McKENZIE Applicant And MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 275
•20 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 275
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2008/0767 & 2009/0129
GENERAL ADMINISTRATIVE DIVISION ) Re JACQUELINE McKENZIE Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member
Dr M Miller AO, MemberDate20 April 2010
PlaceCanberra
Decision The decision under review is set aside and the Tribunal remits the issue of whether Ms McKenzie’s adjustment disorder is a permanent injury which meets the 10 percent threshold under Table 5.1 of the Guide back to the Commission. .....................[sgd].................
Professor RM Creyke, Presiding Member
CATCHWORDS
COMPENSATION – whether condition a new ‘injury or an aggravation of an existing injury – whether aggravation contributed to, to a significant degree, by employment – whether aggravation suffered as a result of reasonable administrative action – whether adjustment disorder reaches permanent injury threshold under Table 5.1 of Comcare Guide – decision under review set aside and remitted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14, 19, 24, 27
Accident Compensation Commission v C E Heath Underwriting & Insurance (Australia) Pty Ltd (1994) 121 ALR 417.
Asioty v Canberra Abattoir Pty Ltd (1989) 17 CLR 533;
Re Carpenter and Comcare [2010] AATA 62.
Casarotto v Australian Postal Commission (1989) 86 ALR 399.
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536.
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
20 April 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member
Dr M Miller AO, Member1. Ms McKenzie joined the Army in 1976 aged 18 as a permanent member of the forces. She reached the rank of a non-commissioned officer, Warrant Officer Class II. She was discharged on 6 February 2005 on medical grounds. On 7 February 2005 she joined the Defence Materiel Organisation (DMO) as a civilian employee. Ms McKenzie left her employment at DMO on 19 September 2007 and has not been employed since. She was medically retired on 1 October 2009.
2. During military service Ms McKenzie suffered a number of physical injuries principally due to the demands of physical training. The Military Rehabilitation and Compensation Commission (Commission) accepted liability for injury to her right ankle, left wrist, both knees, lumbar spondylosis, cervical spondylosis, bursitis in the left shoulder, and adjustment disorder.
3. Permanent impairment claims were accepted for her cervical spine condition, her lumbar spine condition and her left knee condition. Subsequently, liability was accepted for her right knee condition and for her left wrist and shoulder. However, incapacity payments for her other physical injuries and her adjustment disorder ceased in November 2008.
4. There are two proceedings: the first for compensation for incapacity under section 14 and section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for the adjustment disorder from 18 September 2007, an application rejected by Comcare on 5 February 2008.[1] That decision was upheld on review on 16 December 2008. The second seeks compensation for permanent impairment for adjustment disorder with depressed mood in accordance with section 24 and 27 of the (Act), a decision on which was deferred by the Commission on 6 August 2007, and varied on review on 21 February 2008 to deny liability for permanent impairment and non-economic loss.
[1] The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) since the period covered predated the introduction of the Military Rehabilitation and Compensation Act 2004 (Cth) which commenced on 1 July 2004. Pre-existing rights were preserved by section 4AA of the Act. See also Re Woolmer and Military Rehabilitation and Compensation Commission (2007) 96 ALD 204.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or ...
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: ...
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's
employment by the Commonwealth or a licensee.(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or
a licensee, the following matters may be taken into account:(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
4 Interpretation
(1) aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function….
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
7 Provisions relating to diseases
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
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….
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated …
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters. …
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section. …
27 Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment. …
Issues
5. The two applications will be dealt with in the order listed. If there is no liability by the Commission for incapacity for the adjustment disorder because it is a new condition, but is not an injury because it was due to failure to obtain promotion, there can be no liability of the Commission for permanent impairment.
6. If there is liability for the Commission because Ms McKenzie's adjustment disorder is an injury as an aggravation of her previously accepted psychological disorder, the second application which contends that the condition is permanent must be considered. In consideration of the second issue, sub-issues are whether rehabilitation could reduce or remove the condition, if not, whether the condition is 'permanent', and whether it meets the minimum level of 10 percent impairment under Table 5.1 of the second edition of Comcare’s Guide to the Assessment of the Degree of Permanent Impairment (Guide).
Background and Ms McKenzie’s evidence
7. Ms McKenzie was born in the United Kingdom and had a difficult childhood. Both her parents had died by the time she was 14 and she was for a time placed in a foster home. At age 15 she and an older brother migrated to Australia where another brother also resided. She enlisted in the Women’s Royal Australian Army Corps (RAAC) at age 18 in 1976, having undergone a psychological test prior to entry, passed and been accepted. Subsequently the RAAC was integrated into the regular Army in either 1978 or 1979. Ms McKenzie said she found her ‘home’ in the armed forces, and leaving after 29 years caused her considerable grief.
8. Ms McKenzie’s Army career commenced in November 1976 and she had become a non-commissioned officer, Warrant Officer Class II by 1998. She was discharged in February 2005 on medical grounds. During service she suffered a number of physical injuries due to the physical demands of service training, for which she received compensation. She was compensated for permanent impairment for a cervical spine condition, a lumbar spine condition, a left knee condition, and had accepted injuries for a right knee condition and a left wrist and shoulder condition.
9. From 1998 to 2000 Ms McKenzie spent 18 months as a Military Liaison Officer, with the Defence Community Organisation (DCO) providing support for members and their families, particularly following bereavement. She received a positive psychological report prior to being posted. However, she was relieved to move out of that posting into a training unit because she found the liaison officer work emotionally draining. She had to deal with cases of domestic violence and two cases of suicide of serving members as well as interventions to assist other disturbed Army personnel. The stress at that time led to the acceptance in May 2007 of her claim for compensation for an adjustment disorder with deemed date of injury of 12 January 1998.
10. She received an unfavourable promotion report in 2000 which she regarded as unfair. At that time, early 2000 Ms McKenzie gave evidence that she was drinking alcohol to help her get to sleep because of the pain from her physical injuries. She said in time this no longer helped. She would also drink at social functions.
11. Ms McKenzie was appointed in 2001 to escort the parents of a cadet who had died. She attended the Board of Inquiry which she found emotionally draining and which brought back memories of her time with DCO. Ms McKenzie left the training unit and transferred to Canberra in 2002.
12. Despite the move, Ms McKenzie said her position did not improve. She faced problems due to her physical disabilities, her perception that she had been discriminated against as a woman in a male-oriented military culture in which assistance is provided to ‘mates’, and she received a further negative report in 2004, one only of three needed for promotion to Warrant Officer Class 1. At that point, Ms McKenzie decided she had no further career in the Army. As she said to her psychologist, Ms Papantoniou in October 2007, ‘to be promoted you have to be physically and medically competitive, plus meet the intellectual requirements for the job’ and physically she knew she was not able to reach her goals. She was ‘utterly disappointed with her lack of advancement in the military’ which had been her ‘family’ for nearly 30 years.
13. She was discharged from the Army on 6 February 2005, and the next day commenced civilian employment with the Defence Materiel Organisation (DMO). At the beginning she was employed on contract as a temporary APS6 Workforce Manager but was appointed to a permanent civilian position in July 2005 as a substantive ASO4, acting in a higher classification.
14. In April 2005, Ms McKenzie applied to the Department of Veterans' Affairs for compensation for her physical injuries. At this time, she also commenced her consultations with Dr Tim Watson, a general practitioner in private practice. Prior to that time, until late 2004, the Army had funded medical treatment for her physical conditions and for her psychological disorder.
