Oliver and Comcare (Compensation)

[2019] AATA 4194

Oliver and Comcare (Compensation) [2019] AATA 4194 (14 October 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2017/6689
GENERAL DIVISION  )

Re: Sharon Oliver
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:      Dr I Alexander, Senior Member

DATE OF CORRIGENDUM:            24 October 2019

PLACE:            Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that:

1. the numeric reference following “section 21” in paragraph 4 to footnote 2 is removed;

2. footnote 2 at the bottom of page 3 being “² At the hearing it was agreed that the decision should have read as section 19 of the SRC Act.” is removed.

..................[sgd]................................................

Dr I Alexander, Senior Member

Division:GENERAL DIVISION

File Number(s):      2017/6689

Re:Sharon Oliver

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member
Emeritus Professor P Fairall, Senior Member

Date:14 October 2019

Place:Sydney

The decision under review is affirmed.

...................[sgd].....................................................

Dr I Alexander, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Respondent previously accepted liability for psychological injury – aggravation of major depressive disorder, single episode – whether the Respondent is presently liable to pay medical expenses and incapacity payments in respect of previously accepted liability – whether the Applicant continued to suffer from compensable condition of an aggravation of major depressive disorder, single episode – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 19, 21

CASES

Prain v Comcare [2017] FCAFC 143

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5, (American Psychiatric Association, 5^th Edition, 2013)

REASONS FOR DECISION

Dr I Alexander, Senior Member
Emeritus Professor P Fairall, Senior Member

14 October 2019

INTRODUCTION

1. On 21 February 2010, Ms Oliver who had been working as  an employee of the Australian Tax Office (ATO) since 2000, lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

2. Ms Oliver claimed that she suffered a mental health condition, Major Depression/ Generalised Anxiety, caused by her employment because of an incident at work on 3 February 2009 when she was “inappropriately counselled and belittled by her team leader” in front of her peers “for making an error at work”[1].

   [1] Section 37, T-documents p 13.

3. In a letter dated 30 September 2010, Ms Oliver was informed that, pursuant to section 14 of the SRC Act, Comcare had accepted that she had suffered a psychological injury within the meaning of disease as defined in subsection 5B(1) of the SRC Act and described as “aggravation of major depressive disorder, single episode”.

4. In a letter dated 6 June 2017, following independent psychiatric review in November 2016, Ms Oliver was informed that it had been determined that Comcare had “no present liability” for medical expenses under section 16 and for incapacity payments under section 21[2] of the SRC Act.

   [2] At the hearing it was agreed that the decision should have read as section 19 of the SRC Act.

5. In a reviewable decision, dated 6 November 2017, a Review Officer affirmed the determination of 6 June 2017.    

6. In these proceedings Ms Oliver, who attended the hearing in person and was represented by counsel, now seeks review of the determination dated 6 November 2017.

   RELEVANT STATUTORY PROVISIONS

7. Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8. “Injury” is defined in subsection 5A(1) of the SRC Act to mean:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   Subsection 5A(2) provides:

   For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

   (a)a reasonable appraisal of the employee’s performance;

   (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

   (c)a reasonable suspension action in respect of the employee’s employment;

   (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

   (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

   (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

9. “Disease” is defined in section 5B of SRC Act:

   (1) In this Act:

   “disease” means:

   (a)an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)the duration of the employment;

   (b)the nature of, and particular tasks involved in, the employment;

   (c)any predisposition of the employee to the ailment or aggravation;

   (d)any activities of the employee not related to the employment;

   (e)any other matters affecting the employee’s health.

   This subsection does not limit the matters that may be taken into account.

   (3)In this Act:

   significant degree means a degree that is substantially more than material.

10. “Ailment” is defined in s 4(1) of the SRC Act:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    ISSUES

11. Ms Oliver contends that on 3 February 2009, because of an incident at work, she suffered a “frank” psychological injury and that, as at 6 June 2017, she continues to suffer the effects of that injury.

12. The Respondent contends that Ms Oliver suffers from a pre-existing mental health condition which is an ailment within the meaning of section 4(1) the SRC Act and accepts that, on 3 February 2009, the incident at work contributed, to a significant degree to an aggravation of Ms Oliver’s ailment and, therefore, was a compensable disease within the meaning of section 5B(1) of the SRC Act.

13. However, the Respondent contends that, as at 6 June 2017, the incident at work, had ceased to contribute, to a significant degree, to her current mental health condition.[3]

    [3] Prain v Comcare [2017] FCAFC 143 at [87]: the correct “statutory test in s 5B (1) of the SRC Act.

14. There is no dispute that, as at 6 June 2017, Ms Oliver continued to suffer from a chronic mental health condition which has been assigned a diagnostic label which for present purposes is best described as Major Depressive Disorder, Generalised Anxiety Disorder with obsessional traits.

15. Therefore, the issues before the Tribunal are:  

    (a)Whether Ms Oliver’s “injury” was an injury (other than a disease) or a disease within the meaning of the SRC Act; and

    (b)Whether, as at 6 June 2017, Ms Oliver continued to suffer the effects of her compensable injury. 

    Ms Oliver’s evidence

16. In a written statement dated 3 July 2019 Ms Oliver stated inter alia the following:

    I suffered post-natal depression with both my children although it was not diagnosed until after J was born …. I was admitted to the Pialla unit at Nepean Hospital. This was about 1996 to 1997. ……After discharge, I was under the care of a psychiatrist. My condition improved when I went back to work.

    In 1999, I started doing contract work for the Australian Tax Office at Penrith……In 2000 I was engaged for a further six months. At the end of that period I was kept on.

    In 2002 I separated from my husband ….. I left with the children, I found I could not obtain rental accommodation. …..We elected to transfer the house …..I managed to pay off the mortgage. In 2003 I formed a relationship with S …I lived with him until March 2016.

    In 2003 I was offered permanent work with the ATO ……There was an acting APS 4 [employee]. I was an APS 2 at the time   …..one day in February 2009 she approached me, She said “there was a cheque transferred into the wrong account” She yelled and screamed at me. I looked at the documents, but could not see where I went wrong. A man who was an APS 3 joined in the criticism ……He said “The ATO is going to be sued because of your mistake.”

    I felt in shock. I was shaking. I felt anxious. I stayed to the end of the shift, about 15 to 20 minutes later and then went home. I have not been able to go back to work. 

    I had been fine until 2009. Since then I have had numerous psychiatric admissions to St John of God Hospital and Nepean Hospital ……..my employment with the ATO was terminated. 

17. In her oral evidence at the hearing we note that Ms Oliver was often confused and had significant difficulty with her memory, particularly with dates.

18. When asked about particular entries in Dr Nimmaggada’s practice notes, Ms Oliver’s answers tended to be evasive and she frequently said she could not remember but repeatedly suggested that he was always overly concerned about her mental health issues.

19. When asked about her symptoms and treatment in the weeks prior to 3 February 2009 Ms Oliver stated that “for nine and a half years I worked there, and I did not have a day off for depression……. I was not taking any medication for depression……I didn’t have any problems. If I had problems I wouldn’t have been at work”.

    MEDICAL EVIDENCE

    Nepean Hospital – Pialla Mental Health Unit Clinical Notes 

20. 12 December 1996:

    Complaining of depression and inability to cope with children…. depression occurred during 1^st pregnancy…. .Depressive features since birth of last child[4]….palpitations worsening insomnia and panic states…. premorbidly describes herself as worrier, perfectionist …   blames her style on father feels isolated from husband ….. considers most distressing components of presentation: insomnia, inability to cope with children, self-esteem issues… ..diagnosis: postnatal depression …

    [4] 7 August 1996.

