Mitchell and Comcare (Compensation)
[2016] AATA 871
•4 November 2016
Mitchell and Comcare (Compensation) [2016] AATA 871 (4 November 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1568
Re
Albertus Mitchell
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Dr M Couch, MemberDate 4 November 2016 Place Sydney The Tribunal sets aside the reviewable decision and in substitution decides that Albertus Mitchell continues to be entitled to the terms of the Comcare determination dated 8 April 2011.
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Dr L Bygrave, Member
CATCHWORDS
COMPENSATION – liability initially accepted for aggravation of adjustment disorder with anxious and depressed mood – later determination found condition was a result of a pre-existing, constitutional personality disorder – whether applicant remains presently entitled to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
REASONS FOR DECISION
Dr L Bygrave, Member
Dr M Couch, MemberNovember 2016
INTRODUCTION
The applicant, Mr Albertus Mitchell, was born in 1974.
Mr Mitchell attended the University of NSW where he completed a Bachelor of Electrical Engineering in 1998 and a Masters of Technology Management in 2000. Between 1998 and 2002, Mr Mitchell was employed by Boeing Australia, Lucent Technology and ADI. Mr Mitchell moved to Canberra and was employed from 2002 to 2006 as a Systems Engineer working on various defence projects.
On 23 October 2006, Mr Mitchell commenced employment at the Department of Defence (the Department) in Canberra. His employment at the Department was terminated on 14 October 2009.
On 8 April 2011, Comcare accepted liability for an injury of ‘aggravation of adjustment disorder with anxious and depressed mood’ (compensable injury) that was deemed to have been sustained by Mr Mitchell on 11 July 2009 and was significantly contributed to by his employment with the Department. Comcare issued a determination on 17 October 2011 that Mr Mitchell had suffered a 30% whole person impairment (WPI) in relation to his compensable injury.[1]
[1] A letter from Comcare dated 15 November 2011 stated that, following reconsideration by a Comcare delegate, Mr Mitchell’s WPI rating was increased from 25% to 30%.
Following a medical assessment on 4 December 2015, Comcare determined on 27 January 2016 that Mr Mitchell was not presently entitled to compensation for incapacity under s 19 and/or medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). This determination was affirmed by Comcare on 2 March 2016.
On 23 March 2016, Mr Mitchell lodged an application to the Administrative Appeals Tribunal for a review of the determination by Comcare on 2 March 2016.
The application was heard in Sydney on 6 and 7 September 2016. Mr Mitchell attended the hearing in person and had legal representation.
ISSUE FOR DETERMINATION
There is substantial material before the Tribunal relating to incidents that occurred while Mr Mitchell was employed at the Department and processes involved with resolving those incidents and the compensable injury.
This application does not require, and it is not appropriate for, the Tribunal to re-examine these incidents.
Comcare has accepted liability for the compensable injury. The Tribunal accepts the facts of the determinations dated 8 April 2011 and 17 October 2011, notably that:
·Mr Mitchell sustained an ‘aggravation of adjustment disorder with anxious and depressed mood’ on 11 July 2009 that was significantly contributed to by his employment with the Department; and
·Mr Mitchell suffered a total permanent impairment of 30%.
The determinative issue for the Tribunal is whether Mr Mitchell, at the date of 27 January 2016, continues to suffer the effects of the compensable injury.
EVIDENCE
Evidence of Mr Mitchell
Mr Mitchell provided a written statement signed and dated 30 June 2016, and gave oral evidence to the Tribunal.
Mr Mitchell was born in Indonesia and moved to Australia at the age of eight years. He told the Tribunal that while there had been periods of difficulty in his childhood, he felt that he had adapted well to living in Australia.
At the Tribunal hearing, Mr Mitchell confirmed that in 1995 or 1996, when he was about 19 or 20 years old and following the suicide of his best friend and the passing of his grandmother, he was diagnosed and treated for depression for about six months. In 2006, he was treated for depression for two to three months, although this related to him feeling unsettled and needing to set some life goals.
Mr Mitchell disclosed these incidents to the Department in 2006 when he attended a compulsory pre-employment medical assessment and was cleared as fully fit with no medical condition that precluded his employment.
In his written statement, Mr Mitchell described his experiences while he was employed at the Department, which led to Comcare accepting liability for the compensable injury by consent determination on 8 April 2011. He further stated that he was under the care of psychiatrists Dr Anis from 2011 to 2012, Dr Dinnen since 2012 and Dr Lee since 2014; each of these psychiatrists diagnosed and treated him for an adjustment disorder arising from his employment at the Department.
On 20 March 2014, Mr Mitchell was assessed by Dr Akkermann for Comcare. Mr Mitchell told the Tribunal that he felt Dr Akkerman behaved in an aggressive manner during his appointment and so he left the session before it was completed.
