McMillan v Comcare
[2010] AATA 628
•23 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 628
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2009/0179
GENERAL ADMINISTRATIVE DIVISION ) No 2009/2803
) No 2009/3780Re ERIC MCMILLAN
(No 2009/0179; No 2009/2803)and
ACT DEPARTMENT OF JUSTICE
& COMMUNITY SAFETY (2009/2803)Applicant
And
COMCARE
Respondent
DECISION
Tribunal
Professor RM Creyke, Senior Member
Date23 August 2010
PlaceCanberra
Decision
The Tribunal finds that, in relation to applications 2009/2803 and 2009/3780, the decision is set aside and substituted with the decision that it was his employment at DIAC rather than JACS which contributed to a significant degree to the aggravation of his symptoms. The Tribunal also sets aside the decision in application 2009/0179 and substitutes it with the decision that Comcare is liable to pay compensation from 4 April 2008 to 7 October 2008 inclusive.
........................[sgd]................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Incapacity payments and aggravation of injury – whether Mr McMillan’s condition was contributed to, to a significant degree, by his employment –which employer is liable for his condition – decision under review set aside and substituted
23 August 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member
1. Mr Eric McMillan is the applicant in proceedings 2009/0179 and 2009/3780. He is the third party in proceedings 2009/2803. The ACT Department of Justice and Community Safety (JACS) is the applicant in proceeding 2009/2803.
2. Mr McMillan suffered a compensable injury on 17 October 2005, later diagnosed as adjustment reaction with mixed emotional features. At the time, he was employed as an injury management adviser by what is now known as the Department of Immigration and Citizenship (DIAC).
3. Subsequently, on 12 March 2007, Mr McMillan obtained a position as a rehabilitation case manager with JACS. The nature of his work exacerbated his earlier condition and since 4 April 2008, Mr McMillan has been certified as totally incapacitated for work.
4. Comcare accepted he suffered a new injury on 4 April 2008, an ‘aggravation of major depression, recurrent episode’, while employed by JACS. Both Mr McMillan and JACS believe that liability for Mr McMillan’s condition should be attributed to his employment at DIAC, not JACS.
5. DIAC’s view is that Mr McMillan's condition resolved after he discontinued at DIAC and before he started at JACS and that DIAC, as a consequence, is not responsible for his current injury. Nonetheless, DIAC continued to pay his medical expenses for his adjustment disorder under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) until 16 October 2009.
6. The two decisions under review in the three applications are:
· The reviewable decision of 7 January 2009 (2009/0179) in which Comcare denied liability under section 19 of the Act for the period 4 April 2008 to 7 October 2008 for Mr McMillan’s condition of ‘adjustment reaction with mixed emotional features’.
· The reviewable decisions of 21 May 2009 (2009/2803; 2009/3780) which affirmed decisions of 25 February 2009 in which Comcare accepted liability for Mr McMillan under section 14 of the Act for aggravation of major depressive disorder, recurrent episode, sustained on 4 April 2008 while Mr McMillan was employed by JACS.
7. On 22 June 2009, JACS sought review by the Tribunal of Comcare’s decision that found liability for Mr McMillan’s ‘aggravation of major depressive disorder, recurrent episode’, sustained on 4 April 2008, is attributable to his employment with JACS (2009/2803).
8. On 10 August 2009, Mr McMillan also sought review by the Tribunal of Comcare’s decision that liability under section 14 of the Act, for Mr McMillan’s condition of ‘aggravation of major depressive disorder, recurrent episode’, is attributable to Mr McMillan’s employment with JACS (2009/3780).
9. The above applications were heard together with Mr McMillan’s application to the Tribunal, made on 13 January 2009, for review of Comcare’s decision that denied him incapacity payments under section 19 of the Act for ‘adjustment reaction with mixed emotional features’ (2009/0179).
Issues
10. The following issues were identified:
· What is the correct diagnosis of Mr McMillan’s condition?
·Whether Comcare is liable under section 19 of the Act to pay Mr McMillan incapacity payments for his accepted condition of adjustment reaction with mixed emotional features for the period from 4 April 2008 to 7 October 2008?
·Whether any such incapacity was contributed to, to a significant degree, by his employment with DIAC or JACS?
·Whether any such incapacity was an aggravation of his previously accepted condition arising out of his employment with DIAC; or
· Some other cause?
Background
11. Mr McMillan is a 62 year old man who has an accepted claim for adjustment disorder with mixed emotional features, deemed to have been sustained on 17 October 2005 while he was employed by DIAC. He had been employed by DIAC since March 2002.
12. Prior to his employment by DIAC, Mr McMillan had worked in several other Commonwealth agencies and an ACT agency. He sought psychiatric assistance in 1990 and was diagnosed with 'mild depression and stress related physiologic responses.'[1] This was a non work-related condition. He saw a psychiatrist, Dr Tony Lee, who referred to 'a history of occasional depression, alcohol abuse between the ages of 16 and 27, an anxious personality and a depressive state'.[2] He was prescribed a standard dose of 40g of Prozac daily. When his psychiatrist left Canberra, the medication was maintained, as needed, by Mr McMillan's general practitioner, Dr James Cookman.[3] Mr McMillan said in evidence that by taking that medication, prior to the circumstances at DIAC, he was 'going fine'.
[1] Report dated 18 July 1990, by Mr Ted Petroni, psychologist.
[2] Report dated June 1991.
[3] Dr Cookman's records indicate he was prescribed Prozac 'on a number of occasions in the period from 1998 to the time of his injury at DIAC.
13. In May 2005, Mr McMillan was managing the case of a fellow employee at DIAC who was in considerable distress. He intervened on her behalf with a senior officer of DIAC and recommended that the officer find work outside that Department. Following that opinion, in the report of Dr Graham George, consultant psychiatrist, who had examined Mr McMillan in connection with his claims, ‘[things] went downhill from … [Mr McMillan believed] there was a witch hunt against [him]’. Dr George reported Mr McMillan saying that several cases were removed from him, but ‘nobody told [Mr McMillan] what was wrong’. At the hearing, Mr McMillan confirmed he still held this belief. As a consequence, as Dr George recorded, Mr McMillan has ‘not been able to let go or move on’.
14. Following the incident in May 2005, on 5 August 2005 the Assistant Secretary of the Corporate Services Division convened a meeting with Mr McMillan. At this meeting she read from a paper that contained a number of allegations relating to issues of Mr McMillan's performance. Although she denied it was a performance review, and later supplied Mr McMillan with the paper she read from, he was not given an opportunity to respond to the allegations.
15. On 14 November 2005 Mr McMillan was transferred by DIAC to work in a detention centre where, he said, his work comprised of little more than photocopying. Mr McMillan was so demoralized by this work and what he perceived as an accumulation of negative incidents at DIAC that from 29 November 2005 he went on sick leave and remained off work for 14 months.
16. Subsequently, after Mr McMillan left DIAC, it was made clear that there were no positions for him in DIAC in his pre-injury case management role, although he was told he was free to apply for advertised vacant positions within DIAC. No explanation was given to either Mr McMillan or his rehabilitation adviser, Mr Harold Bilboe, a senior psychologist at Dysaran Consulting, for this refusal. DIAC provided no assistance to Mr McMillan to obtain another placement at DIAC.