15. Initially at DMO she managed well. She maintained physical fitness by running at lunchtime until her left knee prevented her doing so, and was granted funding to study part-time for a Graduate Certificate of Professional Accounting. However, by mid 2005, the initial situation began to change. She was feeling increased pain in her left hand and shoulder, and had headaches or migraines. She also acknowledged in evidence that her psychological symptoms may have begun to deteriorate in July 2005.
16. In mid 2006, when the position in which she was acting was advertised she applied, but it went to a friend of one of the interview panel. Ms McKenzie then secured another Human Resource Manager position in Army Aviation Systems Branch at a substantive APS4 level. She was very busy, and by mid 2005 was working long hours. As a consequence of these hours, and because her treatments were no longer funded by the Army and her claim with Comcare had not yet been resolved, Ms McKenzie had to forego her medical treatments. This had a negative effect on her physical condition and led to an increase in pain from her physical disabilities, and a new symptom, shooting pain in her left arm.
17. She continued to work at this pace until November 2005 when she consulted a doctor in her usual practice and began to work reduced hours. In December 2005, Dr Watson confirmed the need for her to cut back on her working hours and prescribed anti-depressants. As a result, from November 2005 until May 2007, she was only working part-time on a graduated return to work program.
18. Ms McKenzie returned to full-time work in May 2007 but in order to do so again she had to forego her medical treatment comprising physiotherapy, injections, chiropractic, and hydrotherapy. She was also no longer doing exercise. In combination these circumstances led to her conditions flaring up and to her once again experiencing increased pain in her back and shoulders. It was also difficult for her to attend counselling.
19. The adverse working conditions were increased when a new supervisor of Ms McKenzie was appointed from September 2006. Ms McKenzie said she found her to be domineering, autocratic and bullying. Three of Ms McKenzie’s colleagues transferred out of the section. The supervisor withdrew the funding for the study she was undertaking when Ms McKenzie had completed half of the course. In 2006 when the position in which she was acting as an ASO6 was advertised the supervisor said Ms McKenzie could not apply for it since she was only working part-time. Ms McKenzie records her supervisor as saying: ‘Within my experience, people on long term restrictions rarely come back to work full-time and get promoted’, a comment Ms McKenzie said made her the more determined to get promoted.
20. When an appointment was made, once again, the position went to someone who was allegedly a friend of the supervisor’s. Ms McKenzie was relegated to an APS4 position but was asked to train the person appointed to the APS6 position which she did although it was not part of her duty statement. Following this setback, Ms McKenzie was moved from that area in July 2006 and acquired a different supervisor, Ms Amber Davidson. She remained in a substantive ASO4 position but was on additional responsibility pay.
21. Ms McKenzie said from May 2007, despite being on 'a high' psychologically because she had achieved a return to work full-time, she was aware that physically she would not improve. At that time, she remained on medication for her depression, and was under the care of Dr Watson. In May 2007, Comcare accepted liability for her physical and mental conditions. The Commission, later in May 2007, accepted liability for her adjustment disorder. On 7 May 2007, Ms McKenzie saw Dr Mickleburgh, a consultant psychiatrist, for an initial assessment and he had made suggestions for cognitive behaviour therapy which, when undertaken, might assist her psychological condition. At the time she was on a high dose of her anti-depressant medication and was receiving psychotherapy for her adjustment disorder. She was continuing to receive cortisone injections into her joints to relieve pain, a treatment which had commenced in October 2005.
22. By September 2007, Ms McKenzie was again acting in an APS6 position and had applied for the position when it was advertised on 25 July 2007. However, on 18 September 2007 she was informed by a colleague that she had not been successful. Her evidence about her reaction was that ‘I said to him ‘thank you’ and I laughed and said ‘Thank you very much, Andrew, that’s okay’. At 5:00pm the next day, Ms Davidson rang her at 5.00pm and also told her the news. She said at the time she felt 'flat’ and ‘numb’. ‘I wasn’t upset at work. I left work’. She said she did not sleep that night as she was in pain. However, the next morning, 19 September 2007, when she tried to get out of bed, her knee gave way and as she said ‘it compounded everything and I broke down’ and ‘burst into tears’.
23. She rang Dr Watson that day but could not get to see him so had a consultation on the first available occasion which was 28 September 2007. He certified her as unfit for work certifications which he had extended for the next four months. She has not worked since. Dr Watson sent her to a psychologist, Ms Papantoniou in October 2007 because, she said, she was close to a breakdown.
24. Ms Davidson provided a work performance report on Ms McKenzie on 17 October 2007 in which she noted that she had telephoned Ms McKenzie on 18 September 2007 to tell her the news about missing out on the APS 6 position The report noted that she had received an email from Ms McKenzie on 20 September 2007 ‘advising that she had taken the news very badly and needed some space’. Ms Davidson had approved that leave. On 2 October 2007, she received an email from Ms McKenzie advising that she had a medical certificate for sick leave from 19 [September] to 19 October 2007. Ms Davidson said that Ms McKenzie alluded to some ‘vague references’ to ‘other’ personal issues, but Ms Davidson said ‘I am only aware of the knowledge of not winning the position, which has instigated Ms McKenzie’s reluctance to return to work’.
25. When asked about this email at the hearing, Ms McKenzie described her state of mind at that time in these words: ‘it wasn’t me, I mean it was me physically, but I mean it wasn’t me mentally. I don’t understand why I was reacting the way I was reacting. I couldn’t understand why I’d reacted that way. When I’d lost promotions before, I didn’t react that way. Why was I reacting this way now? I just couldn’t understand it’. As she said to the Tribunal: ‘I was just a wreck, a total emotional wreck, I couldn’t even talk … I just didn’t understand what was wrong with me’.
26. In late September 2007, Ms McKenzie said she was sounded out about another position in the Air 9000 Project Office for which she could be eligible but she thought she was not good enough so did not apply. She applied unsuccessfully for one job in the private sector. She said she can not go back to work. She has been on maximum dosage of her anti-depressant medication since she left work and her physical conditions are deteriorating. She was medically retired on 1 October 2009. She has since had surgery on her right knee but had also had several falls and may have injured her right hip. Ms McKenzie said she believes her health will not enable her to return to work, and she said her sense of duty and her inability to perform adequately means she has not attempted to re-enter the workforce.
27. In questions about the cause of her continuing depression and adjustment disorder, Ms McKenzie acknowledged that she has a number of stressful matters in her private life. She was orphaned at a young age, left England to come to Australia age 15 and had to cope with the relocation, has a daughter with cystic fibrosis, a husband who has had periods of being unwell and has been retired on medical grounds, there are difficulties for Ms McKenzie and her husband because of her physical and psychological conditions and these have put strains on the relationship, she has financial difficulties, and she has had to deal with the impact of the suicide of her daughter’s partner and of a nephew.
28. Ms McKenzie conceded that there were multiple contributing factors to her depression, but says her depression should not be attributed to either childhood or developmental factors or to the fact that she did not secure a promotion before her major depressive episode. She maintained that despite an adjustment disorder being accepted in 1998 while in the Army, her psychological factors were not a cause of concern during nearly 30 years of military life nor was it picked up in yearly medical examinations. Ms McKenzie said the news about the promotion had been devastating and it added to her depression. She claimed her break down was ‘the realization … that my injuries were not getting better, but rather worse’. She also said she felt that she was the victim of another adverse experience and she did not have the strength to go on fighting.
