Murphy and Comcare
[2006] AATA 61
•27 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 61
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/826
GENERAL ADMINISTRATIVE DIVISION )
Re LINDA DIANE MURPHY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member P McDermott
Ms M J Carstairs, MemberDate27 January 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
............[Sgd]...........
P McDermott
Senior Member
CATCHWORDS
COMPENSATION – workplace stress – anxiety disorder – claim anxiety disorder due to workplace bullying and harassment – adjustment disorder – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988
Ileris and Comcare (1999) 30 AAR 98
REASONS FOR DECISION
27 January 2006 Senior Member P McDermott
Ms M J Carstairs, Member
Introduction
1. Ms Linda Murphy, who was born on 20 November 1946, worked as a client services officer with the Family Court of Australia (“the Family Court”) from 15 July 1996 until 31 January 2001 when she ceased employment with that agency after having accepted a voluntary redundancy.
2. On 9 February 2004 she made a claim under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for workers compensation for a “workplace stress and anxiety disorder” which she claimed was sustained in the course of her employment with the Family Court. We have to decide whether Ms Murphy is entitled to compensation under the provisions of the Act.
Background
3. A delegate of the respondent accepted liability for an “aggravation of an anxiety state” which was deemed to have been sustained on 17 May 2000 and awarded benefits up to and including 31 January 2001.
4. The delegate was satisfied that Ms Murphy’s employment with the Family Court contributed to her condition but he was unable to establish that her employment with the Court affected her beyond the date when she ceased employment with the Court.
5. On 4 July 2004 Ms Murphy requested a reconsideration of this determination.
6. A review officer concluded that there was no evidence to indicate the “aggravation of anxiety state” continued after Ms Murphy’s separation from her employment from the Family Court, and there was no ongoing effect from her employment with the Family Court.
Issues For Determination
7. We have to consider whether Ms Murphy is still incapacitated for work as a result of an injury sustained in her employment at the Family Court.
History of the Matter
8. In her evidence Ms Murphy claimed that she was suffering from an ongoing chronic illness, an anxiety state, caused by emotional abuse she experienced whilst working at the Family Court in 2000 and 2001. She claimed that she was regularly abused by clients and was concerned at a lack of management support and staff shortages.
9. Some difficulties occurred in 2000 when she sought leave. On 28 April 2000 Ms Murphy emailed her supervisors at the Family Court to query the status of her application for leave and to seek clarification why a fellow employee had been granted leave.
10. On 17 May 2000 Ms Murphy provided a medical certificate from Dr M Powell which stated that she was suffering from “workplace stress”. That certificate contained a statement that she would be unfit to return to work before 19 May 2000.
11. It is clear from contemporary records that apart from changes at work, there were also other issues that concerned Ms Murphy (ie “friends bereavements and other friends diagnosed with cancer, the possibility of her daughter moving to PNG”, - T13d).
12. On 11 August 2000 Dr Gerry Brady, general practitioner, certified that Ms Murphy was suffering from “a severe anxiety state caused by conflict in the workplace”. Dr Brady stated “She is not coping with dealing with the general public and has asked for transfer to other duties”. Dr Brady considered that “she urgently needs to be transferred away from the general public”. Dr Brady opined that she would cope very well “with a more administrative role”.
13. On 18 August 2000 a work performance report completed by Ms Diane Ferguson, who was then the supervisor of the Client Service Unit of the Family Court, noted the difficulties that Ms Ferguson had in managing Ms Murphy. On 22 August 2000 Ms Murphy wrote a 12-page submission in reply. On 28 August 2000 Ms Murphy sought advice from Ms Ferguson to discuss her return to work.
14. On 5 September 2000 a report was prepared by Dr John Sowby, specialist in occupational medicine. Dr Sowby considered that Ms Murphy then was suffering from a mixed anxiety/depressive disorder and was unfit for work. Dr Sowby concluded that Ms Murphy was “experiencing a moderate level of psychological symptoms which were impacting upon her general functioning including her vocational capacity”. Dr Sowby considered that these symptoms were likely to be the main cause for the deterioration in her work performance that was identified in the previous 3-4 months.