17. In evidence at the hearing, Mr McMillan said that after he left DIAC he was 'very anxious, very depressed' and had 'physical symptoms ... stomach troubles and bowel problems ... apparently... associated with the depression that was resulting from what was going on at work'. On 30 November 2005 he lodged a compensation claim, which was accepted by Comcare. During his period of unemployment, following a referral by DIAC on 21 December 2005, Mr Bilboe assisted him with a rehabilitation arrangement from February 2006.
18. From 24 April 2006 Dr Cookman, Mr McMillan's general practitioner, certified that Mr McMillan was fit for modified duties. On 31 May 2006, he commenced a job placement with the National Archives as a rehabilitation case manager, which ended on 1 September 2006. He received positive reports about his performance and believed he was ‘moving forward’. At the same time, after ceasing work on 1 September 2006 with the National Archives, Mr McMillan said 'all my depression and anxiety and other feelings had come back'.
19. By around Christmas 2006, Mr McMillan said he was starting to feel a bit better but he still could not contemplate returning to DIAC. On 23 November 2006 he had a report from a consultant psychiatrist, Dr Anthony Sheehan, that he was not fit for work until his progress was reviewed in March 2007. In Dr Sheehan’s view Mr McMillan had not fully recovered. As he said:
In particular [Mr McMillan] reported low energy levels, increased irritability, disruptive sleep patterns, constant anxiety, lowered mood and fleeting suicidal thoughts. He reports his concentration as poor and also reported impaired memory.
20. This report was contradicted by a report from another psychiatrist, Dr Tym, on 20 December 2006 which stated that Mr McMillan was fit for work, provided he did not return to work at DIAC. This recommendation was supported by Mr Bilboe, who advised it was preferable for Mr McMillan to continue job-seeking in order to capitalise on the benefits of his return to work program. On 12 March 2007 Mr McMillan obtained work as a Rehabilitation Case Manager at JACS.
21. In a report dated 5 April 2007, Mr Bilboe stated that Mr McMillan was seen for a final review. The report stated:
He reported that he was doing well at his new employment, and had several cases. It was week four (4) of his current employment and the feedback to himself had been positive. Although Mr McMillan declined to sign a closure form he indicated that he was fine [and that] he would be continuing his current treatment with his Psychologist and treating doctor.
22. However, the report also noted '[it] is unclear what the long-term prognosis is with regard to Mr McMillan's medical (psychological) condition. ... [the rehabilitation provider] understands that Mr McMillan will continue his treatment.’
23. At the hearing, Mr McMillan said he was pretty sure he told Mr Bilboe at this time that he was struggling and that was why he refused the case closure. That belief is supported by an email exchange between Mr Bilboe and Mr McMillan on 2 April 2007. Mr Bilboe noted that ‘[DIAC] have suggested that we close, given that you are working full time and there are no current issues’. To which Mr McMillan responded on 3 April 2007:
I will not be signing any closure. Where does the idea that I have no current issues come from? ... I still get constant and frequent flash backs of the experience I endured at the hands of ‘them’. This is particularly concerning to me especially as I am now dealing with people in similar situations, be it that I now have a different employer. I will be discussing this situation with my doctor at the next appointment.
24. Despite refusing to sign a closure form, Mr McMillan was advised that his rehabilitation program had ceased and that Comcare considered he was certified as fit for full-time work. Mr Bilboe also noted that DIAC had been instructed to advise Mr McMillan not ‘to disclose anything about [his] past at the interview [for the position at JACS]’.
25. Mr McMillan saw Dr Cookman on 17 April 2007 and told him that he 'wasn't travelling real well and that I needed a referral to a psychologist for counsel'. He saw a psychologist, Mr Ian Goch, on 18 April 2007 on a regular basis and has continued to see him regularly since then. Mr McMillan said at the hearing that when he sees Mr Goch they talk about ‘what happened at Immigration. Why did it happen? We still talk about it today’.
26. In a letter to Comcare from Mr McMillan dated 14 June 2007, Mr McMillan referred to starting his new position and said 'Prior to [working in the new position] I felt I was fit and ready to re-enter the workforce. Unfortunately this has not been my experience and I am still experiencing the effects of my work related injury'.
27. Mr McMillan said his work at JACS involved management of bullying and harassment complaints, including cases with similar circumstances to his own experience, as he perceived it, when he was employed at DIAC. As a consequence, he told the Tribunal that he knew there were ‘problems’ very soon after starting at JACS ‘in that first week’. He told JACS about these difficulties in early June 2007, and it was agreed that he would gradually transit from his case management role into an occupational health and safety (OH&S) position. This transition was not complete until September 2007.[4]
[4] Email dated 9 May 2008 from Ms Jenny Gosch; Letter from Ms Gosch dated 19 January 2009.
28. In an email dated 9 May 2008, Mr McMillan’s team leader, Ms Jenny Gosch, noted that ‘[by] end May 2007 it became evident that [Mr McMillan] was having difficulty in his role as case manager’. The email continued:
Throughout [Mr McMillan’s] employment with JACS it has been evident in his behaviour and his ongoing mood fluctuations that he is not fully recovered from his compensable illness. … On a number of occasions after communication with Comcare [Mr McMillan] was unable to present for work the next day. … I believe that he has continued to receive ongoing psychological treatment and has continued to be medicated for his ongoing psychological illness.
29. Despite the move to an OH&S position, Mr McMillan’s distress persisted. In early June 2007, Dr Cookman diagnosed 'agitated depression ... partly situational' and recommended Mr McMillan take leave without pay from 7 June 2007 to 31 August 2007. Despite this recommendation, Mr McMillan did not take leave. He said he had already experienced the difficulty of seeking alternative employment when he did not have a job so he decided it was preferable to stay in employment while he explored opportunities for other positions.
30. By mid-July 2007, Dr Cookman certified him fit to return to his 'redeployed' duties. However, he noted that Mr McMillan needed continuing support from his general practitioner and from Mr Goch. Despite their support, Mr McMillan’s condition did not improve and as he said, he was ‘struggling’.
31. The clinical notes of Dr Cookman on 16 October 2007 indicate that Mr McMillan was 'stable in his new job but had ongoing disputes with [Comcare]'. On 1 December 2007, he was referred to a consultant psychologist; on 31 January 2008, he had seen the psychologist and 'noted problems with work'; and on 4 April 2008 he 'was not travelling well with regards to problems at work and was given a medical certificate [as unfit for work]’. Mr McMillan ceased work with JACS on 4 April 2008.
32. At the hearing, Mr McMillan said he had been looking forward to working at JACS since he ‘thought a new environment’ would enable him to make a fresh start. He said there were no distressing incidents at JACS that caused his condition to flare up and that he felt supported by management and enjoyed working with the other case managers. He also appreciated the manner in which managers at JACS dealt with his difficulties.
33. Nonetheless, in cross-examination he agreed he did have some problems while at JACS. He acknowledged that he had sent an email to a Mr Peter Manley, copied to the Secretary of JACS, Ms Renee Leon, on 21 March 2008, in which he complained about Mr Manley ‘sniffing around in an attempt to gather more information regarding the group I have set up to look at the conditions of service for the ACT Ambulance Service paramedics’. He wrote, ‘I will commence looking for alternate work (initially within JACS) commencing Tuesday’.
