O'Brien and Comcare
[2005] AATA 122
•9 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 122
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/720
GENERAL ADMINISTRATIVE DIVISION )
Re LYNN O’BRIEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 9 February 2005
Place Brisbane
Decision The Tribunal affirms the decision under review.
............[Sgd]..........
M J Carstairs
Member
CATCHWORDS
COMPENSATION – incapacity – whether applicant suffers from post traumatic stress disorder – diagnosis of adjustment disorder with anxious mood preferred – applicant not incapacitated for work – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19
Newell and Australian Postal Corporation [2001] AATA 595
REASONS FOR DECISION
9 February 2005 Ms M J Carstairs, Member 1. This is an application by Lynn O’Brien (the applicant) for review of a decision made by Comcare.
2. The applicant was represented by Mr N Jarro of counsel instructed by Gilshenan and Luton solicitors. The respondent was represented by Mr B Dubé of counsel, instructed by the Australian Government Solicitor.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 and exhibits A1-A5 for the applicant and R1-R10 for the respondent.
BACKGROUND
4. The applicant is aged fifty eight. She commenced with the Australian Public Service in 1983. From 1995 she worked with the Australian Taxation Office (the ATO) in Brisbane. In 1999 when she made the compensation claim which is now the subject of review by the Tribunal she worked in the secretariat of the Tax Agents’ Board, and was employed four days per week on a partial invalidity basis related to her asthmatic condition which was diagnosed in the early 1990’s.
5. On 13 January 1999 a power failure occurred at Terrica Place in Brisbane where the ATO and Tax Agents Board were located (the incident). The applicant suffered an asthma attack during the incident. She required assistance from paramedics and in the evacuation process from Terrica Place she was carried in a wheelchair via the stairwell from her 16th floor office. She was taken to hospital and was discharged that day.
6. The applicant was incapacitated for work after the incident and was away from work between 13 January 1999 and 20 January 1999. Her compensation claim for aggravation of asthma was accepted for that week of incapacity. On 19 April 1999 she claimed compensation for post traumatic stress disorder (PTSD). The claim was not accepted, however on 13 September 1999 her claim for a psychiatric condition sustained in the incident was granted, with the psychiatric symptoms being accepted as a consequence of the asthma attack and diagnosed as anxiety adjustment disorder with anxious mood.
7. The applicant had several periods of leave between January 1999 and February 2000, including a period of some six months long-service leave from about July 1999.
8. On 14 February 2000 the applicant returned to work on a graduated plan. She was moved to a ground floor office, away from her usual workplace at Terrica Place, as part of her return to work program. Between February 2000 and May 2000 her work performance was held to be unsatisfactory, and the ATO considered initiating the inefficiency process. She ceased employment on 26 May 2000 when she retired from the ATO. She then claimed and was granted disability support pension from Centrelink. She has not worked since this time.
9. The applicant sought continued incapacity payments from the date of her retirement from the ATO. On 29 November 2001 the respondent decided that she was not entitled to incapacity benefits from the date of her retirement because her retirement had been voluntary; she had not demonstrated any attempts to secure alternative employment; and she was capable of working in a low rise workplace. On 7 August 2002 the respondent affirmed this decision.
10. The issue for the Tribunal is whether the applicant is entitled to incapacity payments after she left her employment with the ATO. The applicant says she is entitled because her psychiatric condition (PTSD) caused ongoing incapacity. She says that this made her inefficient in the workplace and her retirement, properly understood, was not voluntary.
EVIDENCE
11. In her claim for compensation dated 18 January 1999 the applicant described the incident which she said rendered the air-conditioning system, elevators, public address system and fire alarms non-operational. She said that about 3pm she was experiencing difficulty breathing. In her oral evidence, she said that she was suffering a panic reaction and she believed that she would die. An ambulance service was called, and after some delay in reaching her, she was stabilised with Ventolin and oxygen. In her oral evidence the applicant vividly described her distress during the evacuation.