21. 12 January 1998 – 27 January 1998:

    Depression for 17 months since birth of youngest child….main stressor being children…,,, difficulty with sleep …cut wrists-superficial week prior to admission, continuing suicidal ideation … feeling guilty for being in hospital ..  need for long term medication.

    Impression: Major Depression with anxiety, obsessional personal traits.

22. 20 February 1998: overdose -largactil, serzone, Valium.

23. 27 February 1998 – 6 April 1998: agitated depression – ECT x 14.

24. 1 July 1998 – 6 July 1998: overdose of Lithium- agitated depression, borderline and dependant personality traits.

25. 23 July 1998 – 29 July 1998: transferred from Westmead Hospital ICU after overdose of antidepressants – major depressive disorder chronic, dependent /obsessional traits.

26. 14 December 1998 – 31 December 1998: Involuntary admission - brought in by Penrith MHT– depressed/agitated, borderline/histrionic traits, likely family difficulties.

27. 20 February 1999 – 22 February 1999:

    …found by husband, collapsed unresponsive GCS 3, intubated admitted to ICU, extubated 21.2…..psychiatry registrar – cause of episode unclear- impression: depressive illness, Anxiety disorder ċ panic attacks, cluster B Personality traits. 

28. 16 August 1999 – 7 September 1999[5]:

    Overdose – tegretol, alprazolam, serzone- not able to cope for past few weeks. Finding it difficult getting through normal activities of the day …. more difficult with children at home 

    20.8.1999 seen by Dr Pusic - depressed flat agitated. commence serzone 100mg mane and 300 mg nocte, Melleril 25 mg tds

    7.9.1999 transferred to St John of God for further management

    Diagnosis: Major Depression with anxiety features, Dependent traits, family stresses

    [5] Attending Psychiatrist – Dr Pusic.

29. 29 December 1999 – 31 December 1999[6]:

    Suicidal ideation- attempted to stab herself with a knife – worsening of depressed mood over the last 4 weeks, increasing agitation. Initial insomnia with hypersomnolence during the day …. feelings of guilt about impact of illness on her family, recent conflict with husband ….continued on cipramil 40 mg mane and zyprexa 10 mg nocte 

    Impression: Relapse Depressive illness. Significant suicide attempt today ċ serious lethality & intent   – Major Depression ċ melancholic features, Generalised anxiety disorder, relationship problems

    [6] Ibid.

    14 February 2009 – 16 June 2009

30. 14 February 2009 – Referred by GP – Depression/ anxiety Sleep disturbances[7]:

    Client reports deterioration in her mental state past 6/12[8] due to sleep deprivation leading to feeling depressed ċ ↑ anxiety - heart racing - ↓ concentration ↓focus feeling overwhelmed, unable to make decisions  Has been pushing herself to attend work past 2/12  Recent transferred payment into wrong account & her boss “abused” her in front of colleagues Felt “humiliated”  anxious  & tearful ? pending legal issues  Has tried to ignore feelings hoping they would go away as doesn’t want to be “depressed again” Feeling exhausted due to lack of sleep. Unable to attend work past week father tells her she could lose her job →inability to pay mortgage etc.  Has been prescribed Avanza GP 2/12 ago dose ↑ to 45 mgs 2/7 ago ĉ no improvement in sleep → continued anxiety Has often taken 5 or 6 different tablets ċ ETOH over past few months to assist ċ sleep Denies intent to self-harm or suicidal intent. …..Clinical Impression – Relapse of Depression ċ sx of anxiety

    [7] Ibid.

    [8] 6 months.

31. 17 February 2009 (seen by Dr Pusic) – history reviewed:

    last 3-4 months poor sleep 3 hrs per day unable to concentrate /focus making errors at work  she was pointed out re mistakes  she felt humiliated  unable to get back to previous level of function ….saw GP 3 months ago started on mirtazapine ↑ dose 2 weeks ago …2 weeks ago took cocktails of medications …just wanted to sleep …..Imp Agitated depression

32. 20 February 2009 (seen by Dr Pusic):

    feels extremely anxious worries about ex-husband and parents finding out that she is in hospital, worries about losing custody of children

33. 24 February 2009:

    feeling slightly better  went home for weekend

34. 27 February 2009 (seen by Dr Pusic):

    feels better…improvement in mental state

35. 6 March 2009 (seen by Dr Pusic):

    still anxious, poor concentration, feels negative thought about herself …discussed ECT

36. 10 March 2009 (seen by Dr Pusic):

    leave has been good still anxious

37. 13 March 2009 (seen by Dr Pusic):

    feels sad, disorganised own thought telling her she is worthless, getting frustrated angry at herself…. 2^nd opinion re ECT    

38. 16 March 2009 (second opinion):

    ECT is a reasonable and proper treatment to be administered to Sharon Anne Oliver and desirable for her welfare

39. 17 March 2009 (seen by Dr Pusic):

    still anxious scared about ECT but feels she needs ECT to improve thinking

40. 18 March 2009 – 30 March 2009: ECT x 6.

41. 20 March 2009: Dr Pusic – reports some improvement

42. 24 March 2009 (seen by Dr Pusic): still feels flat still C/O ↓ sleep imp: remains depressed

43. 31 March 2009  – Clinical Review:

    Sharon stated that that she hasn’t noticed any differences in her mood and wants to be discharged home …. family and domestic risk factors considered… since admission-sleeping better not crying all the time  ….ECT cancelled -  no response

44. 9 April 2009 (seen by Dr Shahal)[9]: – anxious – agitated.

    [9] New attending psychiatrist – Dr Shahal.

45. 22 April 2009 (seen by Dr Shahal):

    crying, anxious, feels depressed - “I have been here a long time but I am not getting better….i feel like I am wasting time ”

46. 27 April 2009 (seen by Dr Shahal):

    states she is much better. “Just happened …leave went well I am not even as tired as before”

47. 30 April 2009 (seen by Dr Shahal): mood improving, less agitation, feels more positive.

48. 1 May 2009: wants to have trial leave over weekend – feels positive about this.

49. 12 May 2009 (seen by Dr Shahal):

    Sharon is distressed because she feels she can’t cope, to even in the smallest tasks. She is constantly preoccupied with multitude of daily tasks she’s not able carry out. Her sleep is disturbed because of that preoccupation

50. 2 June 2009 (seen by Dr Shahal): For extended leave two weeks.

51. 15 June 2009 (seen by Dr Shahal):

    still anxious having new stressors – children come to live with her, father diagnosed with bowel cancer abnormal skin lesions still difficulty sleeping - discharge today

    3 July 2009[10] – 27 July 2009

    [10] Ibid.

52. 3 July 2009:

    extremely distressed tearful and distracted since leaving hospital…..sleep has been poor she has tried everything possible to enable her to sleep ……recent loss of job Feb due to altercation with superior. Still very upset over that …not gotten over it …History of disagreement with father and mother. Feels father is controlling. c/o ex-husband .. 14y controlling like her father

53. 9 July 2009 – Dr Shahal:

    discussed with Sharon central factors leading to new anxiety- Sharon identifies the problem as high expectations of herself, inability to rise to their level and frustration on more specifically – her inability at present to care for her children ….

54. 13 July 2009: still anxious…..guilty ruminations of not being able to look after children and not being able to work

55. 14 July 2009 - Dr Starcevic – consultant psychiatrist (second opinion):

    She continues to present with low mood, decreased interests, significant sleep problems, generally pessimistic outlook….Sharon continues to be troubled by various issues pertaining to her parenting skills, ability to manage relationships and cope with stresses in general …..

