Naomi LINDOY and Comcare
[2014] AATA 838
•7 November 2014
[2014] AATA 838
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1253
Re
Naomi LINDOY
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal The Hon R J Groom (Deputy President)
Dr R Walters (Member)Date 7 November 2014 Place Hobart The Tribunal affirms the decision under review.
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Dr R Walters (Member)
CATCHWORDS
Workers compensation - major depressive disorder (single episode) - whether an aggravation of pre-existing psychiatric illness - not contributed to, to a significant degree by employment - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act [1988]
CASES
Wiegand v Comcare Australia [2002] FCA
SECONDARY MATERIALS
REASONS FOR DECISION
Dr R Walters
INTRODUCTION
Naomi Lindoy was a lawyer employed at the ATO (EL1 level) in the Hobart office. She, her husband, Ben, and their four children, moved to Hobart from Canberra in October 2008 for reasons associated with Ben’s work as an IT consultant. Ms Lindoy applied for a compassionate posting to Hobart, which was granted and she was able to transfer as an EL1 when a position that was vacant in the Upper Mount Gravatt office (Queensland) was relocated to the Hobart office to accommodate her request. It is not in dispute that she was considered to be a very capable ATO officer. It is also not in dispute, having been conceded by Ms Lindoy, that she had had certain mental health issues (anxiety and depression) dating from the late 1990s and which had become problematic in Canberra prior to the move to Hobart.
In early 2009 whilst juggling the challenges of settling into a new job in a new city and caring for 4 young children (one of whom was thought to have been on the autism spectrum) in day care and at school, Ms Lindoy decided to proceed to interview for promotion to an EL2.1 position that she had applied for.
On 19 February 2009 she presented for the position interview. Upon arrival for the interview however, she experienced what she described as “a major meltdown”. She rang her husband in such an agitated state that he took her to her general practitioner for immediate medical attention. Her GP arranged an urgent psychiatric assessment for the following day. Dr Turnier-Shea, the psychiatrist she saw, hospitalised her, changed her pre-existing psychotropic medications and took over her mental health care, care that continues to this day.
During 2009 Ms Lindoy had extended periods of time away from work due to both mental and physical illness as well as a number of significant family issues including those related to a family financial crisis, her husband's health and that of an autistic child. She had plastic surgery in October 2009 for abdominal skin folds she found unsightly and there were some complications associated with this surgery. During the same period, she set up and ran a formal and bridal wear business from home.
In December 2010, at the request of her employer, following further extended periods of leave, Ms Lindoy was examined by Dr Pauline Miller to assess her capacity for work. During this assessment, Ms Lindoy raised, apparently for the first time, her belief that she had been unfairly treated and excluded at the ATO Hobart office for some time from when she started in the Hobart Office, until February 2009 when she believed her serious problems began. Dr Miller’s opinion as a result of the assessment was that Ms Lindoy was fit for the EL1 role.
Dr Turnier-Shea however continued to advise that Ms Lindoy was unfit for work and she has not worked in her normal ATO position since about August 2011.
On 8 September 2011 she lodged a claim under the Safety, Rehabilitation and Compensation Act 1988 for compensation for a major depressive disorder (single episode) “triggered” on the day of the tax office position interview 31 months earlier (19 February 2009).
Comcare rejected that claim in a determination dated 24 November 2011.
Ms Lindoy now contends that on 19 February 2009 she suffered an aggravation of her pre-existing psychiatric ailment. Comcare disagrees.
The combined effect of sections 14, 4, 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act) is that:
·a person may be compensated if the person has suffered an injury;
·an injury may be a disease;
·a disease is an ailment or an aggravation of an ailment (which in turn may include acceleration or a recurrence), that was contributed to a significant degree (i.e., to a degree substantially more than material) by the person’s employment.
THE ISSUES FOR ME TO CONSIDER ARE:
(i)Did Ms Lindoy suffer an aggravation of her pre-existing psychiatric condition?
(ii)If so, was the aggravation contributed to, to a significant degree, by her employment?
DID MS LINDOY SUFFER AN AGGRAVATION OF HER PRE-EXISTING PSYCHIATRIC CONDITION?
It is not in dispute that Ms Lindoy suffered from a pre-existing psychiatric illness. She continues to experience problems that fluctuate in their severity.
Ms Lindoy’s oral evidence, her medical history and the records of her Canberra GP, Dr Sharma, show that Ms Lindoy received treatment in the late 90s and, more importantly, that she was experiencing anxiety and depression in Canberra prior to moving to Hobart. She had also discussed certain intra-office stressors within the Canberra ATO with Dr Sharma prior to her posting to Tasmania. She required antidepressant medication for her anxiety and depression at that time.