34. At the hearing he confirmed that ‘when I’m down and I’m writing emails and stuff, I tend to use a bit of strong language’ and agreed that the experiences at DIAC had led him to have feelings of paranoia. He also agreed that he had received a complaint from a fire fighter whose case he managed against himself about a breach of confidentiality while at JACS. Mr McMillan said that he had referred to the incident at his next visit to Mr Goch, noting that he had a bad day the previous Friday when he became aware of the complaint. At the same time, he said that dealing with people such as these reminded him of his own treatment by DIAC and reactivated his stress and would lead to him needing to go off work.
35. Mr McMillan said that pursuing his claim had been complicated because the two agencies, DIAC and JACS, were disputing who should be liable for his condition. An example of these difficulties was that Mr McMillan was advised by Comcare on 16 September 2008 that although liability for the costs of medical treatment had been accepted for his 2005 condition, that liability ceased on 30 December 2008, and if he had a continuing need for compensation beyond that date he would need to put in a new claim. Mr McMillan submitted a new claim on 29 September 2008. In that claim Mr McMillan nominated DIAC as his employer and said he did not consider there was anything about his illness which warranted making a claim against JACS.
36. From April 2008, Mr McMillan spent nearly two years at home ‘ruminating’ about the events which commenced in DIAC in May 2005, which he said were compounded by his treatment by Comcare. At times he has been suicidal. For example, by August 2008 when he went to see Mr Tom McHugh, his psychologist, he said ‘I’m thinking my best way out – to my – the rest of my family is I’m dead. Financially, they’re better off without me. I was absolutely no use to them, being alive’.
37. Hid suicidal ideation led to him being advised to see a new psychiatrist, Dr Toh. Dr Toh prescribed new medication which Mr McMillan said did not help his condition. He returned to see Dr George, who prescribed Efexor in January 2009. Mr McMillan has been stabilised since then. By October 2009, he said he began to feel he could consider work again and he obtained work as a handyman at an aged care facility, where he remained for four months. Subsequently, he found employment as an electrician at a public hospital in Canberra. He says he has been happy in these jobs because they keep him busy and prevent him spending time worrying about his health and his compensation claims. His work at the hospital ceases in August 2010. In that position, Mr McMillan’s salary is being topped up by Comcare, to reach the level of his DIAC salary and is attributed to his DIAC injury.
Medical evidence
38. There is considerable medical evidence in this matter. The focus in the discussion is solely on the evidence as to whether Mr McMillan’s condition in October 2005 continues or has resolved; and/or whether the condition which led him to become unfit for work at JACS was due to his underlying predisposition, or was aggravated by Mr McMillan’s employment at JACS as a new injury.
39. There is no dispute that Mr McMillan was under the care of a psychiatrist from 1990, predating his employment with DIAC, and that he has been on anti-depressant medication continuously since that time.
Dr James Cookman
40. On 16 March 2006, Dr James Cookman, Mr McMillan’s general practitioner, provided a report to Comcare. In that report he said Mr McMillan suffered from an adjustment disorder and had been under treatment for depression ‘for some considerable time’. However, he said Mr McMillan’s depression had stabilised so that, prior to the events at DIAC in October 2005, Mr McMillan was functioning at a professional and a personal level. In the personal sphere, Dr Cookman also noted the added workload on Mr McMillan from caring for his wife, who is confined to a wheelchair, but said that Mr McMillan's condition only became disabling due to the circumstances at DIAC. By March 2006, however, Dr Cookman said Mr McMillan had improved sufficiently for him to return to work provided that employment was not at DIAC.
41. On 12 March 2007, Dr Cookman advised Comcare that Mr McMillan had obtained work outside DIAC. He confirmed that Mr McMillan continued to suffer from his accepted condition, namely, adjustment disorder with mixed emotional features, but his prognosis was ‘much improved’ by having found alternative work and he hoped Mr McMillan would make a successful return to work in a new environment. In Dr Cookman’s opinion ongoing treatment was required. In that regard, he disagreed with a report by a psychiatrist, Dr Tym (see below).
42. On 7 July 2008, Dr Cookman provided a further report in which he said ‘Mr McMillan continues to suffer from an agitated depression in association with an adjustment disorder’. In his view the ‘relationship between this condition and his employment is a direct one’ and had not been caused by any other specific incident, but 'is an ongoing situation triggered by the initial problem and aggravated by his current lack of a suitable position’. Dr Cookman also provided medical certificates concerning Mr McMillan’s inability to work from 4 April 2008 to 6 August 2008, and from 6 February 2009 until 16 April 2009, and his ability to work in modified duties from 7 August 2008 to 6 December 2008, and from 7 December 2008 to 7 February 2009. The Tribunal notes some overlapping dates in these certificates.
Dr Marian Scarrabelotti, clinical psychologist
43. Mr McMillan was referred by Dr Cookman to Dr Marian Scarrabelotti, clinical and neuropsychologist, and he saw her on 19 October 2005 and at four subsequent sessions until the end of January 2006. In her report of 3 February 2006, Dr Scarrabelotti said Mr McMillan suffered from acute adjustment disorder with mixed anxiety and depressed mood. She said this condition had been precipitated by stressful events in his workplace at DIAC, dated from May 2005. Dr Scarrabelotti referred to Mr McMillan being under psychiatric care from the early 1990s when he commenced taking Prozac, but reported Mr McMillan saying that prior to May 2005 he was not suffering his current symptoms of depression and anxiety. In her opinion, ‘his current condition is neither an aggravation nor an acceleration nor a recurrence of depression’. After Mr McMillan had successfully completed a graduated return to work program in the second half of 2006, Dr Scarrabelotti recommended Mr McMillan recommence work, but not with DIAC.
Dr Anthony Sheehan, consultant psychiatrist
44. On 30 October 2006, Dr Anthony Sheehan, consultant psychiatrist, provided a report for DIAC. In his opinion, Mr McMillan’s prognosis was guarded and he required assessment by a psychiatrist, with particular attention being given to his treatment so that Mr McMillan's mental state could be stabilised. In his view, Mr McMillan remained symptomatic and unfit for work. He provided a supplementary report on 23 November 2006, which stated that Mr McMillan suffered from chronic adjustment reaction with mixed anxiety and depressed mood that had not resolved and required further treatment. In his view Mr McMillan was not fit for work either within DIAC or elsewhere.
Dr Robert Tym, psychiatrist
45. On 20 December 2006, Dr Robert Tym, psychiatrist, said he believed Mr McMillan had made a ‘full and complete recovery’ from his condition of adjustment disorder and was fit for work. He recommended work provided it was not at DIAC.
Dr Graham George, consultant psychiatrist
46. On 21 July 2008, Dr Graham George, consultant psychiatrist, reported that Mr McMillan had ‘suffered chronic depression from at least 1990 onwards’. However, he acknowledged at the hearing that he had not taken a detailed history of Mr McMillan’s mood state between 1990 and 2005. He diagnosed major depression, rather than an adjustment disorder, and said Mr McMillan ‘appears to have paranoid personality traits’. He said on the balance of probabilities Mr McMillan’s condition ‘emanated out of his employment with ACT Department of Justice and Community Safety’. In his opinion:
… the events of 2005 have precipitated an exacerbation of depression from which he may have recovered to some degree and then relapsed subsequently. …I do not necessarily see his employment with the ACT Department of Justice and Community Safety as contributing although in a secondary sense, it has in that he was confronted with people who were affected just as himself. I do not believe he has had the emotional and psychological resources to cope with these cases because they related too closely to his own. In this sense, there probably has been a contribution from his workplace.