    Impression: Depressive disorder (recurrent) of moderate intensity currently No elements suggesting a severe personality disturbance

56. 23 July 2009: less agitated less anxious – discharge today 

57. 2 September 2009 – 10 October 10 2009: ECT x 10 – didn’t report any improvement

58. 12 February 2010 – 31 March 2010:

    anxiety and depression – identified looking after children as the main stressor -estranged from family especially parents

59. 28 June 2010 – 30 June 2010: multi medication overdose.

60. 11 May 2016 – 23 May 2016:

    Anxiety and depression - recent stressors: breakup of relationship 11 yrs several weeks ago. Loss of $450K superannuation via his gambling, he is seeking half of the house, increased alcohol intake. Recent suicidal ideation…. increased Fluoxetine[11] SSRI, Quetiapine[12] XR ……Improvement in mental state noted subjectively and objectively feels ready for D/C.

    [11] Fluoxetine- Prozac- antidepressant of the selective serotonin reuptake inhibitor.

    [12] Quetiapine- antipsychotic medication used with antidepressant to treat major depression.

61. 26 May 2017 – 5 June 2017:

    decline in mental state- made involuntary patient – financial stress as compensation to stop next week – symptoms: worthless, anger, poor sleep, feels useless…….5. 6.17 feels mood has improved- discharged

    St John of God Hospital Richmond

62. 10 December 2010 – 13 December 2010: Agitated depression, anxiety, Obsessional traits, suicidal ideation- commenced on nortriptyline,[13] bilateral ECT x12, group CBT Group DBT.

    [13] Tricyclic antidepressant.

1. 13 March 2013 – 3 April 2013: treatment of anxiety and depressive symptoms – Group CBT, Pharmacotherapy, group psychoeducation – withdrawn from Allegron[14] and Valdoxan[15]- reported ongoing sleep disturbance – otherwise settled.

   [14] Allegron- nortriptyline.

   [15] Valdoxan- agomelatine- positive benefits on mood and sleep depression.

2. 30 October 2014 – 20 November 2014: deterioration of mental state, poor sleep, difficulty with concentration- Valdoxan ceased.

   Dr Nimmagadda – General Practitioner

3. In a letter dated 28 May 2010 Dr Nimmagadda stated that Ms Oliver had been a patient in his practice for 12 years.

4. Relevant extracts from the practice clinical notes are as follows:

   ·    31 October 2001: Depression recurred- Zyprexa + cipramil

   ·    26 February 2002: Sleepless, loss of appetite agitated holding back tears 4 weeks. went to mental health team x once. Hyperventilating going down the hill- discussed needs to see psych, agreed to take Valium today and return tomorrow

   ·    27 February 2002:

   long DICCUSSION, hUSB AND HERSELF ARE AGAINST MEDICATION [sic] at last agreed to consider after seeing Chaturvedi ..Letter written to Dr Shail Chaturvedi[16].

   [16] Psychiatrist.

   ·    6 February 2004:

   Distressed following separation from W who was controlling everything, marriage not good for long time and he left Sunday. Anxiety, teary, insomnia. Unsure what to do, not talking with anyone …..refused tablets script given diazepam 5 mg x 4 tablets. 

   ·    9 February 2007:

   anxiety and insomnia for a year. Now unable to function. ...worries excessively, on most days restless and on edge, tense, tires irritable always, insomnia, lot of effort required …..sad because she wrecked the family. Done injustice to kids, worries of kids. Discussed referral psychologist

   ·    14 March 2007:  

   Insomnia - anxiety related - TOO MANY PROBLEMS No Support parents already facing too many problems   No friends. They are already tired with her past depression.

   She is mainly concerned about insomnia which is severe on some days making it impossible to go to work. She wants Temazepam …. explained to find and remove cause of insomnia. Masking with sleeping tablets can worsen the cause. Discussed referral to psychologist …  .Prescription printed: Temazepam 10mg nocte

   ·    27 February 2008:

   Insomnia- anxiety related - headache all over, insomnia needs to find cause of insomnia.  Alprazolam 1 mg x 2 tabs – take half tab nocte

   ·    19 May 2008:

   Insomnia- anxiety related - insists for temazepam and angry for 10 tablets - Prescription printed 10mg Please dispense 15 tablets today and 10 tablets after a month

   ·    16 June 2008:

   Insomnia- anxiety related – Previous script brought here and destroyed by me. Prescription printed Normison 10 mg[17] one tab nocte no more than 3 nights a week

   [17] Normison – temazepam.

   ·    15 August 2008:

   Major Depression – sad teary, unmotivated, poor concentration, requires big effort, oversensitive to any criticism, sever insomnia. I know about my depression and I am going down -Worse 6 weeks. Before tried to ignore and avoid medication. I am anti medication.

   In my opinion he/she is suffering from medical condition since 14-08-2008 and will be unfit for his her/normal work on 15/08/2008 ….went thru old file and decided to commence on Avanza 15 mg nocte[18]

   [18] Avanza – mirtazapine – antidepressant.

   ·    19 August 2008:

   Major Depression - Avanza 15 mg – took four nights first day slept till 3.am. After that again back to insomnia. Poor concentration and memory affecting work, SPS for work. Take off until well. Increase Avanza to 30 mg as trial.

   Letter printed – In my opinion he/she is suffering from …Medical condition and will be unfit for his/her normal work 19-08-08 to 20-08-08.

   ·    13 November 2008:

   Major depression – Stopped Avanza after finishing the tablets. She thought that it didn’t help but now worsening with insomnia, nil motivation, tiredness, isolation, loss of interests, passive sui thoughts [sic] .... supports- Boyfriend joined in new job and comes sometime to help. Other family – no support …. 

   Prescription printed: Avanza tablet 30 mg nocte ….cannot go to psychologist due to time restraints…….Letter printed: In my opinion he /she is suffering from …Medical condition and will be unfit for his/her normal work from 13-11-08 to 14-11-08.

   ·    9 February 2009:

   Major Depression- sad, crying, out of control, unable to fill petrol and unable to set home alarm, poor concentration -caused problems at work-send cheque to wrong person and they are going to take it to court. Insomnia

   Boyfriend not coming as he is not able to cope anymore. Denies suicidal thoughts

   Plan: take off few days- Go and ask them if they can put her at a low responsible area. Restart Avanza 30 mg a day. Regular talk.  Do not wait until things go out of your hands 

   ·    12 February 2009:

   Major Depression- Not sleeping – 30 mg Avanza at night Denies active suicidal thoughts. Wants children but afraid that if W knows, he might take away children and she may lose house Better if doesn’t wake up from sleep, concentration-very poor ….increase Avanza to 45 mg Psychiatrist-cannot pay …..Rang access team and informed of her symptoms and briefly history. They will take complete care till I return in March.

   Dr Pusic – Psychiatrist

5. In a letter to Comcare dated 11 August 2010, Dr Pusic stated that he would prefer “to further treat and examine Mrs Oliver” prior to providing a report because “she is acutely ill and still under active treatment”.

6. In a letter to Comcare dated 22 September 2010 Dr Pusic stated, inter alia, the following:

   Ms Oliver told me that on 17 February 2008[19] whilst working at the Penrith ATO Office a supervisor bullied Ms Oliver in full view of other staff……she was berated for having made a mistake in her work……..Ms Oliver told me that on the following day, that is the 18 February 2008[20], she visited her local general practitioner Nimmagadda in an agitated state. Dr Nimmagadda prescribed her some medication…..she left work and has remained off work since that time.

