Mitsopoulos and Comcare
[2011] AATA 474
•7 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4002
GENERAL ADMINISTRATIVE DIVISION ) Re Fotini Mitsopoulos Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member A K Britton and Dr I Alexander, Member Date7 July 2011
PlaceSydney
Decision The reviewable decision is set aside. In substitution of that decision we find that as of 7 July 2011, Mrs Mitsopoulos’s reactive depression does not “result in” incapacity. .........................[sgd].....................
Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION – incapacity- whether incapacity ‘a result of’ compensable injury – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(9), 21
Workers’ Compensation Act 1951 (ACT)
RE Mitsopoulos and Comcare [1999] AATA 364
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1; 144 ALR 510
REASONS FOR DECISION
7 July 2011 Senior Member A K Britton
Dr I Alexander, Member1. Mrs Fotini Mitsopoulos was employed as a clerk by the Commonwealth Bank of Australia between 1989 and 1996. In 1999, the Tribunal (differently constituted) found that Mrs Mitsopoulos suffered “reactive depression” as a result of her employment at the Bank: Re Mitsopoulos and Comcare [1999] AATA 364 at [32]. In addition, the Tribunal found that Mrs Mitsopoulos was totally incapacitated for work between July 1996 and January 1998, and partially incapacitated from 9 January 1998 to date.
2. Mrs Mitsopoulos seeks review of a decision made by the Bank in 2008 that she is entitled to compensation based on her being partially incapacitated for employment. She challenges that decision and asserts that she is totally incapacitated for employment and her entitlement to compensation should be calculated accordingly.
3. The Bank now seeks that the reviewable decision be set aside. While conceding that Mrs Mitsopoulos is totally incapacitated for employment, the Bank contends that that incapacity is no longer “a result of” the subject injury, namely the reactive depression, and accordingly she no longer has an entitlement to compensation on account of incapacity. The Bank asserts that Mrs Mitsopoulos’s current incapacity is attributable to schizophrenia.
4. Mrs Mitsopoulos on the other hand, submits that her incapacity for work remains “a result of” reactive depression and asserts that her symptoms have remained largely unchanged since she last worked at the Bank in 1996.
Statutory Framework
5. Under Part II Division III of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), compensation is payable where an injury “results in” an employee being totally or partially incapacitated for work. “Incapacity for work” is defined to mean an incapacity to engage in any work, or, an incapacity to engage in work at the same level the employee was engaged immediately before the injury happened: s 4(9) of the Act.
6. In Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6, the Full Federal Court considered a provision in the Workers’ Compensation Act 1951 (ACT) which provided that the worker is entitled to compensation “where the worker is totally incapacitated for work by the injury” [emphasis added]. Noting that there was no operative difference between the phrases “results from [injury]” and “by the injury” their Honours commented:
… It should be taken as “unarguably clear and generally accepted” since at least the Morris v George litigation (that is, Morris v George and Bushby v Morris); that an incapacity can result from more than one injury: see Switzerland Insurance Workers Compensation (NSW) Ltd v Burley (1997) 144 ALR 234 per Mahoney P. It likewise should be taken as clear that the notion of causation imported by the clause does not limit the operative injury (or injuries) “to the immediate proximate cause of incapacity”: Kooragang Cement Pty Ltd v Bates at 463. Whether total incapacity results from an injury is a question of fact. This is no different from the application to a given case of the common law principles of causation in negligence cases: see March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; a “common sense” evaluation of the causal chain is required – that evaluation being made in light of the statutory formula itself.
The only additional general comments we consider it necessary to make are these. First, where the causal chain reveals multiple and sequential (or cumulative) injuries that are alleged to provide causes for an incapacity, before an earlier such injury can properly be said to be an injury for the purposes of cl 1(b), it must be able to be said that it remained an effective or operative cause of the incapacity …
7. Adopting that approach, Mrs Mitsopoulos’s entitlement to compensation turns on whether “reactive depression” remains an effective or operative cause of her incapacity for employment.