12. The applicant said that her evacuation down the stairwell was fraught: there were a number of people exiting at the same time; it was hot in the stairwell; she was suspended above the stair railings as they transported her down sixteen flights; and she feared being tipped over the stairs during the descent. She said that when she returned to work after a week’s leave she was extremely apprehensive and concerned about building safety issues. She said that she was aware that by March or April 1999 she was obsessive in monitoring whether elevators in the building were working, and checking the safety procedures that were in place. Her behaviour brought adverse comment from her supervisors who were concerned about her inattention to her work. However she said she was unable to stop her behaviour. About this time her general practitioner, Dr S Lawnton, referred her to a psychiatrist, Dr J Wright.
13. In a written statement dated 18 January 2002 (T55a) the applicant stated that the ATO had not acted quickly to relocate her to a ground floor office away from Terrica Place. This occurred in February 2000. She said that it was difficult for her to liaise with others from the Tax Agents’ Board, and she was made to feel uncomfortable that colleagues were required to transport files from the main office to her off-site location. She referred to other aspects of her treatment which she said were demeaning.
14. The applicant said that it was made clear to her that the work with the Tax Agents’ Board would come to an end by June 2000 and she had discussions with her supervisor about other work. Certain positions were in suburban offices of the ATO. She said that she resisted these proposals because the travel involved was unsuitable because of her asthma condition. In early 2000 the ATO commenced inefficiency proceedings in regard to the standard of her work. The applicant stated that her inefficiency at work, which she did not deny, was a direct result of her medical condition and workplace harassment to which she said she was subjected.
15. In oral evidence the applicant agreed that her work performance in 1999 was poor, however she said that she was not aware of any unfavourable written reports. She said that about when the inefficiency process commenced she was told that if she wished to remain after May 2000 she would have to accept public contact work in the ATO. The applicant said that her medical condition prevented her from doing that work. Under cross-examination she denied that she desired to leave work before June 2000 in order to maximise her superannuation entitlements and she denied that she chose the voluntary inefficiency process under the Workplace Agreement as a shortcut method to do this.
16. Under cross-examination about an entry in Dr Wright’s clinical notes dated 4 October 1999 which read has decided to retire this year, the applicant said she did not remember saying this to Dr Wright, nor did she recall having reached such a decision, and he may have been paraphrasing her comments. She acknowledged that she had expressed interest in redundancy packages being offered by the ATO towards the end of 1999 but said no offer was made to her.
17. The applicant said that she accepted the course of the voluntary inefficiency process after discussions with the union. Nevertheless she maintained that in reality the ATO forced her retirement by not fully recognising her anxiety condition and by failing to put in place all the recommendations by the Commonwealth Medical Officer (the CMO) about her return to work. She stated further that there were ongoing problems in early 2000 including other power failures which reinforced her anxiety. However the applicant agreed that she had said to Ms H Williams, psychologist, as reported on 17 March 2000 (exhibit R1), that her anxiety was alleviated when she was relocated to the ground floor office.
18. The applicant said that when the discussions took place about the inefficiency process she simply wished to get away from the work place. She said she was embarrassed by her inefficiency and wished the process to finish quickly, which would not have occurred if the process was involuntary.
19. In a written report dated 22 February 2000 (exhibit R1), Ms Williams stated that the applicant reported experiencing no anxiety working on the ground floor, but continued to experience anxiety if required to enter an elevator. She said:
[The applicant] reported that she hoped to finalise her compensation claim with Comcare and be deemed fully fit for her usual work position as soon as possible. She stated that she would then like to exit the company by way of voluntary inefficiency so that she could spend more time with her partner who has recently been ill.
20. In a written statement dated 11 October 2004 (exhibit R8) Ms L Jamieson, Secretary of the Tax Agents’ Board, stated that she had supervised the applicant’s return to work in February 2000. She said there were concerns with the applicant’s work performance and she had dealt with this as a staff issue as reflected in minutes of meetings with the applicant (attachments C, D and E to exhibit R8).