   Ms Oliver told me that in late February 2008 she was admitted to the psychiatric unit at Pialla. At that time, she was under the care of the hospital psychiatrist. She had numerous admissions and readmissions over the following twelve months. She received various medical treatment. …also received Electroconvulsive Therapy to treat her depressive illness.

   Ms Oliver was referred to me on 31 March 2010 by her treating hospital psychiatrist and I saw her in my rooms on 6 April 2010…..Ms Oliver was pre-occupied  with what happened to her at the ATO Office.

   Ms Oliver does have a past history of a depressive illness ….she was admitted to the Pialla unit some ten years ago and then transferred to the private hospital …..where she remained for some two months ….. was treated with various antidepressant medication and Electroconvulsive Therapy….. she made a gradual but sustained recovery….. she continued to make good progress…. was successful in seeking employment. Ms Oliver told me that she was quite euthymic and off all antidepressant medication for some eight years till the incident at the ATO in February 2008. [emphasis added]

   I would diagnose Ms Oliver to be suffering from Major Depressive Disorder, now running a chronic course and resistant to treatment. The depressive illness is characterised by high levels of generalised anxiety. As Ms Oliver had been symptom free for many years and as she had not required any psychotropic depressant medication for many years prior to the stressful incident which she experienced in February, 2008 I would say that Ms Oliver’s current illness is not an exacerbation of pre-existing disorder. 

   [19] Date of incident 3 February 2009.

   [20] Dr Nimmagadda’s practice notes: consultation dated 9 February 2009 - Reason for contact-Major Depression. 

7. In a letter to Comcare dated 13 October 2010 Dr Pusic stated that “intensive outpatient pharmacotherapy has not been affective [sic] in ameliorating Ms Oliver’s depressive illness” and now “does require inpatient treatment”. He added that Ms Oliver would be admitted as an inpatient for a three week period with the intention of pharmacotherapy review and possible Electroconvulsive Therapy (ECT).

8. In a letter to Dr Nimmagadda dated 5 April 2011, Dr Pusic stated, inter alia, the following:

   Since September 2010 Sharon has continued to have intensive inpatient and outpatient. Due to lack of response to optimal pharmacotherapy Sharon was admitted to St John of God Hospital Richmond and received a course of 12 bilateral ECT’s. There was an overall amelioration in her depressive and anxiety symptoms though unfortunately the treatment also caused significant short term deficits and difficulty with concentration and attention ………I have continued to see Sharon on a regular basis. I must say that on the last occasion that I saw her Sharon did display some significant improvement which was sustained over the previous two months …..More importantly I have emphasized to her the need to maintain regular activity and not engage in avoidance behaviour …….when I saw her several days ago Sharon was smiling spontaneously and appropriately.

9. In a letter to Dr Nimmagadda dated 30 August 2011 Dr Pusic stated, inter alia, the following:

   Since I last wrote to you in April Sharon has remained essentially unchanged. There has been an overall amelioration in her mood nonetheless significant anxiety and depressive symptoms remain. Although Sharon is able to function in most activities of everyday living I cannot see her being fit for remunerative employment. Her current medication Allegron 150mg nocte, Valdoxan 25mg nocte Seroquel 300mg/day together with Diazepam 5mg on a PRN basis.

10. In a letter to Comcare dated 8 October 2014 Dr Pusic stated, inter alia, as follows:

    I last reviewed Ms Oliver on 25^th September 2014.

    Unfortunately, in recent months there has been deterioration in Ms Oliver’s mental state and overall functioning. Ms Oliver has found it increasingly difficult to cope with the vicissitudes of day to day life. ……having marked difficulty with concentration and attention, being constantly apprehensive and worried with frequent spontaneous crying and low mood …..she has had difficulty with sleep. She has increased her alcohol intake …..she did take an overdose of  prescribed  medication in April of this year

    On the last occasion I saw Ms Oliver she described being overwhelmed by her anxiety and depressive symptoms. She could not see how the situation could be changed at home ……the stage has been reached where Ms Oliver will require inpatient treatment ….Ms Oliver will firstly be detoxified from her alcohol and her benzodiazepine reliance…..consideration will then be given to an alternative forms of pharmacotherapy… 

11. In a letter to Comcare dated 20 February 2017, Dr Pusic stated “I can say that I generally agree with the body of the report as provided by Dr Frank Chow” but “I would disagree with Dr Chow’s opinion that Ms Oliver’s “vulnerabilities, personality and ongoing fixated negative mid set” [sic] are causing her current incapacity to find employment.”[21]

    [21] 23 February 2013 - Dr Chow, psychiatrist: “Her employment incapacity now in my opinion is more perpetuated by her personality vulnerabilities, restrictive lifestyle and an entrenched negative mindset”.

12. Dr Pusic points to Ms Oliver’s unblemished work performance prior to February 2009 and asserts that “It is the unwarranted bullying which she experienced whilst employed at the ATO that caused her to suffer from a Major Depressive Disorder which unfortunately is now running a chronic course”. 

13. An extract from the transcript of the examination in chief of Dr Pusic, who attended the hearing by telephone, is as follows:

    Ms Oliver was referred to me by her local general practitioner, Dr Nimmagadda. I have been seeing Ms Oliver since 2010 and I continue to see her on a regular basis. The basis of the referral was that Ms Oliver had suffered an injury at the workplace. She had already been treated in the public hospital system – she was referred to me in April 2010 to continue treatment and I have done so since.

    And do you agree with Dr Chow’s diagnosis of major depressive disorder? Well yes I do. I think the best diagnosis that would fit Ms Oliver would be major depression. I would make some additive remarks on that. Obviously for chronic major depressive illness, it’s a relapsing illness. It has only had partial remission ever. So, you know, more correctly, of course is a major depressive illness running a chronic course.

    In your view how did the condition arise? ..Well, the onset – having not treated Ms Oliver immediately after the Injury at work, I can only be guided by what Ms Oliver has said and whatever documentation ….I’ve been able to obtain[22]. ……it seems to me that the incident which happened at work, ……let’s call it alleged bullying, precipitated a catastrophic reaction in Ms Oliver and her symptoms and complications thereof are largely to this day. I have no evidence that immediately prior to the incident or in the period of time prior to the incident, that Ms Oliver was displaying any of the acute symptoms and severe and persistent symptoms that she displayed after the incident.

    And her response to treatment? …… has been equivocal at best. I think at times we have been able to achieve a reasonable diminutions of the intensity and the frequency of the symptoms.  There has been acute exacerbations requiring intensive and extensive and in-patient treatment.. …..over the last 12 months …. Maybe a bit longer, 24 months, there has been a gradual but I think sustained overall amelioration of symptomatology …..she would be prone to relapses …..at the moment she is relatively stable, albeit not fully remitted.

    [22] Nepean Hospital records indicate that Dr Pusic was the attending psychiatrist responsible for Mr Oliver‘s care from 14 February 2009 – 9 April 2009 with 12 visits.

14. In cross examination Dr Pusic agreed that Major Depressive Disorder is an episodic condition …… with periods where the symptoms may be in remission but added that the increased frequency of episodes is associated with a poor prognosis. He also agreed that patients often present symptom of depression, fatigue and sleeplessness[23].

    [23] DSM-5 Fifth Edition 2013: Diagnosis of Major Depression episode requires 5 out of 9 symptoms which include fatigue or loss of energy and sleep difficulties (insomnia or hypersomnia).

15. When asked to consider various symptoms and issues that were recorded in Dr Nimmagadda’s practice notes, in the months prior to the 3 February 2009, Dr Pusic was quite dismissive of the diagnosis of Major Depression and the initial treatment.