15. Dr Sowby recommended that Ms Murphy be given sick leave, and stated that it would be prudent to explore the availability of redeployment. Dr Sowby discussed his assessment and recommendations with Dr Gerry Brady.
16. On 18 October 2000 Ms Murphy sent an email to Mr Duncan Abbotts, her manager, in which she stated that she had concerns about the work environment. She stated: “At this point I would like to state that I feel that it is inappropriate to place me back in the same position which resulted in my anxiety problem in the first place”.
17. Mr Abbotts replied to Ms Murphy on 20 November 2000 and indicated that Ms Murphy would work in the listings area copying documentation for legal aid.
18. On 21 December 2000 Ms Murphy enquired about the possibility of a voluntary redundancy. On 12 January 2001 she formally accepted the voluntary redundancy that was offered. She ceased her employment with the Family Court on 31 January 2001. Between March 2001 and August 2001 Ms Murphy travelled overseas on holiday.
19. When she returned to Australia she looked for other work. Ms Murphy commenced employment with an Angus and Robertson bookshop in October 2001. She left that employment after 6 weeks as she had difficulties with her supervisor. In a statement dated 2 December 2004 Ms Murphy stated:
“I enjoyed the job, but became extremely agitated when the manager yelled at staff when she was stressed. When she yelled at me one day, countermanding an instruction given to me by the assistant manager, I began to shake uncontrollably and became very upset. I began to shake uncontrollably because of the anxiety (as was the case through 2000) and when I became ill with viral bronchitis, I resigned from the job knowing that I could not cope with the stress of the manager’s confrontational type of management style”.
20. On 25 January 2002 Dr Gerry Brady diagnosed Ms Murphy as suffering from “a chronic anxiety state”. On 1 March 2002 Dr Robert Moyle diagnosed Ms Murphy as suffering from a “major depression & panic disorder”. Dr Moyle certified that Ms Murphy was unfit for duties until 1 April 2002. On 21 March 2002 Ms Murphy was certified as being unfit for work until 21 June 2002.
Medical Evidence
21. The first medical witness was Dr Brian Hazell, a psychologist, who had prepared a report of 12 October 2004 (exhibit A2).
22. Dr Hazell had interviewed Ms Murphy on 27 September and 14 October 2004 as well as reading the report of Dr Graham George dated 9 July 2004. Dr Hazell was of the opinion that Ms Murphy suffered from an adjustment disorder which he considered was caused by her employment with the Family Court.
23. In cross-examination Dr Hazell stated that he had based his opinion on what he had been told by Ms Murphy and that he had not had any material from the Family Court. Dr Hazell also stated in cross-examination that he had not had regard to Ms Murphy’s medical history.
24. Ms Murphy herself stated in evidence that she did not tell Dr Hazell about previous illnesses “because they were prior and also, I did not consider that they had anything to do with my psychological state”. She also was of the view that as part of chronic fatigue syndrome, she suffered from “some anxiety and depression”.
25. It is fair to say that Dr Hazell expressed critical views of the use of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), describing its use as a “tragedy”.
26. Ms Murphy also called Dr Gerry Brady who has been her treating general practitioner. Dr Brady was of the opinion that Ms Murphy’s anxiety state is a continuation of the anxiety state that he diagnosed on 11 August 2000.
27. In cross-examination Dr Brady agreed that he first saw Ms Murphy on 5 January 2000, and agreed that he did not take a longitudinal history of Ms Murphy’s psychiatric or psychological health prior to 5 January 2000.
28. Dr Brady’s treating notes were placed in evidence before us showing that Ms Murphy’s anxiety symptoms were lessening prior to ceasing employment at the Family Court. On 15 September 2000 the following comments were entered on the file: “100 per cent better off work. Anxiety is much better, sleeping well, no depression, job interview with another soon, feels well physically”. (Exhibit R4)
29. Dr Brady’s records (Exhibit R4)showed the following
§On 12 October 2000: “No depression, anxiety has been okay until 1/52 when threat of return to work began. Willing to consider a trial of SSRI”.