47. In his view, Mr McMillan’s ‘current therapy’ had only been ‘partially effective’. He said Mr McMillan required a referral to a psychiatrist, was not capable of undertaking a rehabilitation program, and had a guarded prognosis.
48. In a report of 23 January 2009, Dr George gave the opinion that Mr McMillan's condition was one of 'chronic major depression dating back to 1990'. In his view, the reactivation of his symptoms while at JACS related to 'withdrawal of medication, leading to a relapse of symptoms', although he conceded that his employment did contribute to his symptoms. He said Mr McMillan has 'underlying personality traits which negatively impact on his ability to cope'. At that time, Mr McMillan was not fit to work, nor to be involved in a rehabilitation program and needed to be under psychiatric care. His prognosis remained guarded.
49. In a further report of 30 October [sic, January] 2010, Dr George confirmed the diagnosis of major depression but maintained that Mr McMillan had suffered that condition since the early 1990s with a major relapse in 2005 and subsequent relapse while working at JACS. In his view, Mr McMillan's condition was not caused by his work at JACS, but was an 'aggravation of his condition due to his vulnerability to relapse ... [and] due to particular personality variables'. He affirmed that 'the nature of the work associated with JACS' impacted on Mr McMillan's condition and since there had not been 'full resolution of symptoms' he was 'vulnerable to an exacerbation of illness'. As he said at the hearing, Mr McMillan’s paranoia was a psycho-social factor which also contributed to Mr McMillan’s condition. When pressed, he agreed that the interaction with supervisors at DIAC had resulted in either a completely fresh injury or an aggravation of his underlying psychiatric condition. He also agreed that while at JACS, dealing with the people whose cases he was managing was like looking in the mirror and seeing himself.
50. Dr George at the hearing maintained his view that Mr McMillan had a level of paranoia which was ‘a significant contributor to his symptoms’. At the same time he acknowledged that to diagnose a paranoid personality disorder 'required a well-documented history’ which he had not been able to obtain. He said that ‘there was no contribution from JACS [and] that the major element which was distressing Mr McMillan related to his experiences with the Department of Immigration’. Dr George also concurred with Dr Saboisky's view that the relapse rate of major depression 'can be as high as 90%' for the third episode of depression. In his view, in Mr McMillan’s case the second episode occurred in 2005 and the third in 2007-8. The cause of his incapacity in April 2008 was 'a partially treated or untreated chronic major depression' and that when Mr McMillan ‘ceased all antidepressant medication', in Dr George's opinion, he then relapsed.
Dr John Saboisky, consultant psychiatrist
51. Dr John Saboisky, consultant psychiatrist, saw Mr McMillan on 1 October 2009. In his report of 6 October 2009 he said Mr McMillan had told him that although he had a bout of depression in the early 1990s, he was then 'good for twelve years'. Since 2005, however, according to Mr McMillan, he has not 'got back to anywhere near his normal self'. He said Mr McMillan had told him that when he left DIAC he was instructed not to tell potential employers about his compensation claim and hence initially he did not mention it to JACS. However, as he again experienced symptoms, Mr McMillan did tell JACS, who were very supportive. In Dr Saboisky's view, no incident or event at work at JACS caused Mr McMillan to become depressed. However, in his view Mr McMillan 'never fully recovered from depression' and simply 'decompensated in the face of ongoing occupational reminders or his own situation'. He said throughout his time at JACS, Mr McMillan 'remained very preoccupied with the injustice of how he had been treated by DIAC'.
52. Dr Saboisky diagnosed major depression. In his view diagnosis of an adjustment disorder is appropriate for depressive symptoms in the context of work problems, but if there is an 'Axis 1 disorder (in this case major depression), then it is not an appropriate diagnosis'. He said Mr McMillan's major depression 'has continued to a significant degree’ since 2005. In his view, the only person who disagreed was Dr Tym. Dr Saboisky denied that Mr McMillan had a paranoid personality disorder and said his paranoid responses was 'very much part and parcel of a major depressive disorder', a view he maintained at the hearing.
53. At the hearing, Dr Saboisky produced a time line drawn by Mr McMillan which illustrated his mood state. The diagram showed problems in 1993 which led to Mr McMillan being prescribed Prozac. With this treatment, Mr McMillan returned to normal functioning for the next twelve years. However, in 2005 Mr McMillan was criticised at work at DIAC – unfairly in his view, and these and other events caused a recurrence of his symptoms of depression. He had partially recovered but then had a major relapse at JACS in 2008. In Dr Saboisky’s view there were no major events at JACS which caused that recurrence. Rather, in his opinion at JACS Mr McMillan was constantly reminded of the effects of his own unresolved situation with that agency. That is, what distressed Mr McMillan while working at JACS was the reminder of his experiences at DIAC. In Dr Saboisky's view the contribution from JACS was ‘minor’.
Ms Miranda Morrissey, psychologist
54. Ms Miranda Morrissey, clinical psychologist, saw Mr McMillan on 29 July 2008 and supported the diagnosis of major depressive disorder, recurrent. In her opinion, Mr McMillan's current condition 'appears to be in relation to an accumulation of workplace stressors, most recently the continued "re-exposure" to distressing workplace stressors at JACS'. She acknowledged that 'aspects of his personality' may have contributed. However, in her view Mr McMillan had not fully recovered from his injury deemed to have occurred on 17 October 2005 and his 'depression has prevailed over many years with this latest incident at JACS causing an exacerbation of his underlying depression'. However, she said 'I am unable to be conclusive in my decision without consulting Dr Cookman in order to ascertain whether Mr McMillan's condition had in fact completely resolved once ceasing involvement with DIAC'.
Mr Tom McHugh, psychologist
55. On 1 September 2008 Mr McMillan was seen by Mr Tom McHugh, clinical psychologist who confirmed that he was 'not currently psychologically suitable for work as a case manager or indeed any other capacity' and since he was then at ‘high risk of suicide’ he should be seen by a psychiatrist. In Mr McHugh's view Mr McMillan was not fit for work. In his view, Mr McMillan suffered an adjustment disorder with anxiety and depression.
Mr Ian Goch, psychologist
56. On 16 January 2008, Mr Ian Goch, psychologist, reported on his treatment of Mr McMillan since April 2007. In that period he had seen Mr McMillan on multiple occasions, often weekly. He diagnosed a major depressive episode as a direct result of Mr McMillan’s experiences at DIAC. In his view, while 'he experienced some remission of symptoms after leaving [DIAC] ... his condition was aggravated by exposure to his Justice and Community Safety clients'. As he said 'Rather than a new episode, it is my opinion that his current experience of depressed mood is more than likely a continuation of the previous episode of depression'.
Dr Katharine Lubbe, consultant psychiatrist
57. A report by Dr Katharine Lubbe, consultant psychiatrist, on 29 April 2009, diagnosed adjustment disorder due to conflict at work and following an injury on 17 November [sic October] 2005. In her view, Mr McMillan's past history of depression was irrelevant.