21. In a memorandum completed after a meeting with the applicant on 10 May 2000 (T55(a)) Ms Jameson stated that she had told the applicant that there would be no further work available to her with the Tax Agents’ Board after May 2000. Ms Jamieson stated that the process of voluntary and involuntary inefficiency was discussed with the applicant. She noted that the applicant had counter-signed the report dated 23 May 2000 (T48) in which Ms Jamieson noted that the option for re-training with Public Assistance at the APS 3 level had been canvassed with the applicant.
22. In oral evidence Ms Jameson said that it was well-known in the Tax Agents’ Board secretariat that the applicant was intending to leave work. She said that in written notes of a meeting with the applicant dated 5 April 2000 (attachment D to exhibit R8) she recorded that the applicant’s goal was to leave work. Ms Jamieson said that she pursued options for ground floor locations at the ATO for the applicant, consistent with recommendations made by the CMO and that a position in a call centre was the only option identified. She said the applicant was difficult to place, but that options would have continued to be explored for her placement except that the applicant had chosen voluntary inefficiency to terminate her employment with the ATO.
23. The Tribunal had a number of medical certificates signed by Dr Lawton, who diagnosed PTSD, which he said was based upon reports of psychiatrists. Dr Lawton said that he was aware that the applicant was keen to leave work as her partner was ill. He agreed that he had recorded in his clinical notes dated 5 May 1999 that the applicant was not as anxious as she had been, and he agreed that he certified the applicant as fit to return to work in February 2000 as long as she was located on the ground floor. In oral evidence Dr Lawton said that in certifying her as fit to return to work he had underestimated her psychiatric condition.
24. In a report provided to National Bank Insurance Claims Officer dated 31 July 2000, (exhibit R2) Dr Lawton said that the applicant had an adjustment type disorder with anxious mood and had presented with anxiety, nightmares, sleep disturbance, somatic gut upsets, and worsened asthma.
25. In a report dated 7 December 1999 (T21), Dr Wright diagnosed the applicant as suffering a psychiatric disorder of adjustment type with anxious mood. He said she was suffering flashbacks and had become pre-occupied with security at her workplace. Dr Wright noted that the applicant was improving and he related it to her anticipation that she would finish work towards the end of the year. He said when she is no longer exposed to working on the 16th floor of the Tax office building her psychiatric condition is likely to significantly improve if not resolve.
26. In a report dated 29 July 2003 (exhibit A4) Dr Wright diagnosed the applicant as having PTSD, which he said was chronic and attributable entirely to the stressful incidents. He agreed that the applicant suffers dysthymic disorder as diagnosed by Dr F Varghese, consultant psychiatrist, but said that this diagnosis was not inconsistent with the presence of PTSD. He said PTSD is diagnosed where a stressful situation is perceived as life threatening and results in severe symptoms predominantly centring on reliving experiences, intrusive memories, flashbacks and nightmares. Dr Wright said that he did not know why he had alternated between the diagnosis of PTSD and adjustment disorder with anxious mood. He agreed that hypervigilance was more typical of adjustment disorder, but said that anxiety and obsessive behaviour were common to both conditions.
27. Dr Wright said that the applicant told him in 1999 that she wished to leave work, and he confirmed that he recorded her comment has decided to leave work this year in a clinical note on 4 October 1999 (exhibit R4) and will finish before Xmas – looking forward to finishing up. He pointed out that he did not see the applicant between December 1999 and August 2000 and did not know what happened to her during that time.
28. Dr Wright said that by December 2000 the applicant’s dreams of the incident and certain other symptoms had settled although flashbacks might still occur. He said her condition might be referred to as PTSD in remission. In oral evidence he said that it now seemed as though her return to work in February 2000 had led to a return of symptoms. In a report dated 3 October 2000 (T32) Dr Wright said the applicant still suffered from intrusive memories, sleep disturbance, flashbacks and phobic avoidance and he had referred her for treatment in the form of Eye Movement Desensitisation and Reprocessing (EMDR) often used in the treatment of PTSD.
