Paunovska and Comcare
[2012] AATA 887
•17 December 2012
[2012] AATA 887
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/4913
Re
Violeta Paunovska
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Dr Isles, MemberDate 17 December 2012 Place Sydney Decision Summary
The reviewable decision made on 17 November 2010 is set aside and in place of that decision the Tribunal decides:
Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a disease, namely an adjustment disorder.
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
WORKER’S COMPENSATION – Injury – Onset of condition – Whether the employee’s employment by the Commonwealth contributed to or aggravated her medical condition “in a material degree” – Relative contribution – Reasonable administrative action – Incapacity for work – Impairment – Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14
CASES
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan 156 FCR 536
Drenth and Comcare [2011] AATA 582
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
R v Abadom [1983] 1 WLR 126
Wiegand v Comcare (2002) 72 ALD 795REASONS FOR DECISION
Senior Member A K Britton
Dr Isles, Member17 December 2012
Former Centrelink employee Ms Violeta Paunovska seeks review of a decision made by Comcare to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “injury” in the form of a disease, namely an Adjustment Disorder. In a decision made in September 2010 Comcare accepted that Ms Paunovska’s adjustment disorder was significantly contributed to by her employment with Centrelink but concluded that it was a result of “reasonable administrative action” and therefore, by the operation of s 5A of the Act, it was not liable for that disorder.
While there is no argument that Ms Paunovska suffers from an adjustment disorder, Comcare now contends that employment did not contribute to a significant degree to that disorder and, in the alternative, that it was the result of “reasonable administrative action”. Ms Paunovska disagrees. A further issue between the parties is whether Ms Paunovska had been suffering from the adjustment disorder prior to the purported reasonable administrative action said to have taken place in the latter part of 2009. Comcare submits that the condition post-dated that action and did not develop until early 2010; Ms Paunovska on the other hand contends that she has been suffering from the condition since January 2009.
LEGISLATIVE SCHEME
Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Ms Paunovska if it results in impairment or incapacity for work (s 14 of the Act).
The Act defines “injury” to include “a disease suffered by an employee” but not a disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment (s 5A(1)).
“Disease” is defined to mean: (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: s 5B(1). “Ailment” in turn is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). “Significant degree” means “a degree that is substantially more than material” (s 5B(3)).
ISSUES
The central issues to be decided are:
When did Ms Paunovska commence suffering from an adjustment disorder?
Whether the adjustment disorder suffered by Ms Paunovska was contributed to, to a significant degree, by her employment with Centrelink?
If so, was the adjustment disorder a result of reasonable administrative action taken in a reasonable manner in respect of Ms Paunovska's employment?
If not, did the disorder result in incapacity for work or impairment?
What is the date of injury for the purpose of the Act?
Work history
To put the submissions made by the parties in context it is useful to sketch in the background to Ms Paunovska’s employment.
In January 1990, Ms Paunovska commenced working full-time as a customer service officer in Centrelink’s Bankstown office. From that time until shortly before the birth of her daughter in February 2004 Ms Paunovska worked in the office’s “pension section” processing claims and dealing with enquiries from customers about age, carer, disability, sole parent and other pensions.
For the first 12 months after her return to work in 2006, at her request, Ms Paunovska worked one day per week. The stated reason for that request was difficulties in obtaining suitable childcare. (Ms Paunovska had sole responsibility for the care of her daughter, after separating from her husband in 2006.) In April 2007 Ms Paunovska requested that the arrangement continue until her daughter commenced school in 2009. That request was refused. Over the ensuing 12 months Ms Paunovska pressed her managers to reverse that decision and numerous meetings were held. (See report prepared by Centrelink manager Ronda Dufficy dated 11 April 2008). Ms Paunovska’s managers apparently held the view that the operational requirements of the section made it necessary that Ms Paunovska work at least three days per week. Ms Paunovska considered this unreasonable given her family responsibilities.
In October 2007, Ms Paunovska provided Centrelink with a letter from her GP, Dr Mapa:
This is to certify that due to personal and financial problems Violeta Veljanovska [Paunovska] is under enormous stress. As such she is unable to afford childcare for her little daughter Martina, who is three years of age.
Violeta’s sister could look after Martina only for one day per week as she too is working. Therefore at present she is not in a position to work more than one day per week.