16. We note at this time that it was in fact Dr Nimmagadda who facilitated Ms Oliver’s admission to Nepean Hospital and that Dr Pusic was the attending psychiatrist when she was admitted.

17. When asked, whether his opinion as expressed in his report of 22 September 2010 that “Ms Oliver’s current illness is not an exacerbation of  pre-existing disorder” was based on Ms Oliver’s self-report of being “symptom free for many years  …and had not required any psychotropic depressant medication” Dr Pusic said “that would be one of the important elements. But many others….” He said that despite having been treated “aggressively with ECT” and suffered further domestic stressors which she managed very well Ms Oliver “went back to work …was promoted at work … so in my mind the major illness that occurred post-partum had fully resolved”.

18. When asked to consider the history provided by Ms Oliver at the time of admission on 14 February 2009, where she reported a deterioration in her mental health in the previous six months, Dr Pusic said “I would be mindful that this lady, at the time that she reported all those symptoms as an inpatient in hospital had already had a catastrophic reaction.” He went on to explain that “in my talking to her and the documentation that I had received and the account that was given to by her former partner and so on …..I do not have any evidence that prior to that incident there was sufficient symptomatology to make a diagnosis of a major depressive disorder”.

19. We note at this point the entry in the Nepean Hospital records on 17 February 2009 as noted above in paragraph 30: Seen by Dr Pusic history reviewed- last 3-4 months poor sleep ----unable to concentrate/focus making errors at work- ….

20. When asked by the Tribunal about the relationship between Ms Oliver’s episodes of depression in 1996 and 1998/1999, Dr Pusic stated, the following:

    …..the very fact that the lady had, whether it was postnatal depression or not …..she had a major depressive episode at some stage of her life, which was treatment resistant and required very intensive treatment. It’s quite significant because it does tell you that certainly she does have a vulnerability, probably a genetic vulnerability…..so taking that into account that she had a treatment resistant depressive episode earlier does of course lead her unfortunately  to re-experience depressive episodes sometime in her life ……..the reality is that a woman who has postnatal depression, particularly treatment resistant depression postnatally, will have higher incidents than normal of having subsequent episodes

21. We note that Dr Pusic’s answer to the question asked by the Tribunal appears to be inconsistent with his earlier assertion that “the major illness that occurred post-partum had fully resolved”. 

22. When asked by the Tribunal about the significance of Ms Oliver’s persistent insomnia over the 12 month period, prior to February 2009, Dr Pusic’s response was somewhat discursive and did not, in our view, provide a convincing answer to the question.

    Dr Bertucen – Consultant Psychiatrist

23. In his report to the ATO dated 22 November 2010, Dr Bertucen provided a reasonably comprehensive record of Ms Oliver’s past and current mental health condition including a description of the incident at work in February 2009 and reported psychological sequela.

24. In his summary and assessment Dr Bertucem focussed primarily on issues with respect to Ms Oliver’s fitness to return to work but did not provide a diagnosis or directly address issues of causation.

25. Dr Bertucen noted that Ms Oliver had reported “severe and sudden onset insomnia” and that she had stated that prior to the incident “she had slept reasonably well”, comments which we note are not consistent with Dr Nimmagadda’s practice records.

    Dr Walker – Forensic Psychiatrist

26. In a report dated 8 June 2011 Dr Walker indicated that he was asked to provide a section 36 Rehabilitation Assessment, that is, an Occupational Health Assessment.

27. Dr Walker noted psychiatric diagnoses as Major depressive disorder, Anxiety disorder and Personality disorder. He stated Ms Oliver “developed chronic depression and anxiety after an objectively minor incident at work in early February 2009” but expressed no opinion with respect to causation.

28. Dr Walker concluded that ‘Ms Oliver is permanently unfit for rehabilitation. She has treatment resistant psychological symptoms” and is “permanently unfit for work”.

    Dr Barrett – Consultant Psychiatrist

29. In a report dated 30 August 2011 Dr Barrett stated, inter alia, as follows:

    Ms Oliver continues to suffer from an episode of Major Depressive Disorder with agitated and melancholic features. As she has difficulties recalling the progression of her illness following the incident on 3 February 2009, it is difficult to state with any certainty how it relates. However, it does seem that there is a clear temporal relationship between the incident and the onset of her illness ……. the event probably did trigger her current psychiatric condition

    Ms Oliver’s history of two previous episodes of depression ……..the latter requiring hospitalisation and ECT supports that she has a vulnerability to developing severe episodes of major depression. However, I am not able to say whether or not she would have experienced the current episode had the incident of 3 February not occurred.

1. We note that Dr Barret did not have access to Dr Nimmagadda’s practice notes[24].

   [24] Section 37, T-documents p 122.

   Dr Potter – Psychiatrist

2. In a report dated 6 December 2013 Dr Potter recorded rambling and confused history but went on to state as follows:

   The history given by Ms Oliver was incomplete. While this is likely to be an expression of her ongoing clinically significant anxiety and depression, given her history, with alcohol intake and ECT, ….there is a possibility of cognitive impairment …..On a background of the history consistent with a traumatic home development, she has had a struggle with life and relationships and a documented past history of depression. Reflecting this history, with an emotional vulnerability and an experience of having been bullied at work, she left work precipitously at the beginning of 2009 and has not returned. Given her current history and presentation, she would fulfil the diagnosis of Chronic Major Depression with melancholic features and with clinically significant agitation…..She has remained chronically depressed and anxious, and debilitated, despite significant psychiatric treatment. Reflecting the above, her history is complex, and it is puzzling. It is most likely that on a background of vulnerable emotional functioning from an early traumatic development, she has become depressed when stressed in life with the last depression remaining chronic from her described experience at work …..

   Dr Chow – Consultant Psychiatrist

3. In a report dated 21 November 2016 Dr Chow summarised, inter alia as follows:

   Ms Oliver is a 47 year old female living at home by herself………..From a developmental point of view she has had a hard critical upbringing and is likely to have a personality style with dependent and obsessional tendency, which is reflected in her recurrent relationship difficulties with her previous husband and partner.

   She has significant history of pre-existing psychiatric history with postnatal depression when her two children were born. She subsequently developed significant psychological symptoms after two incidents at work and has been off work since 2009. She had multiple suicidal attempts with psychiatric admissions and she was treated with multiple trials of medication and ECT.

   Her condition remains treatment resistant and continues in a chronic fashion. It appears that there has been some stability over the last few years and she has been able to reduce alcohol intake. However, she continues to experience symptoms in a chronic fashion that is debilitating and affecting her ongoing capacity for employment.

   She reported experiencing sufficient symptomatology for the diagnosis of major depressive disorder ……The prognosis is that her current condition is likely to remain chronic and ongoing, and she remains without capacity for work.

4. In a subsequent report dated 23 February 2017, in response to specific questions posed by the Respondent, Dr Chow stated inter alia as follows:

   No, in my opinion I consider the aggravation on major depressive disorder, single episode on 3 February 2009 is no longer the most significant contributor to her ongoing employment incapacity. It is noted that she has become more psychologically stable with the recurrent hospitalisations and treatments. There however has been a number of psychological difficulties over the years related to her relationship difficulties.

   Her employment incapacity now in my opinion is more perpetuated by her personality vulnerabilities, restrictive lifestyle and an entrenched negative mindset. With the reported ongoing symptoms and lack of motivation she is likely to remain in a chronic state.

   On the balance of probabilities, Ms Oliver’s ongoing condition in my opinion is more related to her pre-existing condition of Depression. It is my opinion that her personality style especially with a high perfectionist expectation had a much more significant role to play in the development of her psychiatric condition and these personality factors continue to perpetuate her ongoing psychological symptoms.