Consideration
What is the correct diagnosis of Mr McMillan’s condition?
58. The first issue is the correct diagnosis of Mr McMillan’s condition. Comcare’s initial decision in matter 2009/2803 of 25 February 2009 accepted liability for medical treatment for ‘aggravation of major depressive disorder, recurrent episode’. That decision was affirmed by Comcare on review on 21 May 2009.
59. The original decision in matter 2009/0179 dated 19 August 2008, which denied incapacity payments from 4 April 2008 to 7 October 2008, referred to Mr McMillan’s claim for the condition of ‘adjustment reaction with mixed emotional features’, his accepted condition. That decision was affirmed on review on 7 January 2009. The reasons provided refer to Dr George’s findings that Mr McMillan suffered from depression and it is not clear whether in denying liability, Comcare was also adopting that diagnosis.
60. In application 2009/3780 a decision was made by Comcare on 25 February 2009 to accept liability for ‘aggravation of major depressive disorder, recurrent episode’ from 4 April 2008. That decision was affirmed on review on 21 May 2009.
61. Mr McMillan’s condition has, therefore, been described either as an ‘adjustment reaction with mixed emotional features’ or a ‘major depressive disorder, recurrent episode’. Dr Cookman, Dr Scarrabelotti, Dr Sheehan, Dr Tym, Mr McHugh and Dr Lubbe favour the first description – although it is noted that in his medical report of 7 July 2008, Dr Cookman refers to Mr McMillan suffering ‘agitated depression in association with an adjustment disorder’ which appears to give prominence to the depression elements of his condition. Dr George, Dr Saboisky, Ms Morrissey, and Mr Goch favour the second diagnosis of major depressive disorder, although Dr George noted that the condition was multifactorial, and there were elements within Mr McMillan's personality which contributed to his depression.
62. The Tribunal prefers the second diagnosis, on several grounds. The first is that this is the unanimous view of the two psychiatrists who gave evidence at the hearing. Their speciality gives added weight to their diagnoses. The Tribunal also gave considerable weight to the view of Dr Saboisky that although an adjustment disorder is a common diagnosis for psychological conditions due to employment, if the condition is accompanied by an ‘Axis 1 disorder’ (here, major depression), the diagnosis of an adjustment disorder is not appropriate. In that context, the Tribunal notes that DSM IV indicates that a condition may be categorised under one only of those labels.
63. This conclusion is congruent with the view of Mr Goch, Mr McMillan’s treating psychologist. His views have added weight because they are based on his ongoing, recent and frequent contact with Mr McMillan since April 2007. Equally, the Tribunal has given weight to the view of Dr Cookman, Mr McMillan’s treating general practitioner. Although initially he diagnosed an adjustment disorder, Dr Cookman later expressed the opinion that Mr McMillan was suffering ‘agitated depression’ alongside adjustment disorder. That is a significant but subtle change to his earlier diagnosis, and favours the second diagnosis. On balance, therefore, the Tribunal finds that the preferable diagnosis of Mr McMillan’s condition is major depressive disorder, recurrent episode.
Whether Comcare is liable for incapacity payments for the period 4 April 2008 to 7 October 2008?
64. The second and principal issue is whether Comcare’s liability to make incapacity payments to Mr McMillan for the period from 4 April 2008 results from an incapacity which arose out of or was aggravated by his employment with DIAC or with JACS, or to some other cause. There is no issue about the date of injury being 4 April 2008.[5]
[5] Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) s 7(4)
65. Comcare contends that Mr McMillan continues to suffer from the accepted psychological condition described as an ‘adjustment reaction with mixed emotional features’ sustained on 17 October 2005 as a result of his former employment with DIAC. However, it is Comcare’s view that Mr McMillan suffered a new ‘injury’, namely, an ‘aggravation’ of a depressive illness significantly contributed to by Mr McMillan’s employment with JACS on or about 4 April 2008 and it is that injury which is the source of his incapacity in the period from 4 April 2008. Comcare accepts that it is liable to pay compensation under section 14 of the Act in respect of that ‘aggravation’.
66. Under section 14 of the Act liability arises ‘in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment’. An ‘injury’ includes a ‘disease’.[6] In turn a ‘disease’ means an ‘ailment’ or ‘an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment’.[7] An ‘ailment’ means ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[8]
[6] SRC Act s 5A.
[7] SRC Act s 5B(1).
[8] SRC Act, s 4.
67. There is no dispute that Mr McMillan’s major depressive condition is a mental ailment, being a condition which is outside the bounds of normal functioning.[9] That condition, therefore, qualifies as a ‘disease’. The principal issue is whether there was an ‘aggravation’ of Mr McMillan’s psychological condition which was contributed to, to a significant degree, by his employment with JACS, thus relieving DIAC of continuing responsibility for his condition.
[9] Comcare v Mooi (1996) 69 FCR 439.
68. Who should bear the responsibility – at least in terms of workers' compensation insurance premiums – underpins the issues in this case. The Act makes no provision for division of responsibility; there is no concept of contributory liability, a deficiency which may become increasingly problematic as the tendency for and official encouragement of movement between government agencies by public officials[10] gathers impetus. Nor do the terms of the Act provide guidance. As counsel for all parties acknowledged it would be possible in this case to find that Mr McMillan had suffered an 'aggravation' of an injury both when working at DIAC and also at JACS. But that is not within the Act's contemplation in deciding which of the two agencies should bear that responsibility.
[10] In this context, the Public Service Commission has been promoting work within the Australian Public Service as a whole as an option. See for example Blue Print for the Reform of Australian Government Administration, March 2010, Foreword, v.
69. The solution to that conundrum is, however, provided for in the merit principle underpinning the Administrative Appeals Tribunal Act 1975 (Cth), namely, that if there is no one correct decision, the Tribunal is able to make a finding of the decision which is preferable.[11] In a case such as this one, essaying that task inevitably requires a comparison between the degree of liability of the agencies involved.
[11] Administrative Appeals Tribunal Act 1975 (Cth) s 43; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419.
70. Although section 5B(2) of the Act does not directly address the comparability issue, some guidance may be obtained from consideration of the following factors which may be taken into account in deciding whether there has been an aggravation of a condition to which employment has contributed to a significant degree:
(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.[12]
[12] SRC Act s 5B(2).
71. A preliminary issue is whether Mr McMillan suffered an 'aggravation' of his condition. Comcare contended that for the period from 4 April 2008, the work Mr McMillan was doing at JACS produced a temporary aggravation of his pre-existing major depressive disorder to the extent that it became clinically significant so that he was unable to continue in employment. In other words Mr McMillan’s condition had ‘been made worse’[13] by his employment with JACS in the sense of being made ‘more grave, more grievous or more serious in its effects upon the patient’.[14]
[13] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537; Federal Broom Co v Semlitch (1964) 110 CLR 626.
[14] Commonwealth v Beattie (1981) 53 FLR 191 at 199 by Evatt and Sheppard JJ quoting Windeyer J in Federal Broom Co v Semlitch (1964) 110 CLR 626 at 639-640.
72. There is no doubt that Mr McMillan suffered a recurrence of his psychological condition during his employment with JACS and that the recurrence caused him to cease employment with that agency on 4 April 2008. The issue is whether that was an aggravation of his condition such that it could be described as a new ‘injury’.
