicted.  Her description of what occurred would give rise to a classification of bullying and it upset her significantly.

41. She was so upset by these matters that she sought a transfer from the Kilkenny office the Centrelink Enfield office.  Her evidence was that “I was seeking a fresh start and put the stress of the matter behind me.”[11] 

    [11]  Exhibit 5, para 7.

42. Further issues occurred in November and December 2003 when she was investigated for what was described as a code of conduct breach.  She considered this investigation was a witch-hunt against her and she formed the perception that meetings were taking place about her.  She considered that the investigation was a vendetta because of what had occurred in 2002 and she suffered emotional decompensation as a consequence.

43. Her treating doctor referred her to Dr Giardini, a psychiatrist who first saw her in 2005 and has continued to see her since. The Applicant made a claim, which was the accepted claim, for “major depressive illness and anxiety”.  There was a reconsideration of this and Comcare advised her on 18 May 2005 that “all correspondence will now state that your accepted claim is ‘major depressive disorder, single episode with anxiety’”.

44. The Applicant returned to work in June 2005 and was working limited days.  The point that was made – and has been made constantly – was that the Applicant loved her work and took pride in the fact that she could do the best that she could.  This had been a consistent view expressed by her and has been obvious in her rehabilitation. 

45. However, the Applicant’s return to work was fraught.  She suffered increasing feelings of depression, anxiety and stress in 2005/2006.  This was a serious condition.  Indeed, the Applicant was hospitalised.  Whilst in hospital, she had electroconvulsive therapy.  She considered this did not really help her greatly and she remained quite depressed, although others say she had a reasonable result from it.  She had suicidal thoughts. She had further periods in public hospitals and private hospitals.  There is no question but that her situation was dire.  She began to self-medicate with alcohol which led to an admission to the Alcohol Unit at a Joslin Medical Facility in November 2006. The main symptom at this time was the depression. She felt that she could not leave her house, or answer the door, or look after herself. Her mother provided assistance, upon which she relied.

46. The Applicant’s evidence was that by the time of the birth of her third son, or shortly afterwards, she felt that the depression had lifted.However, her anxiety condition continued to affect her when she returned to work, although she was able to push herself to increase her hours, as noted above.

47. Her uncontested evidence is that by February 2016, when she was working four fulltime days per week at the Centrelink Enfield office carrying out her normal duties, she was still suffering significant feelings of anxiety. 

48. She found that she had to cope with this anxiety by meticulous planning.  If any matter arose that caused her plans to be changed or the introduction of something that was outside what she had planned for, she would become more anxious and her emotions would quickly escalate.

49. She has also remained anxious about relapsing into severe depression.  She remained anxious about Centrelink and did not trust Centrelink.  By that, we take it to mean the organisation of Centrelink.

50. There was extensive evidence as to the events that led to the increase in her symptoms surrounding how she perceived she was treated by Centrelink and also the closure of the Enfield office and moving to the City office.  This includes evidence that the Applicant attempted to remain in the Enfield office, working in another capacity.  There was some discussion with her, but not a great deal. There was some consideration of alternatives to moving such as her being able to transfer to the NDIS but these alternatives did not eventuate. In any event, she had to move to the city office.

1. The Respondent was well aware of the Applicant’s condition and her vulnerability.  Dr Giardini wrote to the Human Resources Manager at Centrelink on 1 December 2017 setting out the Applicant’s significant “severe anxiety disorder”.  He pointed out that her condition was mostly under control and she was able to manage her current work duties satisfactorily in her current work environment.  He made it clear that she would not be able to cope with commuting to and from the City and her home in the northern suburbs.  In addition to that issue, she greatly feared having to come into contact with one of the original managers at the City office who was involved in her severe breakdown some 13 years previously.

2. He implored Centrelink:

   “I would therefore respectfully request you give strong consideration to allowing Mrs Matthews to continue doing the same debt management duties as an ‘outposted’ employee, either at her current location of Enfield or even at the Salisbury Centrelink office which would be even more convenient for her because it is closer to her home”. 