On 13 January 2009, one month before the incident at the centre of Ms Lindoy’s claim, one of her Hobart GPs, Dr Alison Nicholson, recorded the following:
“Depressed – put on Lexapro in Canberra, 9 months – first on lower dose for four weeks. Not suicidal – occasionally thinks of driving into power pole, has had major stresses; see social history, added problem with URTI recently and husband has had bronchitis and tendency to depression (he found it very hard to let his employer go in Townsville – was suicidal, but got himself to doctor). Several times has lost her memory and disorientated in Canberra when very stressed – just twice. Knew the floor was not the right one. (See transcript. P.161)
Significantly a referral letter written on 19 February 2009 to Dr Turnier-Shea by another of Ms Lindoy’s GPs, Dr Zulovic, also describes Ms Lindoy as suffering from “severe depression for 10 months” for which she had been taking the antidepressant medication, Lexapro.
19 February 2009 was the day that Ms Lindoy claimed to be the date of injury, the day she suffered what she described in her oral evidence to the Tribunal as a “major meltdown” as a result becoming “so run down” that she was “not able to function”. The question is whether this episode was simply a manifestation of her ongoing condition or, as she contended in her claim (lodged 31 months after the event on 8 September 2011), a breakdown that was triggered on the day by her feeling it was impossible to succeed in the “hostile environment” she found herself in in the Hobart ATO.
In her claim, to the question of whether she had previously had a similar symptom, injury or illness, work-related or otherwise, Ms Lindoy only listed depression following a first miscarriage in 1998 and anxiety in early 2007 and yet clearly, on the basis of her treating GP’s clinical notes, her own oral evidence and Dr Sharma’s records, she was already suffering a condition in 2008 that required ongoing treatment when she moved to the Hobart ATO and decided to pursue her application for promotion.
There are a number of inconsistencies in the medical histories given by Ms Lindoy to the various assessing and treating doctors with whom she has consulted, particularly regarding what she believed was the cause of the events of 19 February 2009, as well as those relating to her past mental health history. For example, to Dr Turnier-Shea, treating psychiatrist, Ms Lindoy denied a past history of any serious mental health problems requiring intervention prior to Feb 2009. She also gave a history devoid of any mention of workplace stressors until her 19th consultation on 4 March 2010 when she first mentioned any workplace factors. On that basis Dr Turnier-Shea opined in her report of 24 October 2011 thus: “My conclusion is that the current condition suffered by Ms Lindoy is not an aggravation of a pre-existing condition”.
To Dr Strauss, psychiatrist, Ms Lindoy first gave a history of having first been prescribed antidepressant medication in 2008 in Canberra. She denied any memory of earlier treatment for anxiety or depression. Dr Strauss, after discovering Ms Lindoy’s pre-existing condition from medical records, concluded, on the basis of Ms Lindoy’s version of events in the Hobart ATO office, that her already vulnerable state was exacerbated by the “her experiences in Hobart in the workplace” as described by her to Dr Strauss. (For reasons outlined below, I am not persuaded by Ms Lindoy’s description of conditions at her workplace.) These inconsistencies in her medical histories and descriptions of her workplace made it difficult for me to rely upon the various opinions given and the conclusions drawn by treating and examining doctors. Thus I gave more weight to the contents of the medical records of the treating practitioners, made at the time of consultation.
It is significant that having been taken to her GP, Dr Zulovic, by her husband on 19 February 2009 in an emergency situation she did not mention anything to Dr Zulovic about work-related issues having contributed to the crisis nor did she do so the next day when she urgently saw the psychiatrist, Dr Turnier-Shea as mentioned above.
As well as coping with her severe depression in 2008 and 2009, Ms Lindoy and her husband gave evidence of a number of other factors that contributed to the pressures on her over that period. These included the uncertainty of her husband’s work situation necessitating a move to Hobart; the family financial pressures, described by Ms Lindoy as “huge”; settling into a new position in a new office; moving house and finding schools and day care for her children; as well as the general physical health of herself, her husband and her children during that period.
It is generally acknowledged that major depression and the issues it brings with it, is a condition that is difficult to live with even in a stable situation, let alone the one Ms Lindoy found herself in over that period. Ms Lindoy describes the pressures she was experiencing prior to 19 February 2009, in her email to her supervisor, John Hickson, dated 9 February 2010. They included her husband’s hospitalisation for severe illness on three occasions in 2009, the whole family having contracted swine flu, serious financial pressures, moving into a house that was in substantial disrepair, and further difficulties with her youngest son. Apart from some IT access issues she makes no mention of any problem she is experiencing within the Hobart office. Ms Lindoy also stated in that email that she has “now been diagnosed with depression and (is) undergoing treatment”. Given her past history, the intensity with which she described the incident in February 2009, just 12 months earlier and the treatment she had been receiving since then, this is a puzzling statement. Ms Lindoy took a large amount of leave during 2009 but as outlined in her email, she attributed this to issues other than workplace problems.