73. The position was initially clouded by the different descriptions of the condition as initially an adjustment disorder, and following his period at JACS, as a major depressive disorder. The Tribunal’s findings that Mr McMillan suffered from a depressive disorder since the 1990s simplifies that issue. However, that response does not determine whether the disease is a continuation or recurrence of an existing injury in the sense of being the manifestation of the symptoms of a pre-existing injury,[15] or an ‘aggravation’ of the injury. The answer to that question turns on the particular facts.[16]
[15] Commonwealth v Beattie (1981) 53 FLR 191 at 201 per Evatt and Sheppard JJ; Australian Postal Corporation v Nadge [1994] FCA 1163 at [29].
[16] Federal Broom Co v Semlitch (1964) 110 CLR 626 at 637 per Windeyer J, quoted with approval in Commonwealth v Beattie (1981) 53 FLR 191 at 199 by Evatt and Sheppard JJ.
74. The facts indicate that Mr McMillan first suffered ‘mild depression’ in 1990 when he was prescribed Prozac. The condition was endogenous, not work-related. His treatment enabled him to manage the condition. He was treated by a psychologist, Mr Graham Scully for two months in 1990 and then discharged. Seven months later in April 1991 he saw another psychologist but was again discharged after two months. The label 'mild' which was attached to the diagnosis of depression is borne out by the relatively short period of treatment he needed with each specialist.
75. In the following 12 years, Mr McMillan worked with ACT Mental Health in rehabilitation from 1992. He moved to the Department of Transport as a rehabilitation case manager in 1996. In 1996 he was promoted to a position in Customs requiring knowledge and skills in occupational health and safety, and rehabilitation. He remained there for six years before commencing work at DIAC in 2002 as an injury management adviser. It was not until 2005, while working at DIAC, that he first experienced psychological symptoms.
76. The evidence establishes and the Tribunal so finds that Mr McMillan was functioning normally from a psychological perspective until 2005. The work he was doing was not affecting him till that year. Indeed, it was only the actions of DIAC in relation to his management of several cases from May 2005, coupled with criticism of his performance by management later to which Mr McMillan has not been able to respond, which precipitated the aggravation of his symptoms. For the previous twelve years his symptoms were well under control. Mr McMillan's breakdown in 2005 can be classified as an 'aggravation' of his psychological condition since it was precipitated by his employment by DIAC. That has been recognised by Comcare in its acceptance that DIAC continued to be responsible for medical costs of Mr McMillan's treatment even after he commenced at JACS.
77. At the hearing Dr Saboisky tabled a diagram drawn by Mr McMillan during a consultation with him. The diagram represented Mr McMillan’s mood swings from the 1990s to the present. What it showed was deterioration in Mr McMillan’s mood in the early 1990s, with a return to normal by about 1993. He remained so until 2005. At that point, there is a major deterioration in his mood, gradually returning towards but not reaching the norm about the time Mr McMillan joined JACS. Mr McMillan’s mood did not fully return to a normal level until early 2008. At that point a deterioration in mood again occurred. This mood change was continuing to worsen at the time the diagram was produced in late 2009, although Mr McMillan's report of his satisfactory working arrangements since he became employed at Kankinya suggest there has been considerable improvement in the last 18 months.
78. Given these facts, Dr George concluded that Mr McMillan had suffered chronic depression from at least 1990, that he suffered a major relapse in 2005, and another while working at JACS. At the same time Dr George's evidence as to aetiology was equivocal. In his view there had not been full resolution of Mr McMillan’s symptoms which arose in 2005 and the cause of his incapacity in 2008 was ‘a partially treated or untreated chronic major depression’. As a result, in his view, Mr McMillan was vulnerable to ‘an exacerbation’ of his illness in 2007 when he joined JACS. As a consequence, he said, at JACS Mr McMillan experienced either a completely fresh injury or an aggravation – in the ordinary sense – of his underlying condition. He said in his reports that JACS 'has contributed to his exacerbation of depression'. Since in his view the condition of major depressive disorder was multifactorial, he also identified personality traits of Mr McMillan, his underlying predisposition to be depressed, and work-related factors as being among the factors. Ultimately he reported that the contribution of employment was secondary in the sense that what precipitated Mr McMillan to leave work in April 2008 was that he did not have the 'emotional and psychological resources to cope with' the cases on harassment and bullying with which he was dealing, especially in the fire fighter and ambulance services. Consistent with that view, when pressed during the hearing, he agreed that JACS had not contributed to Mr McMillan’s condition in 2008 but that this related to his experiences with DIAC.
79. Dr Saboisky’s views were that no major events at JACS caused the deterioration in Mr McMillan’s psychological condition. The major cause of his problems at JACS was Mr McMillan’s experiences at DIAC. At the hearing he conceded that JACS's contribution was 'minor'.
80. Ms Jenny Gosch, JACS, in a letter to Comcare dated 19 January 2009 said:
I am unaware of any ‘incident’ within JACS that may have caused Mr McMillan’s psychological condition, but rather view his behaviours as symptomatic of his ongoing psychological condition.
81. An earlier email dated 9 May 2008 to Comcare had also reported that Mr McMillan had 'not fully recovered from his compensation illness' and that 'he has continued to receive ongoing psychological treatment and has continued to be medicated for his ongoing psychological illness'.
82. Mr Ian Goch’s clinical records of 60 consultations with Mr McMillan from April 2007 to May 2009 reflect the same picture. In half the reports of the over 60 consultations referred to in the summonsed material, there is a specific reference by Mr McMillan to distress at his treatment by DIAC. That figure does not include those consultations (of which there were several) in which the notation referred to distress at ‘workplace incidents and sequelae’ which may have referred to the period at DIAC and its aftermath.
83. In particular there are specific references to DIAC in the period 18 April 2007 to February 2008 while Mr McMillan was working at JACS. Had there been distressing incidents at JACS it could be expected that these would have been referred to in these regular consultations with his treating psychologist. The references to DIAC continue in the consultations in April, May and June of 2008, the time at which and the months immediately after Mr McMillan left JACS.
84. Mr Goch’s contemporaneous records provide strong support, which the Tribunal accepts, that throughout his period at JACS up to and including the time when he finished work on 4 April 2008 and in the subsequent months, Mr McMillan’s focus was on his perceived mistreatment by DIAC. In combination this evidence is sufficient to persuade the Tribunal that Mr McMillan suffered an aggravation of his depressive condition while at DIAC from which he never fully recovered. As a consequence he was vulnerable, while at JACS, to an exacerbation of his symptoms when faced with circumstances which mirrored those at DIAC which had led to his own, not fully resolved, symptoms while at that agency.
85. The position is akin to that described in Asioty v Canberra Abattoir Pty Ltd:[17]
… it was the appellant’s employment with the respondent that caused for the first time an aggravation which was incapacitating and which is still incapacitating because it prevents the appellant from returning to work, at any rate work of a certain kind.[18]
[17] Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
[18] Id at 540 per Toohey J.