29. Ms McKenzie was questioned about the report of her medical examination, dated 17 December 2004, prior to discharge from Defence. That report had listed only her physical disabilities, and had no response under the heading for ‘Stress or mental health’, and the ‘Never’ box had been ticked in relation to a question about ‘present lifestyle putting under stress’, and the ‘Almost no stress at all’ box had been ticked in response to ‘During the past two weeks, how much stress have you experienced?’. Asked in cross-examination about these answers, Ms McKenzie said there was nothing she was trying to hide in her responses since Defence had other documents listing all her disabilities, and her answers were truthful in relation to the stress questions since at the time of the medical she was on leave and not experiencing stress. However, she did acknowledge that had she experienced stress at other times she would probably not have mentioned it since it would have held up her discharge, could have jeopardised her lump sum under the Defence Force Retirement and Death Benefit scheme, and possibly her transfer into the Australian Public Service as well.
30. Ms McKenzie also acknowledged that in a Defence Annual Health Assessment form dated 6 April 2004, the answer ‘No stress at present’ in a box beside the ‘Stress or mental health’ entry was given in the context of that medical which was focusing on her left knee and she had assumed that the questions only related to stress in relation to her left knee. She pointed out that it was not her writing and the answers had been completed by someone else having questioned Ms McKenzie.
31. Ms McKenzie agreed that in mid 2005 she was broadly capable, from a psychiatric perspective, of doing the job at DMO but that she was under stress due to the number of hours she was working, and it also distressed her when she went part-time in December 2005 because she felt she was letting down her colleagues. She said about her failure to get promotion that ‘I was devastated because … I had been deemed partially incapacitated for work due to two separate injuries and I didn’t want to believe I couldn’t keep going’. She also said she was worse after her knock back for promotion in 2007 than she could ever recall, psychiatrically speaking. It was a very distressing incident from which she had not recovered. Partly for those reasons and partly because of her physical conditions she said she could not work. In her current state of mind, even without her physical conditions, she said she could not return to employment.
32. Ms McKenzie denied that she was trying to influence the findings in reports Dr Mickleburgh, Dr Farnbach and Dr George by writing to correct aspects of their reports because she feared she would otherwise not get compensation. When asked why she had not told a complete story at each of the consultations with these medical practitioners, Ms McKenzie variously ascribed the reason to her ‘state of mind’, to the ‘shortness of the time for the consultation’, and also ‘when you have so much going on inside you want to get things out, just to have someone to listen to you, to get that release’.
Medical evidence
33. Dr K Muirden, a consulting rheumatologist, provided a report on 24 April 2006, a supplementary medical report on 30 June 2006, and a further medical report on 17 April 2007. In his April 2006 report he said that Ms McKenzie’s shoulder bursitis and her lateral epicondylitis have ‘been contributed to significantly by workplace activities [with the DMO]’. He refused, for lack of expertise, to comment on whether Ms McKenzie had a more widespread pain syndrome that would be contributed to by a depressive illness.
34. In his report of 30 June 2006, Dr Muirden said Ms McKenzie's cervical and lumbar spondylosis conditions were work-related. In his 17 April 2007 report he noted that there had been an unsuccessful claim for depression, date of injury being 1 January 2000. He confirmed that Ms McKenzie suffered an injury to her left wrist during Army service. However, he said there was no reference to an injury to her shoulder or ‘lateral epicondylitis’ during Army service. He stated that the two conditions he had diagnosed on 26 April 2006, were not influenced by the conditions reported during Ms McKenzie’s employment with the Australian Army, and resulted purely from employment factors with the DMO.
35. Dr Inglis Howe Synnott, consultant psychiatrist, in a report of 4 April 2006, said Ms McKenzie had told him that in July of 2005 she developed various physical symptoms which have continued and that ‘according to Ms McKenzie, following the development of her physical symptoms [in July 2005], she subsequently developed a range of psychological symptoms’. She had also reported that her psychological symptoms became worse when her duties were changed at work in October 2005. He quoted her as saying: ‘I feel as though I’m letting them down’ (her fellow work colleagues), ‘I’m not used to not working and it’s been hard accepting that’, ‘little things upset me more than they used to’, and ‘I don’t feel adequate any more to do things’. He noted she had said she suffered from depression, low mood, tearfulness, anger (particularly if she doesn’t take her medication), reduced sleep, intermittent thoughts of suicide, impaired concentration and memory, loss of motivation and interest, and having 'less joy in her life’.
36. He diagnosed adjustment disorder and stated that: ‘The psychological symptoms appear to be a reaction to the impact of her physical symptoms on her life at home and work, and the fact that she had to reduce her work hours and duties’.. He commented: 'there appears to be a connection between Ms McKenzie’s employment with the Defence Materiel Organisation and the subsequent development of the physical symptoms and then the secondary development of the psychological symptoms’. He denied that there were ‘factors outside [her] employment that have significantly contributed to the development of her psychological symptoms’ and commented that ‘the physical and psychological symptoms … have continued to the present day’. He could not determine whether the psychological symptoms were permanent given they had only been around, in his view, for six months and were not stable.
37. Dr Andrew Lark, occupational physician, in a report of 7 December 2006, said: ‘Ms McKenzie appears at the current time to be caught up with a number of health issues, mainly relating to her past military service’. He concluded, however, that she 'remains … fit for office work, within … restrictions’ and ‘It is obviously hoped that in the longer term she will be able to get back to fulltime work’.
38. Dr Tim Watson, her treating general practitioner, indicated that Ms McKenzie sees him frequently for regular cortisone injections for pain, sees a chiropractor twice weekly, takes an anti-inflammatory medication, and is also on an anti-depressant, Efexor, at maximum dosage of 300gm a day. He had recommended the anti-depressant at a consultation on 13 December 2005 where he stated:
During this consultation Ms McKenzie was very upset and clearly exhibiting depression and exhaustion. I indicated to her that she had a combination of severe permanent physical injury which was impacting heavily on her mental health. She had a very strong work ethic but I indicated that her injuries were so severe that her work situation had to change. … She was reluctant to change her work situation and to go on Efexor (anti-depressant) but at the end of the consultation agreed to this advice.
39. In a report of 23 February 2006, in response to a request from Comcare, he noted that from mid 2005 Ms McKenzie had developed ‘a very tight neck and upper back with an associated burning ache, neuropathic pain, especially the left arm, poor sleep, low moods, irritability, fatigue and intense cervicogenic headaches [as well as] increasing pain to her bilateral elbows’.
40. On 28 June 2007 Dr Watson completed a claim for permanent impairment for Ms McKenzie's accepted condition of adjustment disorder. He recommended treatment by a psychologist, but said it was difficult to determine the extent of the impairment and that he could not determine whether the condition was permanent.
41. On 18 September 2007 and on 18 January 2008, Dr Watson provided medical certificates that Ms McKenzie was not fit for work and diagnosed depression, the major cause being her ‘occupational overuse syndrome and military service’.