I also note that, within less than two weeks of the incident on 19 February 2009, Ms Lindoy registered a home business, Kirra’s Secret, to allow her to buy on eBay and trade from home and later at a rented site, in a formal and bridal wear business. She undertook this business activity, with her husband’s assistance, at a time when, according to her verbal evidence, she was “suicidal”, confined to her house and “curled up in a ball unable to do anything each day… apart from crying”. When this inconsistency was put to her, her response was that she needed to find something to occupy her time. She also gave evidence that she was so ill in February 2009, and so suicidal, that she was unable to make a claim for compensation at that time.
I am satisfied that, in accordance with the opinions of Drs Sale, Strauss and Turnier-Shea that Ms Lindoy has and continues to suffer from a significant and chronic mental health condition, the natural history and progression of which means it will fluctuate in severity and will require constant monitoring and management.
However, like Dr Turnier-Shea I am not satisfied that she suffered an aggravation of that pre-existing condition on 19 February 2009.
Rather, I consider that, Ms Lindoy suffered a fluctuation in the severity of her well-established mental health condition. This did not amount to an aggravation, or, if it did, it was short lived as her work establishing her formal and bridal wear business less than two weeks later, indicates.
However, in case I am wrong on this point, I will proceed to consider whether any aggravation that may have occurred was contributed to, to the requisite degree, by her employment.
WAS ANY AGGRAVATION CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY MS LINDOY’S EMPLOYMENT?
Ms Lindoy was an experienced ATO officer, having commenced her career there in 1995.
Her duties in Hobart were as an EL1 in the Senior Technical Team, Superannuation Department. Her supervisors were based in Brisbane.
Benjamin Mangan, Project Manager with the Superannuation and Data Management Team in Hobart and Paul Clark, Director, gave evidence that Ms Lindoy was considered by her colleagues to be a very capable and conscientious officer, whose abilities justified her ranking at EL1. This was also exemplified by the fact that when Ms Lindoy applied for a compassionate posting from Canberra to the Hobart ATO, a vacant position of the same level (EL1) in the Queensland, Upper Mount Gravatt office was relocated to Hobart.
Ms Lindoy claims that the aggravation of her condition relates to the environment and culture of the Hobart ATO, which she described as being “hostile”. This, she claims, was such that she felt her “presence appeared to be resented” and she “did not feel welcome or accepted”. Rather she was “treated as a mainland outsider that could not be any good because of the person who had taken her on transfer”. Ms Lindoy claims she was exposed to “innuendo, gossip, team members complaining about each other and management” and that the people she worked with “were ganging up” on her as she “had taken their EL1 position”. She also felt that her colleagues were withholding information regarding their work roles, where to find job aids and which systems to use. She claims to have asked for assistance at the time but that Brisbane supervisors referred her to the Hobart team and “they did not appear to have time for her”.
Ross Ferguson, of the Complex Advice Team, gave evidence that he had experienced no difficulties working in the Hobart office, and, in particular, did not ever see any new member of the team being made to feel like an outsider.
Similarly, Messrs Mangan and Clarke both described the Hobart office as a harmonious one, devoid of gossip and exclusion and with a good culture.
There was no evidence, other than Ms Lindoy’s, that indicated that Ms Lindoy was treated unfairly or unduly harshly by her colleagues or her supervisors in the ATO, nor that the culture she described existed in the Hobart ATO was unusual or hostile. Whilst Ms Lindoy did claim to have other witnesses who would corroborate her contentions re the conditions she claimed existed in the Hobart office, she chose not to call them to give evidence.
On the evidence presented, I am not persuaded that there was any attitude or behaviour in the Hobart ATO such that any person, including the Applicant, could perceive them to have indicated that the she was being treated unreasonably or unfairly by those in the ATO.
In Weigand v Comcare 2002, the Federal Court said:
“If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”
The occurrences that Ms Lindoy perceived to mean that she was excluded and otherwise poorly treated, did not, on the evidence before me, take place. Therefore, her perceptions of exclusion and unfair treatment cannot, on the basis of the reasoning in Weigand, ground a claim for aggravation.
Certainly Ms Lindoy made no complaint to that effect, until she submitted her claim in September 2011. Indeed she had quite clearly detailed her perceived reasons for her inability to work and for her periods of extended leave during 2009, in her email to John Hickson, dated 9 February 2010.
It follows that any aggravation Ms Lindoy may have suffered was not contributed to a significant degree by her employment.
CONCLUSION
Given that I have concluded that Ms Lindoy did not suffer an aggravation of her pre-existing psychiatric condition and that, even if an aggravation did occur, it was not contributed to a significant degree by Ms Lindoy’s employment, it follows that she has not suffered an injury within the meaning of the Act and Comcare is not liable under the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 40 (forty) paragraphs
are a true copy of the reasons for the decision
herein of Dr R Walters, Member.
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Dated
Date(s) of hearing 25, 26, 27 March 2014 & 10, 11, 12 June 2014
Solicitors for the Applicant Ms Katrina Stouppos, Slater & Gordon Lawyers
Solicitors for the Respondent Ms Naomi Richards, Australian Government Solicitor
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