Medical History
8. Both parties place considerable weight on the history of Mrs Mitsopoulos’s mental health since she left the Bank in 1996. It is therefore useful to sketch in the available history. As will become apparent, the medical history is incomplete and opinion has been divided about the precise nature of Mrs Mitsopoulos’s condition(s).
9. The medical evidence before the Tribunal in the original proceedings was not before us. The Tribunal’s Reasons for Decision disclose that at the time of the proceedings the consensus of medical opinion was that Mrs Mitsopoulos suffered from a “reactive depression” caused by her employment at the Bank. Apparently the only issue of note between the experts was whether the condition was a result of “reasonable disciplinary action taken against [Mrs Mitsopoulos]” thus disentitling her to compensation (Re Mitsopoulos and Comcare [1999] AATA 364 at [23] – [26]).
10. Shortly after the Tribunal handed down its decision, Mrs Mitsopoulos was assessed by psychiatrist Dr Gerard Gibney. In a report dated 13 September 1999, Dr Gibney recorded that Mrs Mitsopoulos told him that every day she heard voices of her former colleagues at the Bank and thought that they were controlling what she thought and did. He also recorded that she reported that her problems at the Bank were on her mind “all the time”; she did not want to see anyone or do anything and could not concentrate on reading or watching television. He noted that she was under the care of psychiatrist Dr Oswan Ali and taking anti-depressant medication.
11. Dr Gibney described Mrs Mitsopoulos’s manner and presentation on interview as “extraordinary”. He noted that throughout the assessment she was “shouting, howling and thumping the table”. He concluded that if her manner of presentation was genuine then she would “certainly” be suffering from a psychiatric illness with paranoid features. However he stated that this was a provisional diagnosis because the information given was “so jumbled and imprecise”.
12. Shortly after that assessment, at the request of her solicitors, Mrs Mitsopoulos was interviewed by psychologist Mr Khalil Moustapha. In a report dated 16 October 1999, Mr Moustapha recorded that on assessment Mrs Mitsopoulos described a range of symptoms as “typical of reactive depression”. He took a history of Mrs Mitsopoulos presenting every day with high levels of depressed mood, markedly diminished interest in activities, psychomotor retardation, fatigue, feelings of worthlessness and diminished ability to concentrate. In his opinion, Mrs Mitsopoulos had experienced a major depressive episode and also suffered from panic attacks and post-traumatic stress disorder. No mention was made in that report of symptoms suggestive of a psychotic illness.
13. In a report addressed to Mrs Mitsopoulos’s solicitors, dated 10 November 2000, Dr Takas — Mrs Mitsopoulos’s treating psychiatrist from 1999 until apparently mid-2002 — stated that in his opinion his patient suffered a severe Adjustment Disorder with depressed and anxious mood. He noted that her condition had been showing a “fluctuating course, with periods of improvement and relapse”. He wrote that there were no “psychotic phenomena” or evidence that Mrs Mitsopoulos might be suffering any formal thought disorder. He noted that Mrs Mitsopoulos had reported:
- Feelings of anxiety and depression.
- Irritability and nervous tension.
- Angry outbursts and ongoing friction with her husband.
- Disturbed sleep. She also suffered from recurrent nightmares in which incidents that had occurred in the workplace were re-enacted.
- Problems with her appetite, in that she had been eating nervously and had gained body weight.
- Sexual dysfunction in terms of loss of sexual drive.
- Social withdrawal, in that she has found it difficult to go out and mix with people
- Experiencing intense fear and having the feeling that “I see them (meaning the supervisors from the Commonwealth Bank) everywhere”.
- Difficulties with her memory and concentration.
- Bodily symptoms of anxiety in terms of perspiration and chest pains, as well as palpitations and breathlessness, also experiencing pins-and-needles in her body, as well as dizzy spells. She also referred to phenomena in which she has the feeling that the reality around her has been changing.