42. An extract from his clinical notes dated 28 September 2007 starts: ’applied job she did not get’ and then chronicles Ms McKenzie’s history and complaints about ‘lack of transparent selection’ on previous occasions, causing ‘a lot of heartache’. In a letter to the rehabilitation section of DMO on 11 October 2007, Dr Watson noted that the depression was ‘triggered by events whilst being in the military as well as her current APS service’. In a letter of 11 January 2007 and a supplementary report of 16 February 2009 Dr Watson noted ‘it is the military service solely that made this lady vulnerable and susceptible to incapacity/invalidity. … No other outside factors can be implicated in the medical deterioration of Ms McKenzie’.
43. In evidence to the Tribunal, Dr Watson said that Ms McKenzie’s failure to get a promotion was the trigger for her severe psychological reaction. Her condition was like a ‘time bomb waiting to explode’. The factors, according to his evidence, leading to this situation were her perception of a long history of discrimination, her physical injuries, her depression, all of which had developed prior to her transfer to DMO in 2005. He noted that Ms McKenzie was fine for the first few months at DMO but she was experiencing a high intensity workload, which, because of her stoicism and work ethic, she tried to ignore. She had no effective treatment for depression until the end of 2005. She also experienced a high degree of pain at multiple trigger points.
44. He said he had diagnosed Ms McKenzie’s psychological symptoms when he first saw her in August 2005, but did not record it till November 2005, probably because of the predominance of her physical symptoms. He first prescribed anti-depressants in December 2005. By July 2007 Ms McKenzie was working long hours and was under stress which he again detected in her consultation in August 2007. He said in evidence: ‘both the chiropractor and I were concerned but at that stage, there was no need for treatment. However, she was worse in September 2007 and rang me from home on a couple of occasions. Her pain was worse. On 18 September 2007 she was very upset suffering physically and mentally and too upset to come in.’ Dr Watson consequently saw her on 28 September 2008.
45. He acknowledged that his notes on the 18/19 September did not record Ms McKenzie’s knee giving way. However, he said that the events at her workplace were so devastating psychologically that she may not have told him in the telephone call. She had been working full-time prior to then against his and other specialists, advice. He acknowledged that at the 28 September 2007 consultation she was upset at not getting the job but that this was the final event in a long history of adverse events. His opinion was that her health was going to fail, whether in September 2007 or January 2008. Her injuries would not have allowed her to continue to work full-time for any length of time. The failure to get the promotion was the ‘final nail in the coffin, but only one nail’.
46. Prior to September 2007 he said she was not incapacitated for work by her psychological state in part because she was on 150g of Efexor, a very effective anti-depressant, which kept her functioning effectively. However, her periods of wellness were unpredictable. If she was sleeping well, maintaining her medication, and her pain was not troubling her she was fine, but if one of those deteriorated, so would she.
47. Dr R Farnbach, consultant psychiatrist, in his report of 10 December 2007 diagnosed severe depression which disabled Ms McKenzie from working and at that time, also from undertaking rehabilitation. However, he believed she would be able to return to work in three to twelve months’ time. He noted that she had first developed symptoms in 1998, that these symptoms persisted, and in 2005 she sought treatment. In his opinion her depression was either a new condition or an aggravation of her former condition, but it was work-related. He also said that she became ‘acutely upset’ and went off work after hearing about her failure to be promoted in September 2007.
48. Dr W Knox, consultant psychiatrist, in a report of 2 October 2007, concurred in the diagnosis of Ms McKenzie's long-term condition being an adjustment disorder with depressed mood, a condition which he believed would continue and was permanent and he did not think a counselling program would change her condition. He expressed the opinion that this longer term condition ‘has arisen out of the demanding and stressful Army workplace …particularly in recent years with the impact of her declining physical health, and the demands of her Military Liaison officer duties in 1998 and 1999’. He noted that her condition became significant during the final years of Army service, but because of her stoical nature and the stigma attached to psychological injuries in the Armed Forces, she did not report the condition until mid 2005. He assessed that she met the 10% level of permanent impairment according to Table 5.1 of the Guide.
49. He conceded that her ‘recent job disappointment accounts for the aggravation of her depressed mood’ but said it ’is unrelated to the pre-existing chronic mood disorder which has existed, with various degrees of severity, for several years now’. In evidence to the Tribunal he said he was aware of her long history of stress events and the promotion issue in September 2007 was only one more setback. He said: ‘it was impossible to isolate the event’ of the promotion and to say that was the only reason for her condition. He diagnosed her more recent condition as meeting the diagnostic criteria for Adjustment Disorder with Depressed Mood but said ‘this is likely a passing phase’.
50. He said in evidence that it was possible for people with depressed mood to continue in employment for many years, especially with the use of modern anti-depressants like Efexor. He also maintained that her failure to report her psychological condition until November 2005 was consistent with having an ongoing condition. He noted that people are reluctant to voice concerns about their mental health because it may sabotage their career, especially in the Army. In Dr Knox’s experience in the RAAF in the 1960s, there was a black mark against a person if they mentioned psychological difficulties. He also said people often have a good capacity for denial, particularly when the psychiatric illness may be evolving. The severity of the symptoms may depend on a constellation of events. Physical difficulties also contribute. He noted her report that although in the past she had drunk alcohol to excess, in recent years she only drinks spirits several nights per week, usually to help her sleep or to help with an especially troubled mood.
51. Dr Walter Mickleburgh provided a report of 17 May 2007 which stated:
The Adjustment Disorder with depression was, among other factors, predisposed to by pain and disability from numerous joint injuries which were caused by physical training exercises which were a compulsory part of her duty. The depression was precipitated by distress caused by acting as case worker for families of servicemen who had died. (emphasis by author).
52. Dr Mickleburgh noted other events in Ms McKenzie’s life which had predisposed her to depression included being orphaned at age 14, placed in a foster home until she migrated to Australia, her elder daughter having cystic fibrosis, her daughter’s partner committing suicide in December 2003, and a nephew also committing suicide, and her husband suffering a whiplash injury in 2006 and temporary paralysis of his arms and legs in 2007.
53. In a further report of 23 June 2008 following his examination of Ms McKenzie and having reviewed the existing medical reports Dr Mickleburgh updated his previous report of May 2007. He said Ms McKenzie’s adjustment disorder with depressed mood, chronic was: ‘Reactive to multiple joint pain together with feelings of disappointment, unfairness and rejection at failure to win promotion’ and despite her other vicissitudes, her depression remained ‘a plausible reaction to the workplace stress and failure to gain promotion’. He noted that on 18 September 2007, on hearing the news about her failure to obtain a promotion, Ms McKenzie ‘broke down into uncontrollable weeping, which progressed to major depression’. He considered her ‘orthopaedic and psychiatric conditions’ had not yet stabilised and recommended intensive cognitive therapy. He concluded her depression emerged during her Army service, but was reinforced when she joined DMO and was, ‘as she perceived it, subjected to bullying and discrimination’. He considered she would, in time, be capable of returning to the workforce and was entitled to ongoing medical treatment for her conditions.
54. In a supplementary report of 22 April 2009, Dr Mickleburgh updated his report on her psychiatric condition and said:
I do not consider that there was any undue emphasis on Ms McKenzie’s loss of promotion as a factor in her adjustment disorder with depressed mood. It was one significant factor in a multi-causal condition…
A pre-disposing factor was the chronic pain and disability from multiple joint injuries imposed by her army activity. The precipitating cause was the distress caused by her duty to support and provide grief counselling for bereaved army families.