At Ms Paunovska’s request, the decision to refuse her request to work one day per week was reviewed by the Merit Protection Commissioner, an independent statutory office holder empowered to review certain types of decisions affecting public servants. In December 2007 the Commissioner affirmed Centrelink’s decision.
While not entirely clear it would appear that between April and September 2007, Ms Paunovska worked one day per week and this increased in October 2007 to three days per week, with an allowance for one day each week of unpaid leave. In April 2008 Ms Paunovska again told her managers that she was unable to work three days per week on account of child care responsibilities and advised that she intended to appeal to the Australian Human Rights Commission.
On returning to work in April 2006 Ms Paunovska was again placed in the Bankstown office, this time in the “youth and unemployment” section. That section dealt primarily with Newstart Allowance claims and enquiries. According to Ms Paunovska the section was extremely busy dealing with up to 1500 customers each day. On her account the work was not only different to, but more demanding than, the work she had been undertaking in the pension section and required a working knowledge of numerous forms, entitlements and processes. She claimed that she was provided with little, if any, training or assistance and found the work to be stressful and demanding. She also claimed that she was unable to deal with about 70 per cent of enquiries and customers often became agitated or abusive while waiting to be served by her. In addition, she claimed that her team leaders were often annoyed with her. She said she repeatedly requested assistance and training but was told that she must “learn on the job”, which given the demands of her role she seldom found the time to do so.
She claimed that during this period her manager, Theresa [Hojeij], constantly demanded that she move to the next customer and would often give her “dirty looks” and criticise her work. She said other managers did much the same thing.
According to Ms Paunovska, from late 2008 her managers began to “hassle [her] about seemingly every aspect of [her] work” — for not doing things fast enough; doing things wrong and at one point not smiling enough.
Ms Paunovska’s performance was reviewed in 2006, 2008 and 2009. Ms Paunovska testified that she could not recall the 2008 assessment and in respect of the 2006 assessment could only recall that she received a pay increment following that review. The 2009 assessment was completed in August and identified a number of shortcomings in Ms Paunovska’s performance to which we shall return.
In December 2008 in the course of a meeting with Bankstown office site manager, Ms Renee Kennett, and Ms Paunovska’s team leader, Ms Theresa Hojeij — apparently convened to discuss a record of late arrivals and unauthorised absences — Ms Paunovska advised that her daughter had been abused at pre-school by another child and this was the reason for the attendance problem. In oral evidence Ms Paunovska stated when she made this disclosure, Ms Hojeij said “Do you like working here?”. At that meeting Ms Kennett agreed to Ms Paunovska’s request to work a one-day week until her daughter commenced school the following month.
Ms Paunovska worked a total of five days in December 2008 and four days the following month. She commenced working three days per week in February 2009. She worked short days, approximately 9.15am to 2.30pm, so she could take her daughter to and from school.
In January 2009, Ms Kennett, who three months earlier had joined the Bankstown office in the role of site manager, observed that Ms Paunovska, whose desk was adjacent to hers, appeared to lacked confidence in dealing with customers, answering enquiries and conducting interviews. In response she offered Ms Paunovska, as a temporary measure, the opportunity to return to the pension section. In an email to HR manager Ms Sally Grimsley-Ballard in February 2010, Ms Kennett wrote that shortly after she commenced work in the Bankstown office it became apparent that Ms Paunovska was unable to do “most elements of the EEDN [Education, Employment and Disability Network] business”. Ms Paunovska welcomed Ms Kennett’s proposal and commenced in the pension section in February 2009 where she remained until mid-2009 when the section was disbanded following a restructure.
Ms Paunovska continued to have difficulties with her work following the transfer. On her account, while she was broadly familiar with the types of benefits handled by the section, since last working there (in 2004) new benefits had been introduced with which she was unfamiliar. She claimed she was not given sufficient time or training to acquaint herself with these new benefits and the procedures employed by the section. Ms Paunovska also claims that she was regularly criticised for the time she devoted to each customer and her practice of not proceeding directly to the next customer but rather making notes after each interview to latter use as an aide memoir.
According to Ms Kennett, Ms Tracey Fletcher — Ms Paunovska’s team leader from February 2009 — reported that Ms Paunovska was unable to perform the duties of her position without a high level of support. According to Ms Kennett those difficulties continued after the mid-year restructure when Ms Paunovska was assigned to more general duties. On Ms Kennett’s account around that time she decided to take a more active role in the supervision of Ms Paunovska, which she hoped would be beneficial given the good rapport they enjoyed.