§On 8 November 2000: “Anxiety recently after small amount of client contact, but significantly no depression”.
30. Dr Robert Moyle and Dr Graham George, psychiatrists, also gave evidence.
31. In a report dated 7 July 2004 Dr Graham George concluded: “I do not see a strong link between Ms Murphy’s employment with the Family Court of Australia and any ongoing symptoms that she has”. (T23)
32. Dr George considered that Ms Murphy had not sustained “any permanent effect or damage as a result of her work situation with the Family Court of Australia”. Dr George attributed Ms Murphy’s anxiety symptoms to her first marriage and said that the aetiology or nature of her condition appears to date back to her mid-twenties. He based this conclusion on the fact that Ms Murphy has described anxiety symptoms at the time of her first marriage when she was subject to domestic violence.
33. Dr George also considered that Ms Murphy suffered stress reactions when employed at Centrelink in 1994, when employed by the Family Court and when employed by Angus and Robertson.
34. Dr George was provided with a copy of Dr Hazell’s report. Dr George remarked that the report of Dr Hazell was a personality assessment inventory. Dr George urged caution about using a personality assessment inventory as a final diagnostic conclusion, because personality tests are tools for obtaining information in trying to draw a final assessment but do not give diagnostic conclusions in their own right.
35. Dr George pointed to the importance of taking an accurate history in a psychiatric assessment. He said: “if you do not take a good history, often you won’t draw the correct diagnostic conclusions”.
36. Dr George was extensively cross-examined by Ms Murphy. She questioned Dr George’s conclusion that she had anxiety problems before her employment at the Family Court.
37. We accept Dr George’s conclusions on this. They were consistent with the information that Ms Murphy provided at the interview, including that she told Dr George she suffered domestic violence during her marriage. Dr George remarked: “I drew some form of conclusion from the fact that when you said that for the last 2 years of your marriage you always felt as if you had a lump in your throat. And that is a particular anxiety symptom that we know as globus hystericus”.
38. Dr Robert Moyle saw Ms Murphy on 8 occasions between 1 February 2002 and 3 February 2004.
39. Dr Moyle observed that Ms Murphy was an obsessional lady who was born with a “highly strung” temperament. Dr Moyle considered that Ms Murphy is highly sensitive to criticism and, for that reason she is likely to have problems in the workplace especially when authority figures expect performance.
40. Dr Moyle in his report of 15 February 2002 stated that Ms Murphy considered that her previous health problems were caused by chronic fatigue syndrome. However, he concluded that Ms Murphy had long been suffering from an anxiety disorder.
41. Dr Moyle stated:
“Looking at the future, she now has the opportunity to make significant gains in the rest of her life if she can overcome, what she calls chronic fatigue syndrome but which she now realises to be depression complicating an anxiety disorder. The depression may have been precipitated by a viral illness such as Ross River Fever but is an independent illness in its own right at the present time”.(Exhibit R1)
42. Dr Moyle remarked that when Ms Murphy mentioned to him her “10 years of tiredness” (he clarified this as when she was in her forties), he considered that for this period she was “suffering from both depression and anxiety”.
43. We consider that Dr Moyle was justified in making his conclusions on the basis of the information that was provided by Ms Murphy at the interview. Ms Murphy challenged Dr Moyle on this conclusion but Dr Moyle reiterated his view that “conflict situations you described were several throughout your life and … there were incidents involving your father and incidents involving other people with yourself in conflict and that caused you to feel anxious”. We accept Dr Moyle’s conclusions on this.
Consideration Of Medical Evidence
44. A critical issue is whether the medical evidence supports Ms Murphy’s contention that her employment by the Family Court of Australia still contributes to her anxiety condition.
45. Dr Moyle observed in relation to Ms Murphy’s experience of not coping at Angus and Robertson: “I’m sure the Family Court abuse contributed to it”. Dr Moyle, when asked by the Tribunal whether he was able to say whether the effects of the employment at the Family Court had a long term or short term effect on Ms Murphy’s condition, said that there was no way of telling this.