3. He went on to state:

   “I am therefore hopeful that you will be able to also make an allowance in this way for Mrs Matthews because of her special needs”. 

4. The last comment was with regard to other employees who she thought would be able to continue their work duties in remote locations.

5. As noted, Centrelink used the resources of independent psychiatrist, Dr Chesterman.  She had seen the Applicant on a number of occasions.  Dr Chesterman advised Centrelink that a change in the workplace “will mean a major shift in rehabilitation focus which has tried to rehabilitate her within the Department for the last 13 years”.

6. In a report dated 5 May 2017, Dr Chesterman was asked to advise Centrelink about her continued employment at Centrelink Enfield.  The letter of commission to Dr Chesterman states:

   “There are currently no plans to move the Enfield debt raising team to any other location.  However, as business requirements are often subject to change, if this were to occur in the future, what recommendations can you provide to assist with facilitating such a move for Ms Matthews having consideration for her diagnosed conditions.”

7. The Tribunal notes that the preparations to move commenced shortly after this.

8. Dr Chesterman warned Centrelink that the Applicant would require advanced notice and careful planning if the business were to move to another location.  She said that with good communication and time to prepare, she thought that the Applicant, whilst being understandably anxious about such a move, would be likely to function quite well with this support in place. 

9. The move was not handled in the way suggested in the medical advice of the treating psychiatrist or the expert brought in for the very purpose of providing advice as to how to handle the matter.  We need not comment overly on this because the exacerbation of her injury leading to the various claims discussed above are now accepted by the Respondent by an Agreement between the parties of 31 July 2020.

10. However, her uncontested evidence is that she spoke to people at Centrelink about her concerns regarding moving to the Adelaide office on repeated occasions.  She arranged for a meeting with her psychologist and her team leader on this issue, however that meeting was cancelled.  A difficulty for her with arranging meetings with HR was that it increased her anxiety.  She said that she would be interested in transferring to the NDIS if the position was at Enfield.  She did not really want to do that, but thought it was the best option.

11. Her anxiety increased when, without warning, her superiors attended the Enfield office and started removing all staff personnel files and other items to move them to the City office.  She had not heard anything about her request not to transfer to the City office when this occurred. 

12. She received an advice in October 2017 that the NDIS position was “looking really good”, but it eventually came to nothing.

13. She continued making enquiries about whether there was any advancement on the issue of her relocation.  She sent emails to her superiors, noting her concerns and anxiety at not receiving information on the topic.  She was told she would be starting on 27 November 2017 which threw her because she “was unaware of everything”.  She advised her employers that whilst she wanted to leave work because she was not coping, she stayed because she was trying to keep control of her personal situation.

14. In any event, interactions such as these continued to the point where she was unable to work at all.  It is clear to the Tribunal that there was poor communication with her.  It is clear that the advice of the doctors was essentially ignored and that the situation led to an increase in her symptoms to the point where she was obliged to cease work.  It should be noted that prior to ceasing work altogether, there were attempts to return to work in 2018 but she found her condition was deteriorating further and she was becoming more upset, more tearful, more anxious and apprehensive.

15. Dr Chesterman saw the Applicant on 6 April 2018 and advised her employer that she was not fit to work at Centrelink.  She was directed not to attend work by her supervisor and, indeed, she has never returned to work since.

16. The Applicant’s employment with Centrelink was terminated on 24 August 2018 on the grounds of an inability to perform her duties because of her mental incapacity. Implicitly, this was an assertion that the work-related factors no longer had any relation to that mental incapacity.

17. In her Statement, and repeated in her cross-examination, the Applicant said that her departure from Centrelink actually led to a significant improvement in her condition compared to what it was in April 2018 just before she ceased work.  She said quite frankly that she was a lot less anxious and that she was not bedevilled by constant thoughts as to “what Centrelink are up to now”.  She thought she was no longer exposed to triggers which caused her feelings of anger and resentment.