86. The circumstances also parallel those described by Member Webb in Re Lucas and Comcare:[19]
Once established in 1993, the condition did not resolve; the severity of her condition fluctuated affecting her incapacity for work in varying degrees. … [T]he evidence supports a finding that the disease was acting upon Ms Lucas’ mind and her perceptions during periods in which it was otherwise apparently quiescent. … In [the Tribunal’s] minds it does not follow, however, that each such reactive episode is consistent with a new aggravation injury. Rather, these episodes point to the enduring nature of Ms Lucas’ psychological symptoms and the reactive nature of her illness, especially in relation to her perceptions of events in the workplace.[20]
[19] Re Lucas and Comcare [2008] AATA 1142.
[20] Id at [61].
87. Equally in Australian Postal Corporation v Nadge[21] the court posed the question in terms which are apt for the present matter:
It was for the Tribunal to determine whether the activities were such as to be likely to have occasioned a fresh injury, or whether they constituted no more than the give and take of daily activities, which, if they occasioned the re-emergence of symptoms in the damaged spine could be said to be a continuation or recurrence of the original injury. If that continuation of symptoms, albeit of greater severity, brought incapacity for employment, the incapacity could be said to result from the original injury.[22]
[21] Australian Postal Corporation v Nadge [1994] FCA 1163.
[22] Id at [29].
88. The finding that Mr McMillan’s condition in April 2008 was not an aggravation in the sense of a new injury, but a re-emergence of symptoms of his underlying psychological condition due to circumstances in the workplace, is also supported on balance by the medical evidence.
89. The preponderance of views by the medical experts – Dr Saboisky, Dr George, Mr Bilboe, Mr Goch and Dr Cookman is that Mr McMillan's psychological condition which became florid in 2005 did not resolve, that his symptoms persisted, were reactivated by the nature of the work at JACS, and led to a recurrence of the symptoms of his major depressive disorder. The evidence on behalf of the first three has been considered. Dr Cookman said in reports in March 2007 and July 2008 that Mr McMillan continues to suffer from his accepted condition and Dr Sheehan, in his report of 23 November 2006, said that Mr McMillan’s condition had not resolved and required further treatment. Ms Morrissey agreed in her report of 25 August 2008 that he had not fully recovered and that his symptoms had been exacerbated by his work at JACS, although she acknowledged that she would need to consult Dr Cookman to confirm that conclusion. Dr McHugh, on 1 September 2008, confirmed that Mr McMillan was then unfit for work due to his symptoms. Dr Lubbe found that Mr McMillan’s condition was due to conflict at work commencing in 2005. This preponderance of medical opinion outweighs the view of Dr Tym that he was fully recovered.
90. On balance, the Tribunal is satisfied that while at JACS Mr McMillan suffered an exacerbation of an unresolved condition which had emerged while he was working with DIAC. Whether this amounts to an 'aggravation' under section 5B of the Act requires an analysis of the factors listed in section 5B(2) noting that for this to be a finding the contribution of JACS must be 'substantially more than material'.[23] Since the test of what was a 'material' contribution has authoritatively been decided by the Full Federal Court in Comcare v Sahu-Khan[24] where Finn J said 'material' as defined meant 'substantially, considerably' or 'of substantial import', the test in the current version of the Act of 'substantially more than material' must impose an even higher threshold. The relevant factors will be considered in turn.
[23] Act section 5B(3).
[24] Comcare v Sahu-Khan (2007) 156 FCR 536, at [15] per Finn J.
91. In the following discussion even if the Tribunal is satisfied that an 'aggravation' of Mr McMillan's condition may have occurred at JACS it is the level of that contribution which is to be decided and it is in this context that the Tribunal may be making the preferable decision in the circumstances, taking a commonsense approach.[25]
The duration of the employment
[25] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ (with whom Gaudron J agreed), and Deane J at 524; McHugh J dissenting.
92. Mr McMillan worked for JACS for only 12.5 months. His evidence which the Tribunal accepts and which is supported by the contemporary records contained in the clinical notes of Mr Goch, was that Mr McMillan became aware within the first month of being at JACS that the case management work at JACS was reactivating his psychological problems. Ms Jenny Gosch, Mr McMillan’s team leader at JACS, said in evidence that she too began to have concerns in May 2007, that is, within 6 weeks of him commencing with JACS, as to whether Mr McMillan was suited for the position.
93. Mr McMillan consulted management at JACS about a change of position in early June 2007 and it was agreed that he was to move to an occupational health and safety position and gradually transit out of the case management area. Mr McMillan was only employed wholly in a case management role for 2.5 months and partially for 5.5 months. In other words, the agency acted promptly to alleviate the problem and although the movement was ultimately not successful, the length of time in that form of employment was limited. Indeed Mr McMillan’s entire employment in that agency at 12.5 months was of relatively short duration. By comparison Mr McMillan worked at DIAC for nigh on three years from 2002 and it was not until the period from May to October 2005 that his difficulties commenced. On that basis, this factor as an operative cause is more likely to have arisen in DIAC than in JACS.
The nature of, and particular tasks involved in, the employment
94. The Tribunal accepts that the kind of case management work in which Mr McMillan was involved at JACS exacerbated his condition. That work triggered his depressive disorder to the extent that it became clinically significant and ultimately Mr McMillan was unable to continue in employment. This finding is vindicated by the fact that since leaving JACS, once he was again fit to be employed, Mr McMillan successfully obtained positions as a handyman at Kankinya Aged Care Facility and as an electrician at Calvary Private Hospital.
95. The issue is whether the contribution of that type of work was sufficient to meet the criterion of ‘substantially more than material'. The earlier conclusion that Mr McMillan did not suffer an 'aggravation' in the sense of a 'new injury' is decisive. As Mr McMillan's condition had not fully resolved prior to his commencing work at JACS, and his adverse reaction to the case management he was doing began within a few weeks of his arrival support, the Tribunal is satisfied that this is a case of reactivation of symptoms which had been quiescent, rather than the development of a new injury.
96. In addition, the evidence from Mr McMillan and Ms Gosch was that there were no particular incidents while at JACS which triggered the condition, notwithstanding the two incidents referred to at [32] – [33]. In addition, the findings are that management had been supportive of Mr McMillan as soon as his difficulties became apparent. These factors, coupled with the evidence in the clinical notes of Mr Goch of the absence of complaints by Mr McMillan about difficulties with JACS, support the Tribunal's finding that the operative or substantially more than material contribution to the reactivation of Mr McMillan's condition was his treatment by DIAC, not by JACS.
97. In these circumstances, although it is clear that it was the nature of the work in which he was engaged at JACS which was causal in the reactivation of his major depressive illness, JACS could not be said to be responsible to the requisite ‘substantially more than material’ degree for the psychological condition.
Any predisposition of the employee to the ailment or aggravation
98. The evidence has established that Mr McMillan had a predisposition to suffering depressive illness. That predisposition was not work-related but inherent and was first manifested in the early 1990s, became florid in 2005 and again in 2008. At the same time, while taking his medication, the Tribunal has accepted that Mr McMillan was adequately managing his depressive condition for twelve years. On the evidence it was only the work he was doing, and responses in the workplace initially at DIAC, and subsequently at JACS which led to his condition becoming symptomatic. On that basis, the Tribunal finds that Mr McMillan's vulnerability to a major depressive disorder was not contributing to his symptoms 'to a significant degree'.