46. However, Dr Moyle did not conclude that Ms Murphy’s employment by the Family Court was still contributing to her condition. In his evidence Dr Moyle said:
“I’m not of the opinion that she sustained any permanent effect or permanent damage as a result of her work situation within the Family Court of Australia. It may well be that the nature of her work has exacerbated an underlying condition, the symptoms of which often vary according to psycho-social stressors, as well as individual constitution and genetic vulnerability”.
47. Dr Moyle had earlier stated: “The nature of an anxiety situation is that it can relapse or remit over time and often is dependent on the perceived stress in a person’s life”.
48. Dr George stated that Ms Murphy’s employment by the Family Court was not still contributing to her condition. Dr George said: “I couldn’t actually just draw the line and say, well, it’s directly related to what happened in the Family Court”.
49. Dr George considered that the nature of her work had exacerbated an underlying condition, the symptoms of which often vary according to psychosocial stressors, as well as an individual’s constitution and genetic vulnerability. Dr George remarked: “…you’re the sum total of what’s ever happened over your entire lifetime plus a contribution through genetics, …anxiety disorders are contributed by genetics, as are most illness…”.
Findings of Tribunal
50. We point out that “the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision”: see Ileris and Comcare (1999) 30 AAR 98 at 121.
51. In deciding this matter we have carefully considered the medical evidence before the Tribunal. A number of lay witnesses who were called by Ms Murphy, including her daughters and fellow employees from the Family Court, gave evidence concerning the condition of Ms Murphy. Their evidence, while offering valuable support to aspects of Ms Murphy’s experiences, cannot be given the same weight as cogent medical evidence.
52. Both Dr George and Dr Moyle have concluded that Ms Murphy has been suffering from an anxiety disorder for some time before her employment by the Family Court.
53. Dr George has concluded that he does not “see a strong link between Ms Murphy’s employment with the Family Court of Australia and any ongoing symptoms that she has” (T23).
54. In his evidence, Dr Moyle similarly concluded:
“At the present time, I do not see a strong link between Ms Murphy’s employment with the Family Court of Australia and any ongoing symptoms that she has. The nature of an anxiety situation is that it can relapse or remit over time and often is dependent on the perceived stress in a person’s life”.
55. Dr Brady thought that there was a link, however, we prefer the evidence of the specialists to that of the general practitioner.
56. We accept the evidence of Dr George and Dr Moyle and find that Ms Murphy has been suffering from an anxiety disorder before her employment by the Family Court. We also accept that their evidence that there is no “strong link” between her employment with the Family Court and her present condition.
57. We have also placed some weight on the opinion of Dr Moyle that Ms Murphy is likely to have problems in the workplace especially when authority figures expect performance. This opinion is, in fact, quite consistent with Ms Murphy’s own statement on her experience at Angus and Robertsons that she “could not cope with the stress of the manager’s confrontational type of management style”.
58. We consider that the reviewing officer was justified in concluding that Ms Murphy had suffered an “aggravation of anxiety state” during her employment with the Family Court but that there was no evidence to indicate that the “aggravation of anxiety state” continued after Ms Murphy ceased her employment there.
Conclusion
59. The case that was advanced by Ms Murphy was fairly summarized in her statement of 2 December 2004: “My problem with confrontation, conflict and anxiety and loss of confidence about my work performance and ability is a direct consequence of the treatment that I suffered during 2000 in the Family Court”. We have concluded that this contention is not supported by the evidence of the specialists.
60. We do not accept that the aggravation of Ms Murphy’s underlying anxiety state continued after Ms Murphy ceased employment at the Family Court.
Decision
61. The Tribunal affirms the decision under review.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Ms M J Carstairs, Member
Signed: Jeff Millls
. Legal Research OfficerDate/s of Hearing 20 May 2005, 11 July 2005, 13 July 2005, 3 October 2005
Date of Decision 27 January 2006
The Applicant appeared in person
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs Abbott Stillman
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