5. In response to a specific question posed by the Respondent Dr Chow stated that “Although the employment incidents triggered her psychological condition, it is my opinion that her ongoing psychological symptoms continue to be perpetuated by her personality and ongoing fixated negative mindset”.

6. At the request of Comcare Dr Chow re-examined Ms Oliver on 16 October 2018. In the referral letter Comcare provided additional documentary evidence in the form of extracts from documents produced under summons by Dr Nimmagadda, Westmead Hospital, Ms Christine Webster, St John of God Hospital, Richmond and Pialla Mental Health Unit (Nepean Hospital). 

7. In a report dated 17 January 2019 Dr Chow after reviewing Ms Oliver’s past and current circumstances and the various documents that had been provided, stated, inter alia, as follows:

   In my opinion she continues to report experiencing sufficient symptomatology to warrant a diagnosis of major depressive disorder. In assessment today Ms Oliver stated that the family issues were related to her custody battle with her ex-partner during that time. The documentation provided stated that there were issues with nose skin cancer and family issues raised in 2009.

   As per the medical documentation provided by Dr Nimmagadda she was started on antidepressants in August 2008. The underlying condition was affecting her concentration and eventually led to the mistakes at work. She was likely to have become more sensitive at work especially with the interactions with her team leader, being confronted about her mistake at work.

   There was evidence showing that Ms Oliver had developed relapse of depressive illness in August 2008…. In my opinion her condition was not significantly contributed by her employment with the ATO. Her underlying condition had relapsed prior to the incident in February 2009.

   Although it is my opinion her condition is not related to her employment but more so with her underlying condition, I note that her claim had been accepted since 2010 and one might argue that Ms Oliver had suffered an aggravation of her underlying condition due to the perceived incident in February 2009

   In my opinion her ongoing psychiatric condition is not significantly related to previous employment with ATO. It has been 10 years since her encounter with her team leader when she was confronted by her work error. Her condition is now perpetuated by her ongoing avoidance, her underlying condition, decompensated personality, avoidance and assumption of a chronic invalidity role.

   She has a significant pre-existing condition …. With her avoidance, perfectionistic and obsessive personality traits she developed severe depressive episodes during her postnatal periods and needed ECT.

   Extracts of Dr Chow’s Examination - In- Chief

8. An extract from the transcript of the examination in chief of Dr Chow is as follows:

   Do you know if this lady has had a history of some significant interaction with her psychological state in the late 1990s and that resulted in a number of months in hospital and some ECT therapy? ‑‑‑That’s correct, Yes.

   How does that shape someone for the future should they…..come across other troubling events in their life? ---Yes So, obviously, past history is a significant indicator of future relapses, both from a psychological perspective and biological perspective and depends on the degree of severity and the treatment required. Often people will require ECT in early life do tend to develop further relapse down the track and require further ECT treatment. And that’s just shown from a psychiatric perspective that there’s genetic vulnerability but also psychological vulnerability. So, both biological and psychological vulnerabilities of future possibility of relapse.

   Now, when they suffer another episode, it might be aroused by a matter of concern in their life; agreed? ‑‑‑Yes.

   It might also spontaneously present itself again in their life? ‑‑‑That’s a very good point. It could be a biological contribution. It might mean that the body is getting older and, therefore, depleting the serotonin level in the brain or it could be, you know, therefore that’s why people sometimes do develop relapse without significant life events. But, on the other hand, psychosocial events, you know, other triggering events can also - and it’s quite commonly the cause of a relapse due to the depleted or increased biological vulnerability of the individual.

   If one experiences a relapse, not all of them would require ECT therapy? ‑‑‑Some can just get better with the right medication.  It depends on the side effect response and whether the clinician have the right medication. Obviously, you know, if someone have ECT previously we often have the thought in our mind that this person may need ECT again due to the, you know, lack of efficacy early on in life and - - -

   But if they’ve had it previously that might inform of their biological disposition? ‑‑‑That’s correct, yes.

   Now, I understand from your report that you’ve had an opportunity to review the GP’s notes and the history provided to the hospital on admission in February 2009 and as I understand your report, and correct me if I’m wrong, that it appears to me what you have concluded is that she was already suffering from a major depressive disorder prior to the events with respect to the cheque at work in February? ‑‑‑Yes….That’s correct.

   What, if anything, is the relevance of the observation of the practitioner and the complaints of the patient about insomnia in the years leading up to these events? ‑‑‑ … if someone’s not able to sleep properly for maybe a week, you know, that would already have some impact on the concentration level, or performance, of the individual. So, imagine if that’s become an ongoing issue for a prolonged period of time, it would definitely affect the individual ability to function and concentration performing and, obviously, eventually then it leads to the indication of some mediation required to help improve the symptoms of the individual improve the psychological state and the level functioning as well.  So, the sleep can often be an early sign of things and leads to the more severe presentation of symptoms afterwards.

   I just want to ask you about the significance of other things in one’s life after February 2009 and its effect on the perpetuation of the presentation of symptoms? ‑‑‑ So, usually in terms of psychosocial issues we need to consider after - being on a claim setting, whether the - what’s the likelihood of the psychosocial issues is caused by the underlying issues that has been going on for a long time, before the claim setting, or such as the underlying psychiatric condition of a personality structure or, you know, a relationship pattern issues or it could be the situation that causes the claim to occur and the aftermath of the psychological issues impacting on the relationship causing the breakdown on the relationship as well.  So, we need to consider those two possibilities and which one is more likely and weighing up on that.

   Obviously, in this setting, there’s a lot of background, you know, issues here in terms of underlying condition and personality issues and relapses of symptoms.  The - so that’s one consideration.  Then with prolonged relationship difficulties, obviously, that will have an impact on the perpetuation and ongoing prolongation of the underlying psychiatric condition affecting the progress and the recovery of an individual as well. Often the psychosocial issues is one significant factor but also there’s also a number of factors as well, including the ongoing mindset, ongoing personality structure, ongoing ability to, you know, seek biological and psychological treatment and response of the treatment as well. 

   Extracts of Dr Chows Cross - Examination

9. An extract from the transcript of the Dr Chow’s cross examination is as follows:

   Did you see your task as comparing and assessing her functioning, Ms Oliver’s functioning, before the incident she complains about with her functioning after the incident? - ………

   So, this assessment is quite complex because I have to look at a number of issues early on, before and after the incident, and also the impact of the whole situation over the last couple of years……. I would obviously have asked how she was coping before at the time, whether she was experiencing symptoms. Now, bear in mind, even someone who’s suffering from a psychological perspective, or having a relapse of psychological condition - or psychiatric condition, they might not necessarily have a significant impact at work prior, or maybe they were already having some difficulty at work. Now, I have to refer back to my notes again whether I have or not but it is clear to me that she was having a relapse that that point and I would only be able to assume that it was possibly having some impact, that’s why the mistakes have occurred at work.

   Okay. And, in fact, they say that Ms Oliver was valued and productive team member? ‑‑‑ I will have no doubt that Ms Oliver had been a very valued and hardworking worker in the organisation for many years..........And I have no doubt that with her dedication to work and her personality traits that would not be an uncommon accolade that people gave to people like Ms Oliver.