Discussions surrounding performance and attendance in 2009
From about August 2009 until she commenced recreational leave in early December 2009, numerous meetings were held between Ms Paunovska and her managers concerning her attendance record and work performance.
In August 2009 Ms Kennett met with Ms Paunovska to discuss the results of her 2008/ 2009 performance review in which her performance was given a rating of two: “support required”. A report prepared by team leader Mr Joshua King recorded:
She does not readily share information with others, also at times does not accommodate well with working styles of others, her team members also members of the leadership team.
…
Violeta does not demonstrate any flexibility in adjusting to her regular hours to fit into training schedules, even if there is a significant period of notice and does not make the most effective use of training opportunities offered to her. This and her high level of personal leave is significantly attributing to her lack of knowledge … I have advised Violeta previously that there is a mutual responsibility to for her to ensure she is contributing to and participating in her own development.
Throughout August and September 2009 Ms Kennett initiated a number of meetings to discuss what she believed to be Ms Paunovska’s high level of unplanned leave, pattern of late arrivals, failure to adhere to scheduled break times and high level of “flexi debit”. On 15 September 2009, Ms Kennett met with Ms Paunovska and advised that she intended to issue a written directive requiring that she adhere to her attendance obligations. Ms Paunovska believed that Ms Kennett had been aggressive at that meeting and “out to get her”. Ms Kennett on the other hand believed that Ms Paunovska had been aggressive towards her. Ms Paunovska announced she would be lodging a formal complaint about Ms Kennett.
The parties met the following day and at her request Ms Paunovska was issued with a new part-time work agreement with a revised start time of 9.15 am (formerly 9.30 am).
On 29 September 2009 a formal counselling session was held to discuss Ms Paunovska’s alleged failure to: comply with the directive that she adhere to her attendance obligations; properly record her start and finish times; and general workplace behaviour issues. Ms Paunovska vigorously denied all allegations.
The following day manager Mr Steve Farrell met with Ms Paunovska to discuss her complaint of bullying and harassment made in relation to Ms Kennett. He reviewed but did not uphold the complaint.
In early November 2009 Ms Paunovska was issued with a draft performance support plan. Over the following month Ms Paunovska was provided with individualised training.
Ms Paunovska was absent for work on 18 and 19 November 2009. Her GP certified her unfit for work on those days and suffering from work related anxiety and depression. Ms Paunovska commenced recreational leave on 2 December. On 5 January 2010 she submitted a claim for compensation under the Act. She has not worked since December 2009.
Ms Paunovska’s employment was terminated in October 2010. She unsuccessfully challenged that decision in Fair Work Australia.
When did onset of the condition occur?
In a letter to Centrelink dated 18 December 2009 Dr Mapa certified that her patient had been:
[S]uffering from an acute anxiety disorder from January 2009 due to stress at work and as such is unable to perform to the best of her ability.
On 13 May 2010, Dr Mapa wrote:
During a routine consultation 7th January 2009 Violeta Veljanovska [Ms Paunovska’s maiden name] mentioned to me that she is having trouble at the workplace but she is managing to handle it herself.
Drs Dinnen and Champion assessed Ms Paunovska in 2011. Each prepared reports for these proceedings and gave oral evidence concurrently. While they disagreed about its cause they agreed with Dr Mapa’s opinion that Ms Paunovska’s had been suffering from an adjustment disorder, which had commenced in January 2009. They explained that they used the label “adjustment disorder” to describe a reactive anxiety and/or depression — an excessive or disproportionate response to circumstances — and used the term adjustment disorder interchangeably with “anxiety and/or depression”.
Each were of the opinion that Ms Paunovska’s condition had deteriorated throughout the course of 2009 and each thought she had been suffering from the same disorder throughout that period. Dr Champion thought that while “something had changed” in January 2009 neither Ms Paunovska nor her colleagues probably recognised this. Dr Dinnen thought there was a “marked aggravation” in Ms Paunovska’s condition around August/September 2009; Dr Champion thought that the deterioration was probably more gradual.