Perpetuating factors were her daughter’s condition of cystic fibrosis, the suicide of her prospective son-in-law, her husband’s ill health and mortgage debt. The recent aggravating cause was the workplace conflict following her transfer to the civilian public service.
55. In evidence to the Tribunal Dr Mickleburgh said it was common to see employees with depressive disorders still working. It was not possible to say how long such persons could continue in employment. In response to questions about whether it was believable that someone could have depressive symptoms for seven years without mentioning them at work or to doctors, Dr Mickleburgh said such a history fits with his records and was not uncommon. He also said her history of depression was consistent with her conditions of chronic pain and her stoicism. He noted that a catastrophic response to a disappointment is not inconsistent with stoicism but he could have expected a better recovery. However, he conceded that depression can be long-standing. Previous similar events in her employment could have given an added emphasis to the events in September 2007. He also noted that serving officers do not report depression.
56. Ms T Papantoniou, psychologist, said in her report dated 26 August 2008 that Ms McKenzie told her she was plagued with ‘thoughts of worthlessness, helplessness and hopelessness. … She lacks trust in others and is apprehensive about getting close out of fear of disappointment’. The report noted that Ms McKenzie met the criteria for: ’Adjustment Disorder with Mixed Anxiety and Depression, Chronic’. Her condition, Ms Papantoniou said, was:
Reactive to multiple joint and tissue injuries and concomitant pain, as well as a number of cumulative perceived negative experiences over a number of years, plus the added stressor of being passed over for promotion due to her perceived inability to maintain a level of competitiveness in the workforce.
57. In her view Ms McKenzie’s condition ‘is strongly related to the physical injuries she sustained in Military service’.
58. Dr Hugh Veness, consultant psychiatrist, provided a report dated 28 November 2008. He examined Ms McKenzie and commented on reports of Drs Farnbach, Knox, Mickleburgh, and Ms Papantoniou. His diagnosis was (Chronic) Major Depressive Episode with partial response to treatment and he rejected the alternative diagnosis of adjustment disorder with depressed mood. He said she met all nine of the criteria for chronic major depression. He considered her condition was permanent and she was not likely to be fit for employment in the foreseeable future. His report noted she was drinking alcohol at a harmful level. He said ‘The genesis of her depressive disorder arises from both physical and emotional trauma sustained whilst employed in the Australian Army’. In evidence to the Tribunal he noted her strong ethical views of soldiering on because she did not want to let people down. However, he said her body was letting her down and these conflicting pressures led to her depression.
59. When asked at the hearing about the significance of the fact that on 6 previous occasions until November 2005 Ms McKenzie had experienced no symptoms like those she had on 19 September 2007, Dr Veness said this would be consistent with the events of 17-18 September being ‘the straw which broke the camel’s back’. In his view, the DMO employment exacerbated the pain in her arms and led to a worsening of the depression. He also agreed that employment conditions with DMO could have escalated her psychological condition into severe depression. He said with patients who have an adjustment disorder or low grade depression which is not incapacitating for employment, it is often difficult to identify when such a person may become incapacitated. Heightening of pain can lead to the worsening of depression which is already in existence. Dr Veness said he was surprised to hear that Ms McKenzie had several conditions which were permanent impairments and had been receiving compensation for others since he would think such a person could not still work. However, he said a particularly conscientious person could do so and Ms McKenzie was in that category.
60. Dr G Eaton, occupational physician, in a report dated 31 August 2008 noted Ms McKenzie’s physical injuries, particularly her lumbar spine, left wrist and right knee, and that she would require further orthopaedic assessments and probable surgical treatment. He said that she had reported being affected ‘quite severely both psychologically and emotionally and this could have a significant bearing on her capacity for activities in general’. He concluded ‘when all the orthopaedic intervention has been completed it is possible that a multidisciplinary holistic cognitive behavioural pain management programme would still be helpful’.
61. Dr K Adam, a specialist in occupational medicine, provided two reports. In his 21 April 2008 report he said of Ms McKenzie’s current state of health that she ‘is severely distressed by psychological illness’ and was suffering from major depression. He said the condition had probably been present since 1998, although treatment was not sought until 2005. The condition and her mental state prevented her returning to work and he could not predict when or if she could re-enter the workforce. He considered she ‘urgently needs specialist psychiatric care’. He indicated ‘that at least a significant proportion of the current disability related to depression which commenced during her Army service’. He denied she could participate in a rehabilitation program.
62. In a follow up report of 16 September 2008 Dr Adam said Ms McKenzie continued to suffer symptoms from her multiple physical conditions, her experience of which was ‘intensified by her psychological state’. He believed she also continued to suffer from major depression although it had improved since his last assessment on 17 March 2008. These conditions meant he could not see her returning to work in the foreseeable future. Nor could he see that any treatment or rehabilitation program would improve her condition.
63. Dr G George, consultant psychiatrist, in a report of 11 May 2009, diagnosed alcohol abuse/dependence which he said he believed had been ongoing for several years. At the same time, he noted in his report that Ms McKenzie had said she was only consuming alcohol on a daily basis since she stopped work, and the results of the blood test he took on 4 May 2009 were within normal levels. In a supplementary report of 2 July 2009, he said that in his previous report he ‘endeavoured to establish an argument that Ms McKenzie suffered from significant alcohol abuse and at times, alcohol dependence … this specific factor would have been a significant contributor to her leaving work when she did’. He did note, however, that Ms McKenzie ‘appeared to have arrived at a point where she could not cope, for whatever reason’.
64. Dr Z Zsadanyi, consultant psychiatrist, in his report on 31 July 2009, expressed the opinion that it was Ms McKenzie’s Army-related psychological injuries that resulted in her impairment. He diagnosed the condition as chronic adjustment disorder with depressed mood, and assessed the level of impairment under the second edition of the Guide, Table 5.1 as 10 percent. He considered that the ‘duration of impairment commenced during the course of 2007’, but in his opinion it was Ms McKenzie's 'Army-related psychological injuries that resulted in impairment', that she requires ongoing treatment with anti-depressant medication, that the likelihood of improvement was minimal, and that she had undertaken all reasonable rehabilitative treatment. He did not consider further treatment would result in substantial improvement to the impairment level of her condition.
65. Dr Zsadanyi also referred to the report by Dr George and during his examination of Ms McKenzie questioned her based on that report. In her responses, Ms McKenzie said that over the last six months she had only drunk two to three times a week with a maximum of two standard drinks on those occasions. She maintained that since 22 June 2009, and in future she would only have alcohol on special occasions. She said there had been periods when she over imbibed and said these only lasted about one week at a time. She also says she does not keep alcohol in the house and does not consider herself an alcoholic.
66. Dr John Saboisky’s report dated 22 July 2009, said Ms McKenzie suffers chronic complaints of pain and from a major depressive disorder, which he did not consider would improve in the foreseeable future. As a consequence he said Ms McKenzie believes she cannot work. He did not believe her mood would improve until the Comcare claim was resolved. She was not fit to undertake a rehabilitation program or a graduated return to work.
Consideration
67. There are two principal issues: whether Ms McKenzie's adjustment disorder was no longer compensable because it had been overtaken by the injury, namely a disease, being the adjustment disorder, which she suffered on 18 September 2007; and whether Ms McKenzie’s adjustment disorder with depressive mood is permanent and meets the 10 percent threshold in Table 5.1 of the Guide?