14. In a letter to her GP, written a few days after that report, Dr Takas stated that Mrs Mitsopoulos had developed a certain “paranoia” in that she believed that the Bank would send people to harm her and that her husband was also part of the plot. He stated that he did not think that to be “a true psychosis” but rather “overvalued ideas as part of her severe depression”. It would appear that at least by April 2001 Dr Takas had commenced treating Mrs Mitropoulos with a small dose of Stellazine. Stellazine is commonly used to treated psychosis. In subsequent reports to the GP, Dr Takas commented that Mrs Mitropoulos “appeared more settled” (see reports dated 14 July 2001, 24 July 2002).
15. In late 2002, Mrs Mitsopoulos came under the care of Dr Napper. In a letter to Mrs Mitsopoulos’s GP in February 2002, Dr Napper wrote that it was difficult to make a proper diagnosis, because he did not have any reports from past treating psychiatrists. He reached the tentative conclusion that “there is evidence of a psychotic process, that could well be schizophrenia” and that this would explain why Mrs Mitsopoulos had been taking Stellazine for the past two years. He recorded that in addition to symptoms of recurrent depression, panic attacks, and insomnia, Mrs Mitsopoulos reported hearing the voices of her grandfather and her husband (when not in the house) for up to 30 minutes, every two to three days. He also recorded that Mrs Mitsopoulos had reported being followed by “people from the Commonwealth bank”.
16. In a lengthy report prepared in April 2004 at the request of Mrs Mitsopoulos’s then solicitors, Dr Napper stated that since leaving the Bank, Mrs Mitsopoulos had continued to suffer chronic panic attacks almost daily, which had not improved even with psychiatric care and medication. He noted that in addition, she suffered chronic nervousness, recurrent depression, moodiness, irritability, anger outbursts and fear of going outside unaccompanied. He believed Mrs Mitsopoulos was unfit to return to work. He noted that while she had been trialled on various medications, none had made any significant improvement either in the frequency of her panic attacks or the severity of her depressive and anxiety symptoms. In his opinion, Mrs Mitsopoulos suffered from Panic Disorder with Agoraphobia and also Chronic Adjustment Disorder with Anxiety which had resulted in a 25 per cent permanent impairment. In these proceedings, Dr Napper admitted that sometime before he had prepared that report he had diagnosed Mrs Mitsopoulos as suffering from schizophrenia notwithstanding that he made no mention in the report of that diagnosis, or, of Mrs Mitsopoulos exhibiting psychotic symptoms.
17. At around the same time, at the request of her solicitors, Mrs Mitsopoulos was assessed by psychiatrist Dr Peter Morse. In a report dated 14 May 2004, Dr Morse provided a diagnosis of “Adjustment disorder with anxiety and depression”, which in his opinion had probably become permanent by about 1997. He wrote that he found it difficult to see how Mrs Mitsopoulos had become so severely disturbed “not so much in terms of her emotional state but the extraordinary impact it has had on her lifestyle”. He thought that the continuation of symptoms of anxiety and depression long after leaving the work place and being removed from the trauma was probably the result of other factors that were at least indirectly related to her employment with the Bank — her financial difficulties, husband’s unemployment and the ongoing legal process in respect of her compensation claim. He thought the lack of activity and work during this period of depression had probably become a “habit” and led to a “lifelong situation of [Mrs Mitsopoulos] being down, withdrawn, inactive and having difficulty relating to people”.
18. Dr Morse recorded that on interview Mrs Mitsopoulos told him that she felt she was being followed and that she believed that the Bank was “checking her in some way” but was uncertain if this was continuing. She was “quite adamant” however that the Bank had been paying for people to follow her. Dr Morse wrote that on specific enquiry he could find no evidence of “any psychotic phenomena either in terms of any bizarre, unreal, delusional beliefs nor does she describe any perpetual disturbance”.