At the request of Comcare, Ms Paunovska was assessed by psychiatrist, Dr K Lovric, in mid-February 2010. In Dr Lovric’s opinion Ms Paunovska’s reported anxiety symptoms were mild and not clinically significant:
Ms Paunovska related her history without distress or anxiety. She did not appear depressed and demonstrated a broad range of appropriate affects. She did not appear anxious or agitated, except at the time when her daughter was distressed and cancellation of the interview was discussed.
A month after being assessed by Dr Lovric, Ms Paunovska was referred for assessment by Comcare to psychiatrist, Dr Anne-Marie Rees. In a report dated 6 May 2010 Dr Rees took a history of Ms Paunovska finding it difficult to work since January 2009 “due to the performance management increasing her stress levels”. Ms Paunovska reported to Dr Rees that she had “pushed herself” as long as she could but when she took leave in December 2009 she realised how “wound up” she had been. She told Dr Rees that she had experienced a gradual onset of panic symptoms since early 2009.
Dr Rees was of the opinion that when she saw Ms Paunovska in April 2010 she had been suffering from an adjustment disorder with anxiety and depressed mood. She was critical of the medical treatment provided to Ms Paunovska up to that time believing that the recent- referral to a clinical psychologist had been “urgently needed” given that Ms Paunovska had been experiencing significant panic attacks for over a year. Dr Rees thought formal cognitive therapy and a psychiatrist warranted. In addition she thought review of Ms Paunovska’s medication needed, noting that while there had been some improvement since she commenced on the anti-depressant Lexapro (in early 2010), she was likely to benefit from an increased dosage.
Under the heading “Mental state examination” Dr Rees wrote: “In my opinion Ms Paunovska has developed a psychiatric condition since seeing Dr Lovric on the 16.3.10”.
In March 2011 Ms Paunovska was referred for counselling to psychologist, Ms Teresa Hatfield and continues to see Ms Hatfield on a regular basis. Ms Hatfield is of the opinion that Ms Paunovska suffers from a major depressive disorder. In a report dated 30 August 2012 Ms Hatfield recorded that Ms Paunovska had been experiencing intermittent symptoms of depression and anxiety between 2006 and early 2008, which “minimally impaired” her function. She thought however that from late 2008:
[A]s she perceived the harassment increasing in frequency, it appears the severity of her symptoms would have met the criteria of diagnosis for Major Depressive Disorder, with her symptoms beginning to impair her capacity to function in personal and occupational settings on a more consistent basis”.
Conclusion
In the decision the subject of Ms Paunovska’s application to the AAT, Comcare found that Ms Paunovska experienced difficulties at work by 7 January 2009 and that was the date of injury. Comcare now contends that the date of onset of Ms Paunovska’s adjustment disorder was early 2010, possibly late 2009. It points out that despite her stated opinion that Ms Paunovska had been suffering from an adjustment disorder since January 2009, Dr Mapa did not consider treatment warranted until 12 months later and, apart from a couple of days in late 2009 did not certify Ms Paunovska unfit to work until December 2009. Comcare also points out that Dr Lovric, who saw Ms Paunovska in February 2010, had recorded that Ms Paunovska related her history “without distress or anxiety” and concluded that she was suffering only mild anxiety symptoms.
It is unfortunate that we have not had the opportunity to explore with Dr Mapa the basis of her opinion about the date of onset of Ms Paunovska condition. Her clinical notes, produced in these proceedings, are indecipherable and provide little assistance. Nonetheless she is not the only practitioner to conclude that Ms Paunovska had been suffering from an adjustment disorder (however described) since early 2009. Drs Dinnen and Champion and Ms Hatfield share that opinion. While they did not see Ms Paunovska until two years after the date of purported onset and are no doubt reliant to some extent on Dr Mapa’s opinion, none suggested that the decision not to treat Ms Paunovska’s condition for some 12 months was incompatible with a diagnosis of adjustment disorder.
Dr Lovric is alone among the experts to conclude that Ms Paunovska was not suffering some form of psychiatric condition in early 2010. The single line entry in the report prepared by Dr Rees (who it will be recalled saw Ms Paunovska two months after she had been assessed by Dr Lovric)— “[Ms Paunovska] developed a psychiatric condition since seeing Dr Lovric” — sits uncomfortably with her criticism of the delay in Ms Paunovska’s treatment and the history recorded and apparently accepted, of Ms Paunovska experiencing panic attacks for over a year (as at April 2010).