Mr Mitchell saw Dr Ventura for Comcare on 4 December 2015; she disagreed with previous medical reports and diagnosed him with a ‘general personality disorder’.
Mr Mitchell told the Tribunal that he felt his symptoms had gradually improved since 2014 when he had regularly begun meeting with Dr Lee, his current psychiatrist. By late 2015, he had felt well enough to consider implementing a rehabilitation program for returning to work. This progress was interrupted by Comcare’s decision in January 2016 that he no longer suffered the effects of his compensable injury. Mr Mitchell said it was also set back by the Department’s decision to notify Nova Systems that he was a security risk, after Nova Systems offered him employment as a Systems Engineer in May 2016.
Medical evidence
The Tribunal has been provided with extensive documentation which refers to Mr Mitchell experiencing anxiety and depression in relation to his workplace situation, and being diagnosed with an adjustment disorder with anxiety and depressed mood. These include:
·Reports of Dr Jonathan Turtle (General Practitioner) dated 7 December 2007, 11 December 2009 and 26 February 2010.[2]
·Report of Dr Graham George (Consultant Psychiatrist) dated 25 January 2008.[3]
·Reports of Mr Noel Eastwood (Psychologist) dated 19 February 2008, 26 September 2008 and 9 September 2009.[4]
·Report of Dr Jeffrey Swift (Consultant Psychiatrist) dated 4 February 2010.[5]
·Reports of Dr Anthony Dinnen (Consultant Psychiatrist) dated 15 September 2011 and 1 November 2012.[6]
·Report of Dr John Taylor (Consultant Psychiatrist) dated 26 February 2014.[7]
[2] Exhibit T1: T3 (p 6), T14 (p 48), T21 (p 75).
[3] Exhibit T1: T4 (p 13).
[4] Exhibit T1: T6 (p 22), T7 (p 23), T8 (pp 24-25), T10 (pp 27-28), T20 (p 72).
[5] Exhibit T1: T19 (p 63).
[6] Exhibit T1: T32 (p 140), T49 (p 218).
[7] Exhibit T1: T58 (p 280).
The following reports also support a diagnosis of an adjustment disorder for Mr Mitchell but suggest that the cause of his condition is not solely related to his workplace situation at the Department:
·Dr Inglis Howe Synnott (Consultant Psychiatrist) on 15 January 2013 diagnosed Mr Mitchell with ‘Major Depressive Disorder; alternatively, a diagnosis of Adjustment Disorder with anxiety and depressed mood would be equally valid.’ Dr Synnott further noted that it is possible that Mr Mitchell had ‘a residual psychological vulnerability’ which ‘became apparent in the context of his workplace issues’. This could explain why Mr Mitchell ‘has not improved since leaving work in 2009 and why he has not been able to significantly move on in his life’.[8] Dr Synnott provided an addendum to his differential diagnosis, which stated in part:
The medico-legal setting is quite unlike a clinical setting and the differences should be appreciated when you are interpreting a report prepared by a doctor in a medical-legal situation. The DSM-IV classification system was not devised for medico-legal purposes and may not be applicable in that setting, where the alleged symptoms or ‘difficulties’ may be incorrectly attributed to a psychiatric condition or a particular stressor.
·Dr Klaas Akkerman (Psychiatrist), in reports dated 20 March 2014 and 30 May 2014, diagnosed Mr Mitchell with an ‘adjustment disorder [which] is an abnormality of mood… It is chronic.’ He also stated his belief that the cause of this condition in Mr Mitchell was ‘constitutional’ because his condition had not improved since he had left work and been removed from ‘stressors with work’.[9] Dr Akkerman provided a further report dated 29 August 2016, in which he confirmed his diagnosis from 2014 but did not know whether Mr Mitchell continued to suffer the effects of his compensable injury because he had not seen him for two years.[10]
[8] Exhibit T1: T50 (p 226).
[9] Exhibit T1: T60 (p 296), T63 (p 315)
[10] Exhibit R1.
A discharge summary from St John of God Hospital Richmond stated that Mr Mitchell was admitted on 10 June 2011 and discharged on 25 June 2011. Mr Mitchell reported ‘poor sleep, poor appetite and low mood in the context of being bullied by colleagues at work… he felt he was watched and spied upon… [he] disclosed intentions to [c]hang[e] his name and to “change his eyes as well” so he wouldn’t feel “targeted” as an Asian’. Dr Anis, the specialist treating Mr Mitchell at the Hospital, diagnosed ‘Bipolar Disorder – Depressive episode with psychotic features’. No further information about this diagnosis by Dr Anis has been provided to the Tribunal.