19. At the request of her solicitor, Mrs Mitsopoulos was assessed by physician Dr Con Costa in June 2009. In a detailed report he noted a long history of depression and anxiety and a “very constricted lifestyle”. On examination he noted that Mrs Mitsopoulos became easily tense and agitated particularly when recalling events at the Bank but with no obvious signs of psychosis. In his opinion she suffered from panic disorder and agoraphobia and the condition was chronic. He thought that she was unable to work on account of that condition.
20. In January 2010, Mrs Mitsopoulos was assessed at the request of the Bank by psychiatrist, Dr Yvonne Skinner. In a report dated 18 February 2010, Dr Skinner wrote that the interview with Mrs Mitsopoulos proved difficult. She described that throughout the examination, Mrs Mitsopoulos gesticulated, waved her arms around; frequently made facial grimaces, often appeared distracted; made little direct eye contact; frequently swore; sometimes shouted in an angry tone and the volume of her voice varied from soft to shouting. Dr Skinner terminated the interview when Mrs Mitsopoulos became extremely distressed, agitated and began weeping after the topic of hospitalisation was raised.
21. When asked whether she sleeps well, Mrs Mitsopoulos told Dr Skinner that when she closes her eyes she becomes scared that people will come into her home. She also reported being scared that people might come through the front door, beat her up and kill her. She told Dr Skinner that she often sleeps for five minutes before getting up and having cigarettes and coffee. Mrs Mitsopoulos also told Dr Skinner that she suffers panic attacks where she cannot breathe and feels she is being choked. Her hands feel numb and she begins screaming and yelling.
22. Dr Skinner also recorded being told by Mrs Mitsopoulos that she avoids going to places where there might be children as she does not like the noise they make and recorded her as saying, “They scream, I want to kill them – I hate children”. In these proceedings Mrs Mitsopoulos denied hating children or telling Dr Skinner that she did. She spoke of her affection for her nieces and nephews and pointed to photos of a nephew she claimed was on display in her home.
23. Dr Skinner also recorded that Mrs Mitsopoulos hears voices when alone in her home — usually of her mother, sister and brother — saying both good and bad things about her. Dr Skinner understood that she was particularly disturbed by voices when outside the home especially in crowded places or when using public transport. Dr Skinner also interviewed Mrs Mitsopoulos’s husband who told her his wife had become worse over time and did not want anyone coming into their home.
24. In a report dated 21 October 2010, Dr Napper wrote that although he agreed with Dr Skinner’s diagnosis of chronic paranoid schizophrenia, the principal condition he had been treating her for since she came into his care was Panic Disorder with agoraphobia and a major Depressive Disorder. He stated that while she continues to suffer from chronic depressed mood and recurrent panic attacks some improvement was evident after trialling her on various anti-depressants. In respect to her schizophrenia he stated that Mrs Mitsopoulos no longer suffers from auditory hallucinations except when she forgets to take her anti-psychotic medication and when that occurs they last for only a few seconds every couple of days. He stated that her paranoid delusions went into remission in about October 2009 and no longer feature in her mental state examination.
25. In a report dated 31 August 2010, Mrs Mitsopoulos’s GP, Dr Mamdouh Mater, stated that she had been a patient of his practice since 2001 and throughout that period had symptoms of severe depression, generalised anxiety disorder and panic attacks. He wrote that she had never shown any psychotic symptoms or signs, never had suicidal thoughts or ideation or been a threat to anyone.
26. Mrs Mitsopoulos was seen by occupational physician Dr Phillipa Harvey-Sutton in November 2009. Dr Harvey-Sutton reported that Mrs Mitsopoulos was emotionally distressed throughout the interview and while taking a history from her husband, “started talking to herself, rocking herself and hitting her head with her hand as well as crying and facial grimacing and obtaining water from her drink bottle (regressive behaviour).”