29. In a report dated 24 August 1999 (exhibit R1), Dr D Alcorn, consultant psychiatrist, diagnosed the applicant as having adjustment disorder with anxious mood or specific phobia of the Terrica Place building. He stated:
I am not unequivocally convinced that she meets the criteria for Post-traumatic Stress Disorder. Although the subject has been confronted with an episode involving actual threat to herself and her physical integrity and this has been associated with fear and helplessness, she does not volunteer a full gamut of Post-traumatic Stress Disorder symptoms at this time. She does not intrusive experiences which consist mainly of visualisation of being in the building and this is accompanied by hypervigilance concerning changes in the building milieu whilst there…….. she did not nominate anxious arousal, anger or irritability, defensive avoidance or dissociation at a significant level.
30. Dr Alcorn considered that the applicant would become increasingly avoidant if she did not return to some form of work and he recommended her continuing treatment through therapy and medication. He queried whether she would experience difficulty if she were in a public contact position but he saw no problem with her working in a back office setting of a low rise building.
31. In a report dated 28 May 2001 (T43) Dr M Likely, consultant psychiatrist, diagnosed the applicant as suffering from adjustment disorder with mixed anxiety and depressed mood, partially remitted. Dr Likely noted that the applicant had lengthy absences from work and that her symptoms were triggered by return to the workplace. He also noted that she was in conflict with her supervisor whom she perceived was belittling her. At the time of the report Dr Likely considered that the applicant’s symptoms had partly remitted with treatment, she continued to have interrupted sleep and symptoms of phobic anxiety relating to tall buildings or reminders of the incident. Dr Likely noted that the applicant had no psychiatric symptoms prior to the incident although he considered that there was some family history of obsessive compulsive disorder. He considered that she experienced helplessness and horror during the incident.
32. Dr Likely considered that the applicant would gradually improve, but that some symptoms of anxiety were likely to persist indefinitely. He said that the applicant was not fit for any type of work
33. In a report dated 23 May 2003 (exhibit R7) Dr F Varghese diagnosed the applicant as suffering adjustment disorder. Dr Varghese took a comprehensive history of the incident in January 1999 and the applicant’s preoccupation with security when she returned to work. The applicant told Dr Varghese that she became obsessive about safety issues and at work thought of nothing else. She expressed her difficulties with entering Terrica Place and her vivid recall of the evacuation. She told Dr Varghese that her worst period was from April 1999 to December 1999, but also stated that her symptoms improved little between December 1999 and May 2000.
34. Dr Varghese diagnosed the applicant as having suffered an adjustment disorder with anxiety and depressed mood after the incident. He said the adjustment disorder should have settled within months but the applicant then developed a major depression which fluctuated but was now in remission. He concluded that her diagnosis now was of mild dysthymia. He said the applicant presented well on a mental state examination and showed no evidence of pervasive anxiety or depression. He noted that she was angry that she was treated unfairly by the ATO in that her individual needs were not taken into account after the incident. He considered that this could have contributed to her depression. Dr Varghese considered that the applicant’s asthma was a significant factor in her depression and he suggested that without that condition she would have had a better recovery from her depression.
35. In oral evidence Dr Varghese said that the incident was not the kind of event that leads to PTSD. He said that the anxiety of PTSD is immediately observable in those patients who have the condition. Dr Varghese said the applicant lacked certain features of PTSD such as hyper-arousal. He said that she had no symptoms of disassociation; rather than this she was able to talk comprehensively about the incident. He said that he gave precedence to depression over anxiety in the applicant’s symptoms.