   It’s a different picture then you’ve painted of somebody who’s overcome by major depression? -‑That’s the interpretation, obviously from your perspective.  It’s very common that we see people struggling, they’re still able to…., put up an ability to interact with others, even though they’re suffering inside. A lot of frontline officers, for example police, veteran, they don’t necessarily tell people they’re suffering at work until they have a breakdown and go off work altogether, despite that they’re suffering for quite some time. So, it’s not uncommon that the workplace don’t spot it early on because … one of the reasons why people become unwell is because they are not able to …let people show their vulnerability and seek help earlier…..,

   TRIBUNAL: Perhaps to assist the Tribunal, you could consider how important is that kind of evidence in relationship to assessing a person in the context of their mental health? ‑‑‑Yes, and I guess that’s the function at work.  Like I - like I mentioned to you, a lot of them actually do quite well in the workplace because of workaholism is a great coping mechanism of a psychological suffering before they break down and so it’s common that I see the picture, as people focus at work, focus at work and they try and maintain things until they come in a tipping point and then they fall over the cliff. So, in answering the tribunal question, the level of functioning - the level of performance and level of functioning might - definitely would have some help there but also would have to consider the other big picture as well and, like I say, Ms Oliver, you know, sounds - definitely has been a very dedicated worker and all that but the focus is for me, in this assessment, is, you know, what was happening from a psychiatric perspective as well as the biological and medical perspective early on and why she developed the condition afterwards, especially after the claim indicating incident at work.

   And to your mind, what was going on in the workplace had very little to do with the development of major depressive disorder? -  In this setting in Ms Oliver’s case ….there had been minimal issues and incidents in the workplace prior to the incident in February and there’s indication that there has been relapsing symptoms and Ms Oliver has been on medication, a couple of years of insomnia issues and other physical problems ….custody issues ….rumination focussing on whether she had made mistakes…….  So, in considering all of those factors and evidence I’ve been provided, it was more weighting towards Ms Oliver already developing a psychiatric relapse and that she wasn’t - she, unfortunately, was having concentration issues, having an impact on the performance. There was a mistake there and then the interactions, obviously……., upset her and then she went off work…… in considering all those aspects, I consider the weight of the underlying condition, and the personality traits that she had and the underlying condition, has a bigger role to play in the contribution of her unwell at that point.

   My question was do you accept there was a dramatic change, a dramatic deterioration, in her condition following the incident in February 2009? ‑‑In my opinion, she was already on a downturn trajectory ….if you about the trajectory of people trying to maintain - they’re coping at work and suddenly, you know, when they usually have an incident that leads to …., as a trigger for them to go off work and have a break, and then have a breakdown, and that’s a very common trajectory of someone having an underlying condition and trying to cope at work. Yes, after she went off work she - her condition has deteriorated further……..like I told you the trajectory is, you know, someone who is already unwell and then on the trajectory of going down - downturn, they need to be, you know, some reason the person need before they - they go off altogether. So, you know, it could be an incident that, you know, allowed a person to say, I can’t cope with this anymore and I need to seek support and seek help and have time off work.

   It could be a bullying incident, in fact, couldn’t it? ‑‑‑ it could be a significant incident from the perceived - from the individual perceived point of view or it could be - you know, it could be a minor incident - -

   TRIBUNAL: In what you’ve just said, I understand what you’ve said is that a person who is in a potentially vulnerable state, it’s not uncommon for something to happen, whether it’s a serious incident or a minor incident, Yes.

   And that can present itself as the factor, or the event, which leads to a further deterioration or an opportunity to - is that what you meant? ‑‑‑Yes. 

   Ms Webster – Clinical Psychologist

10. In a Treatment Report dated 5 May 2017 Ms Webster stated, inter alia, the following:

    I have been seeing Sharon Oliver since July 2016 on a weekly basis…..At the time of the referral Sharon Oliver was presenting with significant anxiety, agitation, and suicidal ideation in the context of psycho social stressors, primarily her partner at the time lying to her, and Sharon ending their long-term relationship. However, her presentation is on a background of long-term chronic anxiety and depression ……

    Sharon currently presents with marked agitation and anxiety. She shows signs of motor agitation throughout therapy sessions. She reports depressed mood suicidal ideation with a plan to overdose, and frequently self-harms with alcohol and overdosing on prescription medication to help her with her sleep and reduce agitation and anxiety…..she reports poor sleep, poor appetite with significant weight loss, poor concentration and withdrawal from activities……

    Sharon has a diagnosis of Major Depressive Disorder, recurrent episode, severe, Social Anxiety Disorder with Agoraphobia, Panic disorder and a Generalised Anxiety Disorder.

    …..

11. An entry in Ms Webster’s practice notes, supplied under summons dated 29 July 2016 noted  inter alia the following:

    ….4/12 ago -found out my partner gambled away super money – I went into shock – reluctantly went to hospital[25] – found admission hard – 6/7 in hospital -scared of father …..

    [25] Ms Oliver was admitted to Nepean Hospital from 11 May 2016 - 23 May 2016.

    CONSIDERATION

12. There is no dispute that currently Ms Oliver suffers from a chronic mental health condition which has had various diagnostic labels with the most consistent diagnoses being Major Depressive Disorder (recurrent episode) and Generalised Anxiety Disorder with obsessional traits.

13. It is submitted for Ms Oliver that, because of the incident at work on 3 February 2009 she suffered a “frank injury”, that is, “a very adverse psychiatric reaction” that has “continued until this day”.

1. The submission that Ms Oliver suffered an injury (other than a disease) appears to be based on a premise that, for the 9 years prior to February 2009, not only was she coping well as a valued and productive employee of the ATO, but had been asymptomatic with respect to her mental health. Ms Oliver also relies on the opinion of Dr Pusic.

2. The effect of this submission is to require the Tribunal to accept that in February 2009 Ms Oliver suffered a new mental health condition that was unrelated to her past mental health issues.

3. The difficulty for Ms Oliver is that the evidence before the Tribunal, in our view, does not support her submission.

4. For reasons that follow, the Tribunal is satisfied that for present purposes, the correct characterisation of Ms Oliver’s mental health condition is as “an ailment” as defined in section 4(1) of the SRC Act.

5. Following the birth of her first child in 1995 Ms Oliver suffered her first episode of depression. In December 1996 she was admitted to the Pialla Mental Health Unit - Nepean Hospital (the hospital).

6. Following the birth of her second child in 1996 Ms Oliver suffered her second episode of depression and in January 1998 was again admitted to hospital.

7. This second episode was more severe and during 1998 she was admitted to hospital several times. Her significant symptoms were resistant to medication and, therefore, between February 1998 and April 1998 she required treatment with x14 ECT.

8. During 1999 Ms Oliver continued to suffer significant symptoms and was admitted to hospital three times. On 29 December 1999 she was admitted following a suicide attempt and was subsequently discharged on antidepressant medication. The attending psychiatrist for this admission appears to have been Dr Pusic.

9. At this point we note that, according to her written statement, despite suffering significant and continuing symptoms during 1999, Ms Oliver was able to perform contract work for the ATO.

10. Between 2001 and February 2009 we note the following entries in Dr Nimmagadda’s practice records, described in more detail above:

    ·October 2001 – depression recurred

    ·February 2002 – went to mental health team – discussed needs to see psych

    ·March 2007 – insomnia – anxiety related

    ·February 2008 –  insomnia – anxiety related

    ·May 2008 – insomnia – anxiety related

    ·June 2008 – insomnia – anxiety related

    ·15 August 2008 – major depression

    ·19 August 2008 – major depression

    ·November 2008 – major depression

    ·9 February 2009 – major depression – cheque to wrong person

    ·12 February 2009 – major depression – rang access team 

11. On the 14 February 2009 Ms Oliver was admitted to hospital with Dr Pusic as the attending psychiatrist. At that time, she reported a history of “deterioration in her mental state” over the previous six months.