Evidence of Dr Antonella Ventura
On 4 December 2015, Dr Antonella Ventura (Forensic and Adult Psychiatrist) examined Mr Mitchell and provided a report dated 7 December 2015, a supplementary report dated 29 February 2016, and a further supplementary report dated 31 August 2016.[11]
[11] Exhibit T1: T69 (pp 344-346), T79; Exhibit R2.
In Dr Ventura’s report dated 7 December 2015, she concluded that Mr Mitchell:
… suffered from an episode of Major Depressive Disorder for a time after his termination from employment until he received treatment in 2011 at St John of God, Richmond. Although he has continued to suffer from residual psychological symptoms since then, I am not of the opinion however that the symptoms are a result of a workplace incident. I share Dr Akkerman’s opinion that some of the symptoms may very well be constitutional.
She also diagnosed Mr Mitchell with ‘strong features of a General Personality Disorder’ and noted ‘it is possible that he is currently suffering from a delusional disorder which is in partial remission as a result of treatment with anti-psychotic medications’. Dr Ventura opined that Mr Mitchell ‘is no longer suffering from a Major Depressive Disorder. He is currently suffering from the symptoms of a pre-existing psychiatric condition’.
In her supplementary report dated 31 August 2016, Dr Ventura noted Mr Mitchell’s discharge summary from the St John of God Hospital and Dr Anis’ diagnosis of ‘bipolar disorder – depressive episode with psychotic feature’; she opined that ‘bipolar affective disorder Type II should be considered as a differential diagnosis’.
At the Tribunal hearing, Dr Ventura said that she felt that Dr Anis was in the best position to diagnose Mr Mitchell’s condition because Dr Anis had treated Mr Mitchell in a hospital setting for 15 days in 2011. Dr Ventura told the Tribunal that Mr Mitchell presented to her on 4 December 2015 with minimal pathological symptoms and she saw no evidence of an aggravation of the injury during the consultation. She confirmed her opinion that Mr Mitchell had an unspecified anxiety disorder that was not caused by his employment at the Department.
Evidence of Dr Katie Dimarco
Dr Katie Dimarco interviewed Mr Mitchell on 9 February 2016 and provided a report dated 22 February 2016. On the basis of information provided by Mr Mitchell at the interview and a review of selected psychiatric reports, including the reports of Dr Akkerman and Dr Ventura, she concluded that:
…he [Mr Mitchell] developed anxiety symptoms in the work setting from the interpersonal conflict in 2007, including significant anxiety symptoms. This would have been consistent with him developing an Adjustment Disorder…
… [A]lthough there were early developmental experiences including separation from his parents and the challenges of immigration, there is no information to suggest that Mr Mitchell was displaying features of a Personality Disorder prior to encountering the workplace situations leading to his development of Adjustment Disorder symptoms from 2007. He described stable friendships and relationships until this point, and had adjusted adequately to a range of challenges including learning English and settling into school, changing courses from his plans of Medicine to Engineering, coming out to his parents, and moving around a range of cities and jobs.
I agree that he has personality vulnerability features, including interpersonal sensitivity, affective lability and impaired frustration tolerance, but it appears these have become problematic following the impact of workplace events that have led to his Adjustment Disorder and being on a Comcare claim.
… Mr Mitchell has ongoing symptoms of a chronic Adjustment Disorder with mixed mood and anxiety symptoms. I did not elicit a history supportive of a diagnosis of adult ADHD. I do not believe he would meet diagnostic criteria for a General Personality Disorder.[12]
[12] Exhibit T1: T77 (p 382).
Dr Dimarco affirmed to the Tribunal on 6 September 2016 that Mr Mitchell’s original symptoms of his adjustment disorder were caused by events that occurred while he was employed at the Department.
Dr Dimarco said that Mr Mitchell had experienced ‘intense feelings’ as a result of his employment at the Department and his adjustment disorder has not resolved because the consequences of his employment at the Department have not yet resolved. Dr Dimarco noted that Mr Mitchell continues to experience on-going consequences from his compensable injury (the ‘stressor’); in Mr Mitchell’s situation, the ‘stressor’ could be the physical removal from his workplace or his feelings about the removal from his workplace. Consequently, the ‘stressor’ relevant to Mr Mitchell’s adjustment disorder did not necessarily dissipate when he finished his employment with the Department.
Evidence of Dr Anna Lee
Mr Mitchell has received regular psychiatric treatment from Dr Anna Lee (Consultant Psychiatrist) since March 2014.
In a report dated 27 January 2016, Dr Lee diagnosed Mr Mitchell with an adjustment disorder with anxious and depressed mood, and ‘Attention Deficit Disorder of adulthood which may have also exacerbated his current cognitive symptoms of anxiety particularly inattention’.[13]
[13] Exhibit T1: T73 (p 360).