The weight of medical evidence suggests that Ms Paunovska satisfied the criteria of a diagnosis of an adjustment disorder when seen by Dr Mapa in January 2009.
Comcare v Mooi
Comcare contends that Ms Paunovska could not be said to be suffering from a “disease” as at January 2009 (even if accepted that employment was a significant contributing factor) because at that time she was not “in a condition that is outside the boundaries of normal mental function and behaviour” (Comcare v Mooi (1996) 69 FCR 439 at 444 (Mooi)). Comcare points out that Ms Paunovska continued to work and remained untreated until the end of 2009.
In Mooi Drummond J considered the meaning of “disease” within the Act and noted (at p 443) that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones. His Honour went on to say (at pp 443, 444):
But in my opinion, the expressions used in the Safety Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to “injuries” compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).
His Honour’s statement that a worker claiming to suffer a compensable injury must be able to demonstrate that s/he is in a condition “outside the boundaries of normal mental functioning and behaviour” was made in the context of a discussion about a worker found by the tribunal not to be mentally ill, mentally disturbed or suffering from any psychological disorder. In contrast, as noted, by January 2009 Ms Paunovska was not merely suffering from work-related stress but suffering from a psychological disorder. It does not follow, as we understand Comcare to suggest that because she continued to work for a significant period that she was not suffering from a “disease”. While incapacity is relevant to the question of whether Comcare is liable for Ms Paunovska’s disease by the operation of s 14 of the Act, the issue of incapacity is not determinative of the question of whether she suffered a “disease”.
Reliability of Ms Paunovska’s evidence
Before considering the central question of the degree to which, if any, Ms Paunovska’s adjustment disorder was contributed to by her employment, it is necessary to evaluate the reliability of her evidence and the histories she gave to the experts.
There are a number of inconsistencies between the accounts given by Ms Paunovska and other evidence. For example she told Drs Lovric, Rees and Champion that she had not experienced any work problems prior to those the subject of her current claim. Documents produced by Comcare reveal ongoing problems, involving allegations of unplanned absences and performance dating back to 1997 resulting in a referral for medical assessment and mediation.
In addition the material makes clear that Ms Paunovska failed to fully disclose her history of anxiety and depression to the experts who examined her in the context of her current claim. Dr Rees recorded Ms Paunovska “denied having any previous problems with her performance, interpersonal issues or any worker’s compensation claims … She denied any previous problems with her mental health. She denies that there was a medical certificate in 2007 suggesting that she had problems with stress. She denies having postnatal depression or anxiety problems in the past”. Dr Lovric took a similar history And under the heading “Past Psychiatric History”, wrote “nil of note”. Dr Champion in his report of 7 May 2011, wrote “Ms Paunovska told me that she had not required previous help for her nerves or the prescription of antidepressant or other psychoactive medications from general practitioners or psychiatrists and had not suffered with anxiety, depression or any form of psychiatric disorder prior to the onset of depression during her leave in 2010 against a background of difficulties in the workplace”.
In a letter to Centrelink in December 1999 Ms Paunovska’s (then) treating psychiatrist wrote of the significant impact harassment in the workplace had caused to Ms Paunovska’s mental health. Some months later she was referred by Centrelink for a fitness to work assessment and diagnosed as suffering from reactive anxiety and depression. In 2004 following the birth of her daughter she told a medical officer at Bankstown Hospital that she was feeling “more stressed than usual” and was referred to, but did not attend, an antenatal psychiatrist. In a statement prepared in June 2012 for the purpose of these proceedings, Ms Paunovska stated that she could not recall as claimed by Comcare seeing a psychiatrist in late 1999. In evidence-in-chief she admitted that she had been mistaken.
The assessment of Ms Paunovska’s evidence is made difficult because of these and other inconsistencies and the dearth of independent evidence. While possible, as Comcare suggests, that Ms Paunovska sought to mislead the Tribunal and the practitioners who assessed her, it may also be that given the serious nature of her condition, the emotive and contentious quality of much of the evidence together with the passage of time, Ms Paunovska’s ability to recall events has been compromised. Whatever the explanation, these inconsistencies point to the need to take a cautious approach to the assessment of her evidence especially where unsupported and/or contradicted by other evidence.
Did employment contribute to Ms Paunovska’s adjustment disorder to a “significant degree” in January 2009?