68. Counsel for Ms McKenzie maintained that the events of 18 September 2007 had an emotional impact on Ms McKenzie but were not an ‘injury’. If that contention is not accepted, the claim is that the events were an ‘injury’ being an ‘aggravation’ of a pre-existing injury, namely, a 'disease'.
69. Comcare contends that the events of 18 September 2007 were a new injury and hence there is no liability in the Commission because Ms McKenzie was at that time employed by the DMO. Moreover, if the condition is a new injury, Comcare contends it is not compensable being excluded under section 5A(2) of the Act as 'reasonable administrative action', namely, 'anything reasonable done in connection with the employee's failure to obtain a promotion'.[2]
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2)(f).
70. To be an 'injury' the condition suffered by Ms McKenzie must be either a 'disease', namely an 'ailment' or an aggravation of an 'ailment'. An ‘ailment’ means ‘any … mental ailment, disorder, defect of morbid condition (whether of sudden onset or gradual development)’[3]. Liability will only arise for an ‘injury’ if ‘the injury results in death, incapacity for work, or impairment’.[4] ‘Incapacity for work’ is defined in section 4(9) of the Act. An ‘impairment’ means ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’.[5]
Was the condition suffered on 19 September 2007 a new 'injury' or an aggravation of an existing injury?
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1).
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14(1).
[5] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1).
71. On 31 May 2007, the Commission accepted liability for a condition described as a disease, namely, an adjustment disorder with depressed mood, backdated to 12 January 1998. Ms McKenzie subsequently experienced the events of 18 and 19 September 2007 which are the subject of this claim. Following those events, Ms McKenzie has not returned to work, suffering from what is described by Dr Watson as depression, and by Drs Farnbach, Veness, Adam, Saboisky and Knox as severe depression, by Drs Synnott, Mickleburgh, Zsadanyi, and Ms Papantoniou, as adjustment disorder with depressed mood.
72. The Tribunal finds that whether the condition manifesting on 18 and 19 September 2007 is described as severe depression, or adjustment disorder with depressed mood, the condition is clearly accepted by the psychiatrists who provided reports and gave evidence, apart from Dr George, as classifiable under the American Medical Association's Diagnostic and Statistical Manual of Mental Disorders (4th edition) (DSM IV), and would meet the test of being 'outside the boundaries of normal mental functioning and behaviour'.[6] On that basis, the Tribunal finds that Ms McKenzie did suffer an 'ailment', that is, a 'mental disorder, defect or morbid condition (whether of sudden onset or gradual development)'. Her condition in September 2007 was, therefore, a 'disease' and hence an 'injury' for the purposes of sections 5A and 5B of the Act.
[6] Comcare v Mooi (1996) 69 FCR 439 at 444 (per Drummond J).
73. The next issue is whether the ailment is a new disorder of sudden onset or an aggravation of an existing condition. It is clear that the condition which arose on 19 September 2007 was of an intensity Ms McKenzie had not previously experienced. The issue is whether it is a new injury, namely, major depressive disorder, or an aggravation of an existing ailment, namely, an adjustment disorder.
74. In examining the expert medical reports, the Tribunal does not accept the view of Dr Synnott that Ms McKenzie's adjustment disorder was solely due to her employment with DMO. Dr Synnott based his report on the history provided by Ms McKenzie, namely, that the condition arose out of physical symptoms which emerged in 2007. On the evidence provided to the Tribunal, that was a misleading history and the Tribunal prefers the views of other psychiatrists which were based on a more complete history of Ms McKenzie's conditions.
75. Dr Watson, her treating medical practitioner, in his written and oral evidence maintained the view that Ms McKenzie's depressive condition was due to her overuse symptoms and events on military service. He said the severe reaction in September 2007 was a 'time bomb waiting to explode', that is, it was the culmination of a history which started in the armed services. Dr Farnbach said the condition could either be a new injury or an aggravation of an existing injury. Dr Knox said 'her depressive condition has been aggravated by the recent workplace circumstances' and in his opinion, the extreme form of a major depressive disorder was a passing phase while Ms McKenzie’s underlying adjustment disorder would continue.
76. Dr Mickleburgh considered Ms McKenzie's September 2007 psychological episode was 'one significant factor in a multi-causal condition' and that the adjustment disorder emerged during army service but was reinforced when she joined DMO. That view was shared by Ms Papantoniou. Dr Veness agreed that the promotion failure was simply the 'straw that broke the camel's back' and that her DMO employment had simply exacerbated her condition. Dr Zsadanyi said it was Ms McKenzie's ‘Army-related psychological injuries that resulted in her impairment'. Dr Eaton concurred that Ms McKenzie's multiple physical conditions affected her psychologically and emotionally. By implication his view is that the events of September 2007 were triggered by a combination of physical and emotional factors including those arising during military service. Dr Lark said Ms McKenzie's health issues 'mainly relat[ed] to her past military service'. Dr Adam said 'at least a significant proportion of the current disability related to depression which commenced during her Army service'.
77. On balance, the Tribunal finds, based on the predominant view of the medical experts and on the oral and written evidence, that Ms McKenzie's psychological reaction in September 2007 was the culmination of a long period of contending with pain and disability from her numerous physical difficulties, as well as various disappointments in her employment, including failures to obtain promotion. The majority of the physical conditions arose during military service but others during employment with DMO. Another cause of her psychological condition was her work with DCO. The September 2007 reaction was not an isolated and discrete injury, but was an exacerbation or aggravation, that is an acceleration or recurrence, of her previous conditions.[7] That psychological reaction, being an aggravation of an existing adjustment disorder, will henceforth in these reasons be described as an adjustment disorder.
Was the aggravation contributed to, to a significant degree, by employment?
[7] Asioty v Canberra Abattoir Pty Ltd (1989) 17 CLR 533; Casarotto v Australian Postal Commission (1989) 86 ALR 399.
78. The next issue is whether this aggravation was 'contributed to, to a significant degree, by the employee's employment by the Commonwealth'.[8] What amounts to 'a significant degree' requires the taking into account of not only employment related matters, but also any predisposition of the employee to the aggravation, activities not related to employment and any other health-related matters.[9] The 'contribution to a significant degree' requires that the contribution must be 'substantially more than material'.[10]
[8] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).
[9] Id s 5B(2).
[10] Id at s 5B(3). See also Comcare v Sahu-Khan (2007) 156 FCR 536.
79. Ms McKenzie's history records a variety of circumstances which may have had an impact on her emotional state. These included being orphaned at a young age, coming to Australia as a teenager with one brother and having to find work, having a daughter with cystic fibrosis, a husband who has had periods of being unwell and has been retired on medical grounds, difficulties for Ms McKenzie's marital relationship because of her physical and psychological conditions, financial difficulties, and having to deal with the impact of the suicide of her daughter’s partner and of a nephew.
80. Despite these factors, on the evidence, Ms McKenzie’s employment was a major contributor to her psychological condition. A thread running through Ms McKenzie's history is that work has always been a high priority and gave her a sense of purpose. Her nearly 30 years in the Army attest to that commitment. It was disappointments in relation to aspects of her employment including encountering what she perceived to be gender-based discrimination, and exclusion by the ‘mate’s club’, as well as failures to obtain promotion which have been pivotal in her psychological conditions.