99. Dr George expressed the opinion that another factor, such as Mr McMillan's personality traits which tended towards paranoia, was a significant contributor to his depressive disorder. His view has the partial support of Ms Morrissey. By contrast, Dr Saboisky preferred to describe these traits as a symptom of Mr McMillan's illness, rather than a separate factor. The Tribunal, in light of the evidence of the accumulation of barriers to satisfactory conclusion of this matter which have been provided at various times by DIAC, and by Comcare, considers that his paranoid reaction is understandable in these circumstances and is not likely to have contributed to his condition to a significant degree.
Any activities of the employee not related to the employment
100. The Tribunal notes that Mr McMillan has extra domestic responsibilities and concerns relating to the care of his wife who has cerebral palsy and is confined to a wheelchair. However, as noted by Mr Bilboe in his Initial Needs Assessment Report of 6 March 2006, Mr McMillan has been caring for his wife for 30 years without affecting his ability to work. Indeed, as the records of Mr Goch indicate, Mr McMillan’s responsibilities for his wife have been a steadying influence on Mr McMillan at moments of high stress. So it could not be said that this was a significant factor in the recurrence of his condition.
101. Dr George also suggested that a major contributor to Mr McMillan's condition was his cessation of anti-depressant medication towards the end of 2008 when Dr Toh was trying Mr McMillan on alternative and ultimately ineffective medication. Mr McMillan's refusal to take the new medication for a period undoubtedly exacerbated his condition. It is notable that medical experts were particularly concerned about Mr McMillan's suicidal ideation at this time and it was only Dr George's prescription of Efexor in January 2009 which reversed this trend.
102. These events, however, postdate 4 April 2008. Mr McMillan did not commence seeing Dr Toh until October 2008. Thereafter he had some nine sessions with him ceasing in December 2008. So this factor is not relevant in deciding what factors have made a significant contribution to Mr McMillan's condition.
Any other factors
103. The factors in section 5B(2) are explicitly said not to be exhaustive. Another factor raised by counsel for JACS was that Comcare had continued to pay medical treatment costs against the DIAC claim throughout indicating a view that the injury which occurred at DIAC had not resolved.
104. DIAC sought to disown responsibility upon receipt of Dr Tym's medical report that Mr McMillan had fully recovered and this was supported by his obtaining full-time employment with no restrictions at JACS. In light of these developments DIAC sought also to close the rehabilitation program which it had funded.
105. However, Mr McMillan refused to sign the closure report as he said because he had not fully recovered, and his view had the support of the substantial majority of medical experts in late 2006, early 2007, and subsequently. In those circumstances, these developments provide little evidence in favour of DIAC's responsibilities being concluded.
106. Counsel for JACS also mildly raised the moral dimension of DIAC's actions. The advice to Mr McMillan that he should not tell a potential employer about his injury while at DIAC suggests that DIAC should shoulder the continuing responsibility for Mr McMillan's current condition. The action certainly had adverse consequences for JACS and for Mr McMillan. To an extent it absolved JACS from foreknowledge of Mr McMillan's vulnerability which may have given JACS pause before appointing him to his case management role in that agency.
107. As far as JACS were concerned Mr McMillan had a long – by then over 12 years – and apparently successful career in case management in a range of agencies. Even his work trial program at National Archives used his case management skills; that was the type of work his rehabilitation provider was encouraging him to obtain; it was the type of work which Mr McMillan believed he was suited to.
108. Indeed although DIAC had indicated it would not re-employ Mr McMillan in similar positions, the agency acknowledged his skills in the area. In an email to Mr Bilboe dated 19 December 2006, Ms Tracey Bell, Assistant Director, Injury Management, DIAC, in the context of Mr McMillan seeking positions outside DIAC, noted ‘Eric’s wealth of knowledge and experience in the Case Management field’ and suggested he might apply for a ‘Rehabilitation Case Manager job with IP Australia’. In other words, DIAC knew Mr McMillan, through Dysaran Consulting was being assisted in his search for employment in the Injury Management Advisor and Case Manager (Rehabilitation) roles and did not suggest that such a role was inappropriate for him. It is only with the experience of what happened at JACS that this conclusion that he was not suited to such work can now be made. So in allocation of responsibility terms, it is not JACS which can be held responsible for the nature of his appointment. JACS had no means of knowing that such a role could be problematic and the reason it did not know this was that DIAC specifically suggested that it be denied that knowledge.
109. The consequence was that Mr McMillan did not commence at JACS on a return to work program basis which would have involved only a three months’ trial. Had he done so, and had he been placed in the case management role, it would have been apparent within the three months that he was unsuitable and the trial would have been aborted. In those circumstances DIAC's liability would, without question, have continued.
110. Nor did Mr McMillan have any reason not to seek the kind of work in which he had been engaged for most of his working life since the 1990s. Since leaving DIAC and while at National Archives he had not been faced with case management files which so mirrored his experiences at DIAC that he should have been alerted to the problems of ‘counter-transference’ referred to by Dr George in evidence at the hearing. So he too was unaware of the dangers for him in taking on such a position.
111. Nor was he advised to the contrary by the medical experts. At the hearing, Dr Saboisky and Dr George concurred in saying that given his experiences, Mr McMillan was unsuited to the kind of case management work he was undertaking at JACS and it was a poor choice of occupation for him. That view has the benefit of hindsight. Despite the psychiatrist’s evidence that there is an increasing probability for persons with major depressive illness of further relapses of the condition – of up to 90 per cent for a third relapse – the predominant view previously that Mr McMillan was suffering an adjustment disorder, not major depression, and the absence of focus in Comcare's questions to major depression, indicate that they too did not suggest in their consultations with Mr McMillan and their reports to Comcare that he should avoid this occupation. Indeed, Dr George said he had been unaware that Mr McMillan had been working successfully in case management until the events in DIAC in October 2005 and Dr Saboisky acknowledged Mr McMillan’s ‘very long period of working very competently in that role’ and said that ‘he had the requisite skill set’.
112. Although Dr Sheehan was of the opinion that Mr McMillan was not fit for any kind of work at the time he saw him, that is, 23 November 2006, his recommendation was made in the light of Mr McMillan's distressed condition at that time and he did not recommend against work in the rehabilitation and injury management fields in the longer term. Dr McHugh did say Mr McMillan was 'not currently psychologically suitable for work as a case manager' but this was not until 1 September 2008 which is after the relevant date of 4 April 2008. So the upshot of these reports is that no blame attaches to Mr McMillan for seeking work in these fields.
113. On balance, therefore, having examined the factors listed as relevant for attributing contribution to a significant degree to an employer, the Tribunal finds that the preferable decision is that in allocating responsibility for Mr McMillan's depressive condition, it was Mr McMillan's employment at DIAC, not JACS which contributed to a significant degree to the aggravation of his symptoms and which should continue its liability under section 14 of the Act for that condition as from 4 April 2008.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: ..............[sgd].........................................
AssociateDate/s of Hearing 22 – 23 June 2010
Date of Decision 23 August 2010
Counsel for the Applicant Lorraine Walker
Solicitor for the Applicant ACT Government Solicitor
Counsel for the Respondent Ben Dube
Solicitor for the Respondent Sparke Helmore
Counsel for the Third Party Leo Gray (appearing for Mr McMillan)
Solicitor for the Third Party Pappas J – Attorney
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