18. Whilst this improvement is understandable, the fact of the matter remains that the Applicant is still unemployable as a consequence of the increase of her symptoms due to the conduct of her employer in the last two years of her employment.  Her relief at no longer being constantly triggered is not regarded by the Tribunal as recovery. 

19. It was urged upon the Tribunal that this meant that her work had ceased to be the significant contributing factor to her injury.  In our view, that represents a misreading of her admission that the acute exacerbation has been alleviated by the removal from the workplace. Her significant incapacity remains.  This incapacity was caused by her employment at Centrelink.

20. This view was clearly expressed by Dr Giardini in his report of 25 February 2019.[12]  He was of the view that her psychiatric state had been continually present, even if partially in remission from time to time, for many years and there had been recurrent crises in the workplace, resulting in flare-ups in her symptoms, culminating in her severe relapse during the 2017/2018 period.  He noted then that her symptoms had included anxiety, panic attacks, stress symptoms and an increase in obsessive compulsive disorder symptoms.

    [12]  Exhibit 6. 

21. Dr Gehan, consultant psychiatrist, considered that the Applicant had developed a serious depressive disorder in 2004.  He noted that the symptoms progressed to a serious level whereby she required electroconvulsive therapy in 2006.  The general psychiatric consensus was that the applicant had a major depressive disorder.  The evidence before the Tribunal is that stress was part of that disorder.  The Tribunal rejects an assertion that it was a subordinate part of a major depressive disorder.  Rather, it runs parallel.  Sometimes the major depressive disorder was the significant debilitating factor; other times it was the stress; other times a combination of the two.  The Applicant admitted, and the doctors agreed, that the depression improved.  However, the major depressive disorder is not cured. The Tribunal finds that it is present and the medical evidence is unanimous that it is latent, but that there is a risk of it recurring.  She has expressed concern about that and with good reason, given the severity with which it had affected her in the past.

22. The anxiety has not abated and has continued to affect the Applicant, becoming much worse in 2017/2018.  It remains the current cause of her disability. It was caused by her work.

23. Dr Gehan considered that the major depressive disorder has now moved into the symptomatology of an anxiety disorder.

24. The terminology is not of great concern.  The Diagnostic Statistic Manual has changed on two occasions since the first diagnosis was first made.  The consistent feature of her condition is the anxiety aspect, so if the technical label of that changes over time, it does not mean that the accepted compensable condition has resolved.  The condition has persisted.

25. Following his detailed analysis of the medical evidence, Dr Gehan was of the view that the Applicant was totally incapacitated when he assessed her on 11 November 2019.  His view is that the total incapacity arose from her accepted injury and he did not consider that she had suffered any new injury.  The Tribunal accepts the evidence of Dr Gehan.  Dr Gehan said “There was a continuity of events and what happened in 2017 was essentially part of the process that had continued from 2004”.  His view was that the Applicant’s then total incapacity arose out of her accepted claim and her symptomatology that he assessed was an aggravation of her ongoing symptoms. 

26. Dr Gehan thought that any attempt to return the Applicant to the Centrelink environment or a similar environment would quickly escalate her symptomatology.  Thus, the Tribunal’s view is that although she acknowledges she is somewhat better, she has by no means recovered.  Dr Gehan summarised it well when he said, “I consider the 2004 injury has contributed to a significant degree and continues to have an impact in terms of her ongoing symptoms that are now more of an anxiety nature”.  He considered her prognosis was poor.  The doctor thought that it might improve with further treatment and so ongoing rehabilitation is certainly an issue that arises here.

27. Whilst Centrelink had used the services of Dr Chesterman to assist them with handling the Applicant’s situation, the compensating authority, Comcare, arranged for the Applicant to be examined by another psychiatrist, Dr Hundertmark. 

28. The respondent’s case was based significantly on the views of Dr James Hundertmark who provided independent medico legal reports for the respondent (as distinct from the employer).