12. In our view the entries in Dr Nimmagadda’s practice notes clearly demonstrate that prior to 3 February 2009 Ms Oliver was not free of mental health symptoms particularly during 2008. The records demonstrate that she had persistent anxiety related insomnia and in August 2008 presented with an increase in symptoms suggesting the onset of a major depressive episode. She continued to deteriorate over the next few months, despite the introduction of antidepressant medication, and following the incident at work on 3 February 2009 she was eventually admitted to hospital on 14 February 2009.

13. It follows that we do not accept Ms Oliver’s submission that she had a “sudden catastrophic injury” as a result of the incident at work on the 3 February 2009.

14. At the hearing, it was submitted for Ms Oliver that Dr Nimmagadda “had a fixation with mental health issues” and that we should place little weight on his recorded clinical notes. Also, Dr Pusic was quite dismissive of Dr Nimmagadda’s records, his ability to make a diagnosis of major depression and his initial approach to treatment because he was not a psychiatrist.

15. We note that Dr Nimmagadda had been Ms Oliver’s GP for more than 10 years and perusal of all his practice notes, that had been provided under summons, did not support Ms Oliver’s submission, which we have rejected.

16. With respect to Dr Pusic’s comments we note that, in the months prior to February 2009 Dr Nimmagadda had recorded symptoms, reported by Ms Oliver, which he obviously considered were consistent with the onset of an episode of major depression. He had initiated preliminary treatment and as the symptoms progressed he referred her to the access team to arrange for her admission to hospital.

17. On admission to hospital, under the care of the Dr Pusic, Ms Oliver confirmed the history as recorded by Dr Nimmagadda and the diagnosis of major depression was confirmed.

18. For the above reasons we are satisfied that the ailment suffered by Ms Oliver is best characterised as a new episode of her pre-existing Major Depressive Disorder with clinical onset in August 2008.

19. On the available evidence we accept that there was a clear temporal relationship with the incident at work on 3 February 2009 and a further deterioration in Ms Oliver’s clinical condition. Whether the incident contributed to the deterioration of her condition, to a significant degree is, in our view arguable.

20. However, for present purposes, it is not necessary to challenge the determination of 30 September 2010 that under section 14 of the SRC Act, Ms Oliver suffered an “aggravation of major depressive disorder, single episode”.

21. The statutory question which the Tribunal must now consider is whether, pursuant to section 5B(1) of the SRC Act, Ms Oliver’s employment, in particular, the incident at work on 3 February 2009, continues to contribute, to a significant degree, to her current mental health condition.[26]

    [26] Prain v Comcare [2017] FCAFC 143 at [86].

22. In order to address this question it is useful to review Ms Oliver’s progress following her admission to hospital in February 2009.

23. Ms Oliver was in hospital for about four months from 14 February 2009 to 16 June 2009. During this time her symptoms were found to be relatively resistant to intensive treatment with medication and in March 2009 she was treated x 6 with ECT.

24. Ms Oliver was readmitted to hospital on 3 July 2009 for about three weeks because of an increase in the severity of her symptoms.

25. In September/ October 2009 Ms Oliver was treated x10 with ECT with no reported improvement in her symptoms.

26. On 12 February 2010 Ms Oliver was admitted to hospital for about 6 weeks because of stress with the care of her children and issues with her parents.

27. On 28 June 2010 Ms Oliver was admitted for three days following a multi-medication overdose.

28. In December 2010 Ms Oliver was admitted to St John of God (SJG) Hospital for about 4 weeks because of “agitated depression”. Treatment included a change of medication and x 10 ECT.

29. At this point we note that perusal of the substantial hospital clinical records, provided under summons, revealed that the February 2009 episode was rarely mentioned during the various admissions. The issues that were of primary concern to Ms Oliver included her inability to manage her relationship with her children, the difficult relationship with her parents, the impact on the family of her depression and frequent hospital admissions, her high expectations of herself and her frustration at being unable to meet them.

30. In November 2011 Ms Oliver was admitted to SJG Hospital for about 3 weeks for agitated depression. Treatment included group psychoeducation and pharmacotherapy.

31. In March 2013 Ms Oliver was admitted to SJG Hospital for about 4 weeks for anxiety and depression. Treatment included group psychoeducation and a change in medication.

32. In October 2014 Ms Oliver was admitted to SJG Hospital for about 12 days for anxiety and depression. The principal stressor at that time was the breakup of her relationship and the loss of her superannuation which her then partner had gambled away.

33. In May 2017 Ms Oliver was admitted to Nepean Hospital for about 11 days following a decline in her mental state. The principal stressor at that time was financial concerns about the termination of her compensation payments.

34. We note that the pattern of her severe episode of depression in 2009/2010 was similar to her first severe episode in 1998/1999. Both episodes were characterised by a need for hospitalisation, resistance to medication and a requirement for treatment with ECT.

35. We accept that Ms Oliver currently continues to suffer mental health symptoms consistent with a chronic Major Depressive Disorder. However, we are satisfied that the episode of increased severity of her condition which started in August 2008 ceased in December 2010.

36. Ms Oliver’s last ECT treatment was in October­-December 2010. The documentary evidence clearly demonstrates that since 2011 Ms Oliver has had intermittent but infrequent episodes of clinical deterioration which have required relatively short admission to hospital.

37. Furthermore, the episodes of deterioration in Ms Oliver’s symptoms in 2016 and 2017, which required admission to hospital, were clearly precipitated by her current exigent circumstances.

38. On consideration of the available evidence we have decided that Ms Oliver’s current symptoms and intermittent episodes of clinical deterioration can be attributed to her pre-existing Major Depressive Disorder. We are satisfied that her previous employment at the ATO no longer contributes, to a significant degree, to her current medical condition.

39. In reaching our decision we have taken note of all the available documentary and oral evidence and, in particular, Dr Chow’s evidence which is set out in detail above.

40. We have preferred the evidence of Dr Chow because his assessment and opinions were, in our view, consistent with the other evidence and we found his analysis of Ms Oliver’s mental health condition the most persuasive.

41. Dr Pusic’s evidence we found to be inconsistent and unconvincing.

42. He provided no explanation for the errors in his initial written report of 22 September 2010. His inability to recall his involvement in the care of Ms Oliver in February 2009 and his dismissal of Nimmagadda’s records and clinical assessment we found somewhat puzzling.

43. The Tribunal formed the distinct impression that Dr Pusic was trying to structure his evidence to support a conclusion that the single incident in February 2009 was the sole cause of Ms Oliver’s complex chronic mental health condition, and for the reasons outlined above, we did not find his evidence convincing.

44. The opinions of the other psychiatrists did not directly address the relevant statutory question that is before the Tribunal and therefore were relatively unhelpful.

45. The report of Ms Webster also did not directly address the relevant issue before the Tribunal, However, it did emphasis the complex, chronic and severe nature of Ms Oliver’s mental health condition and strengthen our view that it is unlikely that a single incident at work more than 10 years ago continues to contribute to a significant degree to her current symptoms and impairment.

    DECISION

46. For reasons set out above the Tribunal is satisfied that, as at 6 June 2017, Ms Oliver’s previous employment no longer contributed, to a significant degree, to her mental health condition and therefore the effects of the compensable injury had ceased.

47. The decision under review is affirmed.

I certify that the preceding 151 (one hundred and fifty one) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member, and Emeritus Professor P Fairall, Senior Member

........................[sgd]................................................

Associate

Dated: 14 October 2019

Date(s) of hearing:	22 and 23 August 2019
Counsel for the Applicant:	Ms M Fraser
Solicitors for the Applicant:	Mr R Bryden-  Robert Bryden Lawyers
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Ms A Fernandes- Sparke Helmore Lawyers