27. Mrs Mitsopoulos was assessed at the request of her solicitors, by psychiatrist Dr Klaas Akkerman in November 2009. In a report dated 5 November 2009 he recorded that on mental state examination, Mrs Mitsopoulos’s mood was depressed; her affect was agitated; her concentration and short term memory were down; she was irritable and tearful. He provided a diagnosis of major depression. He made no mention of any psychotic symptoms.
28. Mrs Mitsopoulos testified in these proceedings that “since Burwood” — the branch of the Commonwealth Bank where she was working when she became ill — there has never been a time when she felt well. She stated that she is now “sick the way I was in Burwood … nothing has changed”. Under cross–examination she initially denied hearing “voices in her head” but later conceded that she had once heard her grandfather’s voice. She agreed that her memory is poor.
Medical opinion on cause of incapacity
29. The best evidence about the cause of Mrs Mitsopoulos’s current incapacity is probably that given by Drs Napper and Skinner, who each prepared detailed reports and gave oral evidence concurrently. They agree that Mrs Mitsopoulos suffers from chronic paranoid schizophrenia and that the condition is constitutional and unrelated to employment. They also agree that the condition had developed by the time Mrs Mitsopoulos was seen by Dr Gibney in September 1999. While there is much about which they agree, they disagree on two critical points, namely whether Mrs Mitsopoulos continues to suffer from a reactive depression and whether she is incapacitated for employment by schizophrenia.
30. Dr Napper is of the opinion that Mrs Mitsopoulos’s schizophrenia is largely in remission. Dr Skinner disagrees. In her opinion while so-called “positive symptoms” are not present at all times, it is likely that they have and will continue to come to the fore when Mrs Mitsopoulos comes under stress or is not taking the appropriate dosage of medication. Dr Skinner pointed to her first-hand observation of Mrs Mitsopoulos exhibiting florid symptoms during interview in early 2010.
31. While Dr Napper did not dispute Dr Skinner’s observation of florid symptoms, he thought they were attributable to the difficulty he had been experiencing at the time of finding the appropriate dosage of medication and her distress at the discussion between her husband and Dr Skinner about hospitalisation. As he explained, the prospect of being “locked away” is immensely distressing for a person suffering from a mental illness. In a report prepared for these proceedings (dated 21 October 2010), Dr Napper stated that Mrs Mitsopoulos had been free of paranoid symptoms for “at least a year” and only occasionally experienced transitory auditory hallucinations. However in oral evidence he qualified that claim, stating that in late 2009 to early 2010, Mrs Mitsopoulos had been experiencing some breakthrough symptoms. He claimed these breakthroughs generally correlate with periods where Mrs Mitsopoulos either fails to take her medication or there has been some difficultly establishing the correct dosage. Dr Napper thought that Dr Skinner had overstated the risk of a breakthrough of positive symptoms and claimed that many sufferers of schizophrenia are able to function effectively in the workplace, providing their “positive” symptoms can be controlled.
32. A further point of difference between the experts is whether Mrs Mitsopoulos’s symptoms of depressed mood and panic attacks — which both agree are disabling — are attributable to schizophrenia. Dr Skinner believes that they are; Dr Napper disagrees. According to Dr Skinner, those symptoms are largely “negative symptoms” of schizophrenia and/or caused by the condition. Dr Napper on the other hand believes they are caused by the compensable condition, which has evolved over time into a “Panic Disorder with Agoraphobia and a Major Depressive Disorder”.
33. To put this debate in context it is necessary to make brief mention of the terms “positive” and “negative” symptoms of schizophrenia used by the experts. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th ed, 1994 (‘DSM-IV’), classifies the symptoms of schizophrenia into two broad categories: positive and negative symptoms. Positive symptoms include delusions, hallucinations and grossly disorganised behaviour. Negative symptoms include restrictions in the range and intensity of emotional expression (affective flattening), in the fluency and flattening of thought and speech (alogia) and in the initiation of goal directed behaviour (see DSM-IV, p 299).