29. Two reports were prepared.  In the letter commissioning the second report of 17/4/19 Dr Hundertmark’s attention was specifically focused on the following “non exhaustive list of non-work-related factors and history to be relevant to [his] assessment of Ms Matthews.”  These were set out as follows:

a)      She was a single mother of four children;

b)      Her father committed suicide when she was young;

c)      Other family members have had mental health diagnosis/issues (including her brother and at least two sons);

d)      She had been the victim of domestic violence;

e)      She alleged cognitive difficulties following ECT;

f)       She had a history of alcohol abuse;

g)      Past diagnosis of Pheochromocytoma;

h)      Diagnosis of Ventricular Tachycardia, resulting in multiple visits to emergency

1. History of not taking prescribed anti-depressant medication;  and

j)       Stresses associated with the compensation system.

1. Dr Hundertmark was also provided with various other documents and other medical reports.

2. It is important to reflect here that many of those matters in the list of issues are at best vague.  More importantly there was no detailed cross examination on these other issues with the applicant in her evidence.  There are references to some of these issues in her statement by way of history. However, she had not been in receipt of any psychiatric care or treatment prior to the work episodes that culminated in her claim.  These issues are not referred to in any meaningful way as part of her treatment for at least ten years prior to the hearing, if not more.

3. The commissioning letter to Dr Hundertmark also referred to Ms Matthews having a previously accepted claim for “major depressive disorder, single episode (unspecified) with the date of injury 6 December 2004.”  This was described as “the accepted psychological condition”.  However, that was not accurate.  There was no reference in that description to the stress aspect of the accepted psychological condition.

4. In Dr Hundertmark’s report dated 29 April 2019, he acknowledged that Ms Matthews suffered from a depressive disorder.  He said that this depressive disorder had driven her anxiety symptoms (apart from those directly related to the specific incidents of Pheochromocytoma).  His view was that if she continued to suffer from her current major depressive disorder it fits the relevant DSM 5 criteria.  He noted that this depressive condition was, at the time of his assessment, in partial remission which would accord with the Applicant’s own evidence.

5. His view was that the condition appeared to have commenced in December 2004 but he found it was multi-factorial in causation.  He had not examined her back at that time and of course her condition was accepted as having been caused by her employment.

6. Dr Hundertmark was asked as to when Ms Matthews ceased to suffer from the accepted psychological condition.  His response was “She ceased to suffer from the accepted condition totally when she took invalidity retirement.”  He formed a view that it was possible that the applicant may have developed the major depressive disorder without the influence of the employment.  Whilst he considered that was possible, the Tribunal finds that was not the case.[13]

   [13]  As consistent with the accepted condition

7. The Tribunal finds that the employment was the cause of the condition which has affected her for approximately 16 years and although the nature of the condition has changed over time in terms of intensity (depression worse, then not as bad, but with anxiety becoming worse) there is no doubt that it was the direct actions of her employer, with little regard for the clear warnings from the treating psychiatrist and the specialist psychiatrist retained by the employer for this purpose, that led to the significant exacerbation of her anxiety symptoms. They increased up to the position where she was unable to work at all and, despite the views of Dr Hundertmark, the Tribunal finds that they have continued to affect and incapacitate her.  Although there has been some alleviation of the acute aspect of her anxiety because she is out of the work environment, the tribunal finds that she now cannot work because of that condition.

8. Dr Hundertmark noted that the treating psychiatrist, Dr Giardini, supported the view that the work was the cause of her condition at all relevant times.  He stated “It is quite natural for the treating psychiatrist to become somewhat of an advocate for the patient.  It is of some significance that Dr Giardini, reports no other issues other than those related to the workplace.”  This, though, was not put to Dr Giardini specifically.  There was a suggestion in the cross examination of him that he might have a special relationship with the patient. No doubt as a long time treater he did, but not one as an advocate for an AAT hearing.

9. The Tribunal accepts that there are situations arising where long term treating medical practitioners might have a different relationship with their patients than those who come in on an independent basis.   The fact is that Dr Giardini and Dr Chesterman (who was an independent specialist) have expressed very similar opinions. We also note the clearly expressed views of Dr Gehan whom the Tribunal found to be an impressive witness.

10. The Tribunal finds that there was no advocacy on behalf of the applicant by her treating psychiatrist. He was an impressive witness who did his best to assist the Tribunal.