36. In a report dated 27 January 2000 (exhibit R2) Dr G Knight, consultant in occupational medicine, supported the desirability of the applicant working in a low rise office. He considered that she was able to sustain her previous working hours of four days per week, taking into account her asthma and the psychiatric condition.
CONSIDERATION OF THE ISSUES
37. The Safety Rehabilitation and Compensation Act 1988 (the Act) provides that compensation is payable in respect of an injury that results in death, incapacity for work, or impairment. The applicant’s claim in respect of the injury sustained in the incident has been accepted and it appears from various materials in the documents that liability has been extended from time to time for medical treatment for the condition of adjustment disorder, beyond the initial determination that liability was accepted to 1 October 1999. The issue is whether the injury results in any incapacity for work after 26 May 2000.
38. Section 4(9) provides:
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
39. Mr Jarro submitted that there was no dispute that the applicant has a psychiatric condition and that the majority of medical practitioners identified it as PTSD. He submitted that the applicant was in the same position as the applicant in Re Newell and Australian Postal Corporation [2001] AATA 595 in which the Tribunal referred to circumstances where the acceptance of a redundancy may not be voluntary where an injured employee returns to work that then ceases to be available to them. He submitted that the applicant’s inability to work was identified by the ATO as evidenced by the commencement of the inefficiency process.
40. Mr Dubé submitted that the applicant had made up her mind as early as September 1999 to leave her employment by June 2000 to maximise her entitlement to superannuation by ensuring this occurred before 30 June 2000. He submitted that the Tribunal should prefer the documentary evidence from several sources in her discussions with medical practitioners and in the work place.
41. Mr Dubé submitted that Re Newelll could be distinguished on its facts as in that case the employee accepted a redundancy after the employer withdrew the lighter duties that had been available to her. In the applicant’s case she had been offered other duties and there was no medical evidence that she was prevented from accepting alternative work. Her general practitioner had certified her fully fit for work and gave her a medical clearance at the end of her rehabilitation program in March 2000. Mr Dubé submitted that neither paragraph of s4(9) was satisfied and the applicant was not incapacitated within the meaning of the Act.
42. The Tribunal reached its decision taking into account the written and oral evidence and submissions at the hearing. In regard to the medical evidence the Tribunal is satisfied that the applicant suffered a psychiatric disorder best characterised as adjustment disorder as a result of the incident. The Tribunal prefers the evidence of Dr Varghese that adjustment disorder is a condition that lasts usually no more than six months and that the applicant did make a recovery from adjustment disorder. The Tribunal also accepts Dr Varghese’s evidence that after the incident depressive symptoms came to predominate over anxiety symptoms for a number of reasons including the residual effects of the incident.
43. The Tribunal agrees with Dr Alcorn that the applicant was exposed to a traumatic event as referred to in the diagnostic criteria for PTSD in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) (DSM IV) and disagrees with Dr Varghese that the incident could not satisfy the criteria for a traumatic event. Whilst it is true that an asthma attack on its own would not ordinarily be a traumatic event of the kind envisaged in the diagnostic criteria, the combination of circumstances in which the applicant had the asthma attack must be taken into account in considering whether the incident was traumatic.
44. The Tribunal notes that Dr Varghese’s diagnosis of the applicant as suffering adjustment disorder was in accord with the preferred diagnosis of Dr Alcorn, who had the opportunity to examine the applicant within a few months of the incident. Dr Alcorn acknowledged that the applicant demonstrated features suggestive of PTSD, but he preferred the diagnosis of adjustment disorder as more accurately reflecting the applicant’s symptoms. The Tribunal notes that DSM-IV sets out that the diagnosis of adjustment disorder should be considered where there is an initiating stressor (such as the incident). The Tribunal also noted that Dr Wright has diagnosed the applicant from time to time as having adjustment disorder and he was unable to explain satisfactorily in his oral evidence why in some instances he diagnosed PTSD and in others adjustment disorder. Dr Lawton also has moved between the two diagnoses.