34. Drs Napper and Skinner agree that depressed mood and anxiety can present as symptoms of schizophrenia. Dr Skinner is of the opinion that this is commonly the case with sufferers of schizophrenia; Dr Napper believes that it is no more common than within the community at large. Dr Skinner does not dispute that schizophrenia can co-exist with other psychiatric conditions but considers that in this case the better explanation for Mrs Mitsopoulos’s entrenched and treatment-resistant depression and anxiety, is that they are attributable to schizophrenia. Dr Napper believes it to be highly relevant that Mrs Mitsopoulos’s symptoms of anxiety and panic attacks pre-dated the onset of schizophrenia.
35. Dr Napper and Dr Skinner agree that Mrs Mitsopoulos is unfit for any employment. In Dr Skinner’s opinion, this incapacity is solely attributable to her schizophrenia. In her opinion, Mrs Mitsopoulos’s symptoms of hallucinations and delusions, thought disorder and behavioural disturbance are disabling in that they result in impaired concentration and cause Mrs Mitsopoulos to feel anxious and threatened and might lead to aggressive behaviour. She thought Mrs Mitsopoulos’s general presentation — unkempt appearance, distractibility and aggression — would also preclude her from being considered for any employment.
36. Dr Napper on the other hand thought that there was nothing in Mrs Mitsopoulos’s schizophrenia that stopped her working. In his opinion her inability to work is entirely the result of her chronic depressed mood, anxiety, panic attacks and agoraphobia.
Findings and conclusions
37. Whether Mrs Mitsopoulos is entitled to compensation for incapacity under the Act turns on whether, as she submits, “reactive depression” remains an operative or effective cause of her incapacity. That is a complex issue for a number of reasons.
38. First, in support of their respective positions, both parties say significant weight should be given to the change (according to the Bank), or lack of change (according to Mrs Mitsopoulos), in her symptoms since 1996. However the evidence available to make that assessment is limited. Apart from referring to Mrs Mitsopoulos suffering from anxiety, depression and stress, the Tribunal’s 1999 Reasons provide little detail about the nature of Mrs Mitsopoulos’s illness or the symptoms of that condition. Indeed, the Tribunal commented on the paucity of medical evidence it had been presented with, noting at [25] and [30], the failure of the treating psychiatrist to attend to give evidence.
39. Second, as Counsel for Mrs Mitsopoulos points out, what is before us is, at best, snapshots of Mrs Mitsopoulos’s condition and not necessarily representative. For example, despite suffering from schizophrenia since at least 1999, a number of practitioners who have examined her in the intervening period saw no evidence of psychosis (see for example the reports of Drs Morse, Costa and Akkerman and significantly the report of GP, Dr Mater). On the other hand, when seen by Dr Gibney in 1999, Dr Skinner in early 2010 and probably Dr Harvey-Sutton in 2009, she was exhibiting florid symptoms.
40. Third, as the evidence of Drs Napper and Skinner makes plain, there can be a degree of overlap between the symptoms of a depressive disorder and some of the “negative” symptoms of schizophrenia — lack of initiative and motivation, (possibly) flat affect and depressed mood. Dr Skinner considered that in Mrs Mitsopoulos’s case her lack of initiative and motivation, flat affect, depressed mood and anxiety were all attributable to schizophrenia. Dr Napper not only disputes that Mrs Mitsopoulos displays a flat affect but argues that the other symptoms nominated by Dr Skinner are attributable to schizophrenia.
41. Fourth, the only expert in a position to provide a longitudinal assessment of Mrs Mitsopoulos’s symptoms, Dr Napper, first saw her six years after she had left the Bank. By that time she was already being treated for schizophrenia. Like the other experts whose opinions are before us, he has not had the benefit of a comprehensive psychiatric history in respect of the first six years after Mrs Mitsopoulos left the Bank.