Section 5B of the Act requires that we identify all contributory factors — employment and non-employment related — and then evaluate whether Ms Paunovska’s employment with Centrelink did or did not contribute to her adjustment disorder, to a degree that is substantially more than material. (See Comcare v Sahu-Khan 156 FCR 536 at 542, 543, per Finn J, commenting on an earlier version of the definition of disease contained in the Act). In undertaking that task we must take into account all of the factors listed in s 5B(2). These factors are not exhaustive.
Duration of the employment (s 5B(2)(a)): Apart from a two-year period following the birth of her daughter Ms Paunovska worked on a continuous basis with Centrelink between 1990 and December 2009. On her return to work she worked one day per week for about a year and between one to three days per week until February 2009. From February 2009 until she stopped work, Ms Paunovska was contracted to work three days or about 15 hours per week.
Nature of, and particular tasks involved in, the employment (s 5B(2)(b)): On her return to work in 2006 the work undertaken by Ms Paunovska included checking claim forms and answering questions from and dealing with problems raised by, Centrelink customers about a range of of social security benefits. Her claim that the Bankstown office where she was working throughout this period was extremely busy is consistent with the evidence given by Ms Kennett.
We accept as claimed by Ms Paunovska that while working in the youth and unemployment section (to February 2009) she found the work difficult and struggled to meet the demands of her role As the results of her 2009 performance review reveal this continued throughout the year. We also accept that while working in that section customers became agitated with Ms Paunovska on occasion and she perceived, and probably she was, under pressure from her managers to “keep up”. That is consistent with Ms Kennett’s observation on joining the Bankstown office, which prompted her transfer proposal. Whether as Ms Paunovska believes she was provided with adequate training and support is somewhat irrelevant. The issue is not whether Ms Paunovska was given adequate support but whether her employment contributed to her adjustment disorder. For reasons to which we shall return we think it more likely than not that it did contribute.
Any predisposition of Ms Paunovska to an adjustment disorder (s 5B(2)(c)): The evidence reveals that since at least 1999 from time to time Ms Paunovska reported symptoms of anxiety and depression. She had been under the care of a psychiatrist for at least four months in 1999/2000, diagnosed as suffering from anxiety and depression in 2000, referred to a psychiatrist followed the birth of her daughter; and considered by her GP to have been under “enormous stress” in October 2007.
Dr Champion is of the opinion that Ms Paunovska had probably been suffering from an anxiety disorder or similar condition at least intermittently prior to January 2009 but not immediately prior to 2009. Dr Dinnen agreed this was a possibility but thought it was at best speculative. They agree however that Ms Paunovska’s history indicated that she was a person who was probably vulnerable to anxiety when faced by external stressors. While difficult to identify with precision its type and duration, we think on the basis of Dr Champion’s opinion and albeit scant medical records that Ms Paunovska probably had been suffering from some form of anxiety and/or depressive type disorder intermittently in the decade prior to 2009.
Any activities of Ms Paunovska not related to the employment (s 5B(2)(d)):
None appear to be relevant.
Any other matters affecting Ms Paunovska’s health (s 5B(2)(e)
Iron deficiency
On taking over he care in mid-2010 GP Dr Jim Kafiris referred Ms Paunovska s for blood tests, which revealed that she was suffering from an iron deficiency. Treatment was commenced.
Dr Champion is of the opinion that Ms Paunovska’s Iron Deficiency Syndrome (IDS) was a major contributing factor to her mental health symptoms. Dr Dinnen disagreed stating that he would only accept it as a factor if the IDS were of sufficient severity to cause anaemia (low haemoglobin levels). Dr Champion stated that he based his opinion on his own clinical experience and the “ample scientific evidence”. Dr Dinnen stated that he was unaware of any such scientific evidence and in his clinical practice had never seen a case of an iron deficiency of the type suffered by Ms Paunovska causing a psychiatric condition such as an adjustment disorder.
Apart from a statement obtained on the internet from an alternative medicine nurse practitioner in the U.S., the supporting scientific evidence referred to by Dr Champion was not provided to the Tribunal. While an expert is entitled to rely on research and literature to justify or support their opinion, where it is not a matter of common knowledge amongst their peers it must be identified so that “the cogency and probative value of their conclusion can be tested and evaluated by reference to it”: R v Abadom [1983] 1 WLR 126 at 131. While unarguable that Dr Champion has a distinguished curriculum vitae and is eminent in the field of psychiatry, as the studies he has referred to have not been identified and Dr Dinnen disavows knowledge of them, we are unable to accept the proposition that the purported link between iron deficiency and psychiatric illness is supported by the literature and scientific studies.