45. The Tribunal accepts that the combination of circumstances, including the delay in ambulance staff reaching the applicant and her real fears of death could satisfy the requirement for the occurrence of a traumatic event as envisaged by the diagnostic criteria. The Tribunal agrees with Dr Alcorn that the applicant experienced helplessness and horror during the incident.
46. On other aspects of the diagnosis the Tribunal prefers the evidence of Dr Varghese, as supported by the report of Dr Alcorn, that the applicant did not demonstrate sufficient symptoms to meet others of the diagnostic criteria for PTSD, particularly those in paragraph C in DSM-IV. The Tribunal accepts the evidence of Dr Varghese that avoidance of stimuli associated with the trauma is a principal feature of PTSD and this was insufficiently demonstrated in the symptoms experienced by the applicant. The Tribunal finds that the applicant does not suffer from PTSD.
47. On the question of the applicant’s capacity to work by the end of 1999, the medical practitioners who were in the best position to know her state of health and her work capacity were Dr Wright and Dr Lawton. Dr Wright, in the context of assuming that the applicant would be finishing work altogether, stated that her psychiatric condition was likely to resolve if she were not working in a high rise building. The Tribunal takes into account that Dr Lawton certified her as fit to return to work at the start of 2000. By December 1999 Dr Wright had reported an improvement in her symptoms. He expressed the view in December 1999 that the applicant’s symptoms would be likely to resolve when she was able to work on the ground floor rather than a high rise office as occurred in February 2000. The applicant was not reporting symptoms to either Dr Lawton or Dr Wright between her return to work in February 2000 and her departure from work at the end of May 2000.
48. The Tribunal also takes into account Dr Knight’s report supporting the suitability of a low rise office for the applicant. The Tribunal takes into account that Dr Lawton agreed on 16 February 2000 and again on 11 April 2000 that the applicant had a full medical clearance in regard to her anxiety condition to remain at work, provided this was on ground floor premises. The Tribunal took into account that Dr Likely concluded in his written report that the applicant was incapacitated for all work, but this conclusion is not explained by his report and is not consistent with the views of her treating doctors who were in a better position to assess the applicant.
49. The Tribunal notes the report by Ms Williams that the applicant was hoping to exit her employment within a timeframe of six weeks. The applicant told Ms Williams that she wanted to leave her work at the ATO by way of voluntary inefficiency so that she could spend more time with her ill partner. This was confirmed in Dr Lawton’s oral evidence. Ms Williams also noted in March 2000 that the applicant reported no difficulties in relation to her anxiety condition after the return to work in a low rise building. The applicant did not consult Dr Wright between February and May 2000 in regard to her psychiatric condition. The Tribunal also accepts Ms Jameson’s evidence that it was well known in the workplace that the applicant wished to leave work, and this was consistent with the applicant’s comments to Dr Lawton and Dr Wright about her intentions.
50. The Tribunal does not accept the applicant’s evidence that she had not made a decision by the end of 1999 to leave work and does not accept that comments made by her about her intentions of leaving work were not accurately recorded in Dr Wright’s and Dr Lawton’s clinical notes. In the context of having been cleared medically to return to work as fully fit to do so, and Dr Lawton’s report in April 2000 that the applicant’s back strain and anxiety conditions have resolved and she has achieved a durable return to work .. the Tribunal is satisfied that the applicant was not incapacitated for work within the meaning of s4(9) of the Act from the start of 2000.
51. The Tribunal is satisfied that the applicant was offered other employment and there is no evidence that she would not have been able to undertake alternative employment in the ATO or elsewhere. She had her own reasons for preferring not to explore these opportunities and the Tribunal is satisfied that those reasons did not relate to her injury sustained in the incident in 1999.
DECISION
52. The Tribunal affirms the decision under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Camille Banks
Associate
Date/s of Hearing 13 and 14 October 2004
Date of Decision 9 February 2005
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
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