42. Fifth, since leaving the Bank, Mrs Mitsopoulos has displayed a constellation of fluctuating symptoms.
43. Counsel for Mrs Mitsopoulos contends that the Bank has not established that there has been a fundamental change in the nature of her symptoms since she left the Bank. Nor, as he contends, can the Bank point to a break in the symptoms. He contends that it is likely that those symptoms continue to be caused by the original illness - reactive depression - and not, as the Bank suggests, that those symptoms have been commandeered in some inexplicable way by the schizophrenia.
44. Probably the best evidence about Mrs Mitsopoulos’s initial symptoms is the list of symptoms recorded by Dr Taskas in his report of 10 November 2000. As Counsel for Mrs Mitsopoulos points out, those symptoms largely persist to this day. We think, consistent with the opinion of her husband, as recorded by Dr Skinner, it is likely that those symptoms have significantly worsened over time. However, that is not fatal to Mrs Mitsopoulos’s case. A finding that a person’s incapacity is “a result of” a compensable disease does not require that they establish that the symptoms of the disease remain unchanged. It is trite that the symptoms of many illnesses improve or worsen over time but remain attributable to the same cause.
45. However, not only have Mrs Mitsopoulos’s symptoms worsened since she left the Bank, new symptoms have emerged — auditory hallucinations, thought disorder and paranoid delusions. While, as Counsel for Mrs Mitsopoulos contends, Dr Taskas’s report indicates that at least by early 1999, she was experiencing a degree of paranoia, the delusional paranoia later observed —auditory hallucinations and thought disorder — are plainly new symptoms and are not attributable to the reactive depression.
46. While possible that Mrs Mitsopoulos continues to suffer from a depressive disorder and that her symptoms of anxiety and depression are “a result of” that condition, we think it more probable than they are now attributable to schizophrenia. While we agree with the proposition advanced by Counsel for Mrs Mitsopoulos, that the fact that that her symptoms have not followed the “usual course” that is, resolving after a reasonable period after being removed from the original stressor, is not determinative, nonetheless it raises the question as to whether in this case those symptoms remain attributable to the original compensable condition. We are of the opinion that a more plausible explanation for the increase in, durability of and apparent resistance to treatment of Mrs Mitsopoulos’s symptoms is that as Dr Skinner believes, they are attributable to schizophrenia.
47. Finally, leaving to one side the cause of Mrs Mitsopoulos’s symptoms of depression and anxiety, we are unable to accept Dr Napper’s opinion that no part of her incapacity is attributable to schizophrenia. That opinion is based on the assumption that Mrs Mitsopoulos’s positive symptoms are largely under control. While we accept that these symptoms are not always present, nonetheless, as conceded by Dr Napper and observed by a number of practitioners, they “break through” from time to time. Whether this is the result of the difficulties in finding the appropriate dosage of medication and/or Mrs Mitsopoulos’s long history of not taking her medication, or being placed under stress, it seems highly probable that in an employment environment, those symptoms would emerge from time to time. In our view, Dr Napper has overstated the extent to which Mrs Mitsopoulos’s positive symptoms of schizophrenia are under control.
48. For these reasons we have concluded that “reactive depression” is no longer an effective or operative cause of Mrs Mitsopoulos’s incapacity for employment.
49. Orders:
The parties agree that the period prior to the reviewable decision should not be the subject of any order of the Tribunal. As we understand it, the Bank has indicated that it would not be seeking recovery of monies paid to Mrs Mitsopoulos, in respect of the period from the date of the reviewable decision until the date of our decision. Accordingly, we find that as of the date of this decision Mrs Mitsopoulos no longer suffers from incapacity as a result of her employment at the Bank.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: .......................................[sgd]...................................
Associate to Senior Member BrittonDate/s of Hearing: 27 and 28 April 2011
Date of Decision: 7 July 2011
Counsel for the Applicant: Mr S BrennanSolicitor for the Applicant: Ms A Rossi, Maxwell Berghouse & Ives Solicitors
Counsel for the Respondent: Mr G Elliot
Solicitor for the Respondent: Ms B Audsley, Australian Government Solicitor
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