Dr Lee reported that Mr Mitchell’s adjustment disorder ‘was clearly and significantly related to workplace difficulties… and the subsequent long term loss of employment and interruption to his career’. She observed that his overall functioning has ‘improved significantly since 2014 but his symptoms have not completely subsided’, and he ‘suffers from loss of confidence in the workplace and ruminating fears of not returning to pre injury employment in the future’.
Dr Lee stated that Mr Mitchell has pre-existing personality vulnerabilities that make him more likely to respond in an anxious or hostile manner to criticism and be sensitive to injustice. However, she opined that, as Mr Mitchell was previously employed in systems engineering without any apparent workplace difficulties, he does not meet the criteria for a personality disorder.
At the Tribunal hearing, Dr Lee gave evidence that Mr Mitchell continues to suffer from an adjustment disorder. Although Mr Mitchell has been removed from the ‘stressor’ (the physical workplace of the Department) for more than six years, Dr Lee stated that the sequelae of the stressor has continued because Mr Mitchell is still dealing with the ramifications of the stressor, which include the ongoing loss of his career and his continuing unemployment.
Dr Lee acknowledged Mr Mitchell’s childhood experiences but noted that, although these may have contributed to his interpersonal sensitivity, these experiences had not caused his current anxiety and depression or his adjustment disorder. She stated that, while Mr Mitchell had ‘a lot of issues going on’, most of these were ‘in the background’. Rather, it was his adjustment disorder that was impacting on his capacity to return to work.
CONSIDERATION
On 2 March 2016, Comcare affirmed the determination made on 27 January 2016 that Mr Mitchell no longer suffered from the compensable injury. Comcare relied solely on the medical reports by Dr Akkerman, Dr Ventura and Dr Lee, and determined that Mr Mitchell has a psychiatric condition but this condition ‘is as a result of a pre-existing, constitutional personality disorder’.
We have considered all the evidence before the Tribunal and find that:
·Mr Mitchell suffered from an adjustment disorder with anxiety and depressed mood that was significantly contributed to by his employment at the Department. This is the compensable injury that Comcare accepted liability for on 8 April 2011.
·Mr Mitchell has personality vulnerable features as described by Dr Lee and Dr Dimarco. We are not persuaded by Dr Ventura’s diagnosis that Mr Mitchell has a general personality disorder because this is inconsistent with the evidence of the other psychiatrists (Dr George, Dr Swift, Dr Dinnen, Dr Taylor, Dr Synnott, Dr Akkerman, Dr Dimarco and Dr Lee) who have treated and diagnosed Mr Mitchell’s psychiatric condition since 2008. We also note that Dr Ventura relied on Dr Akkerman’s assertion that Mr Mitchell’s condition may be congenital to make her diagnosis. We place limited weight on Dr Akkerman’s report in view of Mr Mitchell’s oral evidence to the Tribunal that he left his appointment with Dr Akkerman before it was completed.
·Dr Ventura’s opinion that ‘bipolar affective disorder Type II should be considered as a differential diagnosis’ relied on the diagnosis of Dr Anis set out in the discharge summary dated 4 July 2011 from the St John of God Hospital. As there is no further information provided to the Tribunal in relation to this diagnosis and no evidence of a diagnosis of bipolar affective disorder Type II from any of the other consulting psychiatrists who have treated Mr Mitchell, we are not persuaded by this opinion.
·The weight of medical evidence shows that Mr Mitchell continues to suffer from an adjustment disorder with anxious and depressed mood. The ‘stressor’ for his adjustment disorder was his employment at the Department, which ceased in 2009. The sequelae of the stressor are the consequences of his compensable injury, which are continuing. The sequelae of the stressor include Mr Mitchell’s enduring loss of employment and interruption to his career, and dealing with ongoing legal proceedings associated with his compensable injury. We note Dr Synnott’s view that it may be difficult to correctly attribute symptoms to a particular stressor in a medico-legal context.
CONCLUSION
On the basis of the evidence before the Tribunal, we are satisfied that Mr Mitchell continued to suffer from the effects of his compensable injury on 27 January 2016.
DECISION
The Tribunal sets aside the reviewable decision and in substitution decides that Mr Mitchell continues to be entitled to the terms of the Comcare determination dated 8 April 2011.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of
Dr L Bygrave, Member and Dr M Couch, Member.................................[sgd].......................................
Associate
Dated 4 November 2016
Date(s) of hearing 6 and 7 September 2016 Solicitors for the Applicant I Collins Counsel for the Respondent K Blackford Slack Solicitors for the Respondent Australian Government Solicitor
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