81. Dr Synnott denied that matters outside Ms McKenzie’s employment significantly affected her psychological condition; Dr Lark said her health issues 'mainly relat[ed] to her past military service'; Dr Watson said 'it is the military service solely that made this lady vulnerable and susceptible to incapacity/invalidity'; Dr Farnbach said her depression was work-related; Dr Knox said her 'recent job disappointment accounts for the aggravation of her depressed mood' but this was 'only one more setback in the workplace'; Dr Mickleburgh said that despite her other vicissitudes, Ms McKenzie's depression was 'a plausible reaction to the workplace stress and failure to gain promotion'; Ms Papantoniou said Ms McKenzie's condition 'is strongly related to the physical injuries she sustained in military service'; Dr Veness said 'the genesis of [Ms McKenzie's] depressive disorder arises from both physical and emotional trauma sustained whilst employed in the Australian Army'; Dr Adam said 'at least a significant proportion of the current disability related to depression which commenced during [Ms McKenzie's] Army service'; and Dr Zsadanyi said it was Ms McKenzie's Army-related psychological injuries that resulted in her impairment.
82. These views agree that Ms McKenzie's condition predominantly arose as a result of work-related vicissitudes. In the face of this almost universal view of the medical specialists who examined Ms McKenzie or who commented on her case, and despite the other factors which may have had a role in her condition, the Tribunal finds that her adjustment disorder is contributed to, to a significant degree, that is, to a degree that is that is substantial, by her employment.
83. This finding and the evidence on which it is based also supports the related finding, namely, that it is principally Ms McKenzie's Army-related activities, rather than her employment with DMO, which were causal of her condition. This finding is based in part on the fact that Ms McKenzie's psychological condition has been linked to her physical conditions most of which arose during Army service. Five of those conditions were recognised as leading to permanent impairment. Although Ms McKenzie noted that the shooting pain in her arm was new since she arrived at the DMO, and Dr Muirden says that the injury to Ms McKenzie’s shoulder and her lateral epicondylitis were not Army-related, the balance of her physical conditions and her ongoing psychological condition did originate while Ms McKenzie was in the armed forces.
84. Ms McKenzie said she left the armed services because she could no longer sustain the rigorous level of physical fitness which is a pre-requisite to continuing service and promotion. Her physical disabilities, alongside her disappointment with her lack of promotion, and her period of stressful service as a Military Liaison Officer, were factors in the development of her continuing depressive disorder. In summary it was, in the words of Dr Mickleburgh, the 'chronic pain and disability from multiple joint conditions imposed by ... army activity' which resulted Ms McKenzie leaving the armed services.
85. During the hearing, several of the medical experts were questioned as to the likelihood that Ms McKenzie would have suffered from an adjustment disorder for about seven years before seeking assistance. Dr Mickleburgh said it was not uncommon for patients with low-grade depression to continue in employment. For Ms McKenzie to do so was, he believed, not surprising given her stoicism, a quality commented on by several of the experts including Dr Veness, Dr Knox and Dr Mickleburgh and was evident to the Tribunal from Ms McKenzie's employment history.
86. The explanation given by Dr Farnbach in response to that question was that people are reluctant to voice concerns about their mental health because it may sabotage their careers, particularly in the armed forces, a view supported by Dr Mickleburgh and Dr Knox. Dr Farnbach also explained that it is possible for people with depressed mood to continue in employment for many years, especially with use of modern anti-depressants like Efexor. The Tribunal notes that Ms McKenzie was not prescribed Efexor until December 2005, so the medication was not assisting her to maintain her emotional equilibrium during her Army service.
87. The Tribunal also notes, however, that Ms McKenzie had acknowledged her psychological condition while on service. Dr Farnbach refers to her symptoms of depression and anxiety, including severe insomnia, ruminating about the suicides and restlessness, symptoms which he said persisted. Dr Watson reported Ms McKenzie as telling him about her stressful experiences as a Military Liaison Officer with the Defence Community Organisation in 1999 and said that 'during that time she became increasingly anxious and depressed, suffered from disturbed sleep, nervousness and worry. She cried at home and her distress was reportedly noticeable to some work colleagues. She did not seek any professional treatment at that stage'.
88. The Tribunal is also aware that Ms McKenzie requested she be removed from her DCO post after 18 months when a normal posting is for two years, suggesting she was concerned about the impact of the posting on her psychological health. In addition, liability for Ms McKenzie's adjustment disorder backdated to 12 January 1998 continued unabated until November 2008, indicating an acceptance on the part of the Commission that she had adjustment disorder symptoms throughout her Army service and until the end of 2008. There is also a reference in Dr Muirden’s report to Ms McKenzie making an unsuccessful claim for depression, date of injury 1 January 2000, during her Army service. So there is evidence that Ms McKenzie’s psychological condition was continuing, and medical expert evidence that it is not unusual, particularly in the armed services, for people to both manage and seek to conceal low level symptoms of psychological disorder.
89. On balance the Tribunal is satisfied that Ms McKenzie's depression did continue formally undiagnosed until after she had left the Army. Her failure to report the condition was in part due to the stigma attached to reported psychological problems in the armed forces, and Ms McKenzie's strong sense of duty, which precluded her from seeking assistance for her condition earlier. A further incentive to reporting her condition post-service was that prior to starting with DMO, Ms McKenzie was receiving medical treatment for her conditions which was being funded by the Army. This medical support reduced the pain she was experiencing which in turn reduced the likelihood that pain from her physical conditions would lead to emotional distress. In those circumstances, it was not surprising that there was a resurgence of her psychological symptoms.
90. This finding is reinforced by the facts that for a period prior to her compensation applications being accepted, and while she was working long hours at DMO, Ms McKenzie had to forego medical treatments. This had a negative effect on her physical conditions, led to heightened pain from her physical disabilities, and increased her stress. In these circumstances, it is not surprising that Ms McKenzie should seek treatment for her psychological condition in December 2005 when she was prescribed anti-depressant medication.
91. In summary, the Tribunal is satisfied that Ms McKenzie's severe depressive condition in September 2007 was an aggravation, that is, an acceleration or a recurrence of her pre-existing adjustment disorder, a condition which was due predominantly to her service in the Australian Army.
92. No evidence was provided to enable the Tribunal to attribute a proportion of the condition to DMO and a proportion to the Commission. Should the Commission wish to do so, it will need to obtain evidence of the respective proportions of the incapacity.[11]
Was the aggravation of the disease 'suffered as a result of reasonable administrative action' namely, 'anything reasonable done in connection with Ms McKenzie's failure to obtain a promotion'? (emphasis supplied)
[11] Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-4 (per Kirby P, Sheller JA and Powell JA); Accident Compensation Commission v C E Heath Underwriting & Insurance (Australia) Pty Ltd (1994) 121 ALR 417.
93. The issue is whether the cause of Ms McKenzie's condition was her failure to obtain a promotion or whether the condition was multi-causal and the promotion failure only played a less significant part overall in the resulting condition. It is necessary to consider what is meant by ‘suffered as a result of’ in section 5A(1). The Tribunal adopts with gratitude the findings of Deputy President Jarvis in Re Carpenter and Comcare[12] as being an appropriate interpretation on this issue. The relevant reasoning is as follows:
The SRC Act is drafted in such a way that substantive provisions as to liability to compensation or exceptions from such liability are included in the definitions of ‘injury’ and ‘disease’. This makes the construction and application of the SRC Act more difficult (see the criticism of such drafting in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, 2006) at [6.63]).