11. In reviewing the medical evidence before the Tribunal, a medical report from Dr Sinnott (which was obtained for the employer in March 2006) confirms no past history or psychiatric history or any pre-morbid personality back then, and that before 2002 the applicant was an outgoing, extroverted person who:  “Would tell it as it is – she said she was a person who would get out there and get things done and she was a social and friendly person who liked being around people.”  The applicant gave similar evidence during the course of the hearing of the way she was before these work problems and that was not challenged.  The Tribunal finds that if she was labouring under the mental vexation of the various issues that were put to Dr Hundertmark to consider it should have been obvious at that point when Dr Sinnott saw her, as many of those issues occurred prior to her employment issues.

12. Looking at the issues listed by Dr Hundertmark, we note that a problem was raised with regard to taking anti-depressants.  There is clear evidence from April 2006 that anti-depressants were causing gum problems with mouth ulcers and abscesses.  The Applicant had never had such problems prior to the anti-depressant treatment and required significant dental treatment to lance the abscesses to relieve the pain and hasten the healing process.  Indeed, this led to a hospitalisation at the Fullarton Private Hospital to cope with a change in the anti-depressant treatment.  A suggestion that this was a wilful act on her part which somehow indicates a factor to be taken into account in assessing the extent to which work might be the cause of her current problem, is misguided.  The problems with the anti-depressants and the abscesses were caused by her accepted injuries.

13. Dr Hundertmark also alluded to the multiple claims brought by the Applicant in the AAT in a manner suggesting a criticism of her. As noted, these were necessarily made and, in many respects, made at the direction of the Respondent. They were also appropriate, have been accepted in her favour in every respect. We do not accept this as a ground of criticism of her.

14. Earlier in this matter a report was obtained from the psychiatrist Dr Begg, for the employer, in October 2006. It noted the history of the applicant’s father committing suicide under the heading “Past Medical History”, and with that information before him, Dr Begg did not think it had any relevance to the issues arising from her work. Dr Begg noted that the reason the applicant would be unable to return to her pre-injury duties at that stage was because she was too depressed working in the Centrelink environment. 

15. Dr Begg also addressed the cognitive issue following ECT that was put forward as one of the lists of factors of other causes for her current problems.  The applicant thought she had memory difficulties due to the ECT.  This is natural enough for a lay person to think, but the doctor considered those problems were far more likely due to the then current levels of depression.  This again is very similar in cases of this nature where high levels of depression can mirror cognitive impairment and can cause symptoms that would be similar to those caused by a head injury.

16. The tribunal finds that these historic issues do not contribute in any meaningful way to her accepted injury. The accepted cause, and ongoing cause is her employment. The Tribunal thus does not accept the proposition that employment ceased to be a contributing factor on the day she took invalidity retirement. There is no basis for such a finding on the facts of this matter. Her inability to work was caused by the employment, and this continues.

    REASONS FOR DECISION – PROCEEDING 2020/0074

17. This decision under review, dated 6 November 2019, determined that as of the 25 August 2018, the Applicant had no present entitlement to compensation in respect of medical treatment and incapacity.  The Decision to affirm that was made on 18 December 2019.  The application for review of that Decision was made on 6 January 2020. 

1. The Tribunal finds that the Applicant continues to suffer from the effects of her accepted injury which continues to be significantly contributed to by her employment. The Tribunal sets aside the decision under review accordingly.

2. The Tribunal further finds that the Applicant remains incapacitated for work as a result of the accepted injury and reasonably requires medical treatment in respect of the accepted injury.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Members Ward and Durkin. 

………[sgnd]………………………….
Administrative Assistant Legal

Dated: 11.09.2020

Date of hearing:   29.07.2020, 30.07.2020, 31.07.2020

Applicant’s representatives:  Mr Ian Milsom & Mr Jarrod Warren (Counsel)

Respondent’s representative:   Ms Su Yi Koo, Mr Christopher Wong, & Mr Paul d’Assumpcao (Counsel)