Recent decisions of the High Court of Australia make it clear that legislation must be interpreted to give effect to the intention of Parliament, and whilst the best guide to that intention is to look at the words of the Act in question, those words must be construed in their context and so that the Act is consistent internally.
If the interpretation of ‘disease’ and the exception to the definition of ‘injury’ is approached in this way, I think that a requirement of a ‘material contribution’ should be implied into the exceptions to the definition of ‘injury’, since otherwise the exceptions to the definition would be wider than the primary requirements of the definition of ‘disease’, which is a subset of ‘injury’. This would be incongruous, and would not, I think, accord with Parliament’s intention. I accordingly conclude that on the proper interpretation of the definition of ‘injury’ that definition only arises where the excepted events contribute in a material way to the disease in respect of which compensation is claimed. …
I think my above conclusion is also supported by the consideration that the SRC Act is remedial legislation, and where two constructions are possible, that which is favourable to the worker should be preferred: Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 at 544. Issues of causation have long caused difficulties in many areas of the law, and various tests of causation have been formulated, taking into account the context in which the issue has arisen, considerations of policy and value judgments, and ultimately the need to arrive at a just and reasonable outcome in particular cases. The expression ‘as a result of’ in the exception to the definition of ‘injury’ does not have a precise meaning, just as the concept of causation in the law is flexible. The expression ‘as a result of’ is capable of denoting various degrees of relationship between the injury in question and the excepted events. I consider that it should be construed in a way that is beneficial to the injured employees.[13]
[12] Re Carpenter and Comcare [2010] AATA 62.
[13] Id at [102]-[105].
94. The Tribunal finds applying this reasoning to the words in the current exclusionary provisions that the events of September 2007 were not the substantial cause of Ms McKenzie’s departure from the workforce. Rather they were, as the findings under paragraph 77 indicate, ‘only the straw that broke the camel’s back’.
95. It is clear from these reports that Ms McKenzie's condition is multifactorial. It is also clear that it is not easy to disentangle contributing factors. For example, no attempt was made at the hearing to allocate a percentage of impact from the physical conditions Ms McKenzie suffered on service and those which were arguably only attributable to her employment with DMO. Nor was there evidence of the degree of attribution of Ms McKenzie’s psychological condition of the underlying adjustment disorder as compared with the impact of the ‘breakdown’ in September 2007. Nonetheless, it is the Tribunal’s view on the evidence that the predominant proportion of her disabling conditions originated during her service in the armed forces.
96. That conclusion is based on the fact that although there were discrete causes for Ms McKenzie’s psychological condition, including the period of service in 1998-2000, and her disappointment at what she perceived as unfair practices at work, and her disappointments about her lack of promotions both during service and subsequently, Ms McKenzie's chronic pain from her physical injuries, on the medical evidence, plays a major part in that condition. It was acknowledgment of her physical deterioration which led Ms McKenzie to leave the armed forces, and ultimately, it was her knee giving way and Ms McKenzie’s ‘realization ... that [her] injuries were not getting better, but rather worse' which led to her breakdown. That has been borne out by the evidence which is that since she left work her physical conditions are getting worse. She has had surgery on her right knee, but has also had several falls and may have injured her right hip. The Tribunal notes in this context Dr Watson’s evidence that Ms McKenzie’s combination of conditions were ‘a time bomb waiting to happen’.
97. Given this evidence, coupled with the earlier evidence on aggravation, the Tribunal finds that the substantial cause of Ms McKenzie’s adjustment disorder was not the failure to obtain yet another promotion, but rather was the result of the cumulative effect of her physical injuries, her depression, and her disappointments in her employment.
Is Ms McKenzie’s adjustment disorder a permanent injury which meets the 10% threshold under Table 5.1 of the Guide?
98. Dr Synnott's view in his report of April 2006 was that Ms McKenzie's condition may not yet be permanent. However, as referred to earlier this view was coloured by his acceptance of her history that she had only begun to experience the symptoms in July 2005. As a consequence, it was his view that her condition had only been diagnosed for some six months or so and it was too soon to adjudge whether it was permanent.
99. Dr Lark said of her condition in December 2007 that she remained fit for work with certain restrictions and he 'hoped in the longer term she will be able to get back to fulltime work'. Dr Farnbach in December 2007 also indicated he believed she would be able to return to work in 3 to 12 months time. Dr Mickleburgh in his earlier 2007 report considered Ms McKenzie would, in time, be capable of returning to the workforce and was entitled to ongoing medical treatment. Dr Eaton, in his report of August 2008, concluded that Ms McKenzie would require further orthopaedic assessments and probable surgical treatment for her physical injuries and when these were completed, possibly a 'multidisciplinary holistic cognitive behavioural pain management programme would still be helpful'.
100. Dr Knox, who reported in October 2007, considered her condition was permanent and did not think a counselling session would change her condition. He assessed that she met the 10 percent level of impairment according to Table 5.1 of the Guide. Dr Veness too, in his report of November 2008, said her condition was permanent and she was not likely to be fit for employment in the foreseeable future. Dr Adam in his report of April 2008 said Ms McKenzie's major depression and her mental state prevented her re-entering the workforce and he denied that she could usefully participate in a rehabilitation program. Dr Zsadanyi in his report of July 2009 assessed her level of impairment as 10 percent under Table 5.1 of the Guide, and said that the likelihood of improvement was minimal and she had undertaken all reasonable rehabilitation treatment. Dr Saboisky in a report also dated July 2009 said Ms McKenzie suffers from chronic complaints of pain and from a major depressive disorder which he did not consider would improve in the foreseeable future. Nor did he believe she was fit to undertake a rehabilitation program or a graduated return to work.
101. The predominant view of the medical experts and particularly the most recent of the reports (particularly those of Drs Zsadanyi and Saboisky) are that Ms McKenzie’s condition is permanent, that is, is likely to continue indefinitely, and would not be improved by any rehabilitative treatment. In addition, the view of Dr Lark about Ms McKenzie’s ability to re-enter the workforce was contingent on the work involving suitable restrictions, including that she only work part-time, and the view of Dr Eaton about the rehabilitative value of a pain management program was expressed in a tentative manner. On balance the Tribunal finds on the evidence that Ms McKenzie’s condition is permanent.
102. The issue of whether Ms McKenzie’s condition meets the minimum threshold of 10 percent is more problematic. Only two of the specialists, namely, Dr Knox and Dr Zsadanyi, have made an assessment. The Tribunal considers this evidence is insufficient to enable it to confirm whether this assessment is correct. The Tribunal therefore remits this issue to the Commission for further assessments to be made.
103. The Tribunal sets aside the decisions under review and remits the final issue to the Commission for reassessment. Any further attribution of responsibility is for the parties to negotiate.
104. The usual order as to costs is to apply.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Dr M Miller AO, Member
Signed: ......................[sgd]............................................
C. Kocak, AssociateDate/s of Hearing 5 November 2009 - 6 November 2009, 18 February 2010 - 19 February 2010
Date of Decision 20 April 2010
Counsel for the Applicant Chris Ryan (in part)
Solicitor for the Applicant Lander and Co
Counsel for the Respondent Michael Snell
Solicitor for the Respondent Sparke Helmore Lawyers
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