A further difficulty with accepting Dr Champion’s opinion on this issue is that the pathology tests tendered in these proceedings and discussed by the doctors provide no firm evidence that Ms Paunovska’s IDS was present during 2009 when she was experiencing symptoms and difficulties at work. The test in May 2009 showed IDS but no anaemia, while the later test in June 2010 showed that both were present. However the test previous to 2009 was in 2004 and gave normal results, although one IDS indicator was at the lower limit of the normal range.
The conflicting medical evidence and uncertainty about the timing of Ms Paunovska’s IDS do not give us confidence that IDS was a major contributor to her adjustment disorder.
Other factors
Marriage breakdown: Shortly after the birth of her daughter Ms Paunovska and her husband separated. Since that time they have attempted reconciliation on a number of occasions without success. Ms Paunovska reported to Dr Champion that her daughter wanted her parents “back together” and she herself “wanted it fixed”. According to Ms Paunovska she does not have a formal agreement with her husband about child support and he “gives what he can … when he can”, sometimes paying for more than 50 per cent of their daughter’s expenses.
In the assessment of whether marital and other factors were stressors we are largely reliant on the account given by Ms Paunovska who is plainly not an independent witness. While possible that the separation contributed in some way to the development of her adjustment disorder on balance we think this unlikely because by 2009 Ms Paunovska had been separated from her husband for close to five years and their relationship was apparently amicable. There is nothing to suggest that the informal arrangements concerning custody or financial support were not working or a source of concern to Ms Paunovska.
Financial problems: While there is limited information before us it would appear that since separating from her husband Ms Paunovska has from time to time experienced financial problems. The statement made by Dr Mapa in October 2007 of Ms Paunovska being under “enormous stress due to personal and financial problems” bears this out. That financial matters were a source of stress to Ms Paunovska is not surprising, given her modest income especially during the extended periods when she was working only one day per week. We think it probable that financial worries contributed to Ms Paunovska’s adjustment disorder.
Parental problems: There can be little doubt that since 2007, possibly earlier, Ms Paunovska has been troubled by issues relating to her daughter’s welfare. As revealed by the protracted negotiations surrounding her request to continue to work one day per week she was worried about the care arrangements for her daughter. In late 2008 these were heightened by her belief that her daughter had been assaulted in care. We also think it more probable than not that the “separation anxiety” the child experienced when she commenced school, necessitating counselling, was in existence prior to this time. In our opinion these concerns were significant contributors to the development of Ms Paunovska’s adjustment disorder.
Child birth problems: The birth of Ms Paunovska’s daughter was apparently complicated. She lost a great of blood. As noted after the birth she reported symptoms of anxiety and was referred to, but did not see, a psychiatrist. She and her husband separated around the time of the birth.
Dr Champion believes that the birth contributed to the development of Ms Paunovska’s adjustment disorder; Dr Dinnen disagrees. On what is before us, it is difficult if not impossible to determine how long after the birth Ms Paunovska’s feelings of anxiety persisted. While possible that the birth continued to be a stressor, we could not be satisfied that it remained so by 2009.
Conclusion
It is notoriously difficult to identify the factor or factors that contribute to the development of a psychiatric condition, and where more than one factor is involved, its relative contribution. The task does not lend itself to objective or scientific measurement and is reliant on, among other things, the history given by the sufferer who, more often than not, lacks objectivity. The task is further complicated where, as in this case, the events said to have contributed to the disorder happened some time ago and subsequent events contributed to a worsening of the condition.
Comcare contends that employment did not contribute to any significant degree to Ms Paunovska’s adjustment disorder. It points to the other stressors in her life and Dr Champion’s opinion that these together with an iron deficiency were the primary cause of the condition. Ms Paunovska on the other hand contends that the main cause of her illness was her mistreatment by her managers and her inability to cope with her work on return from maternity leave.
An assessment of the extent to which, if any, “employment” contributed to Ms Paunovska’s condition as at January 2009 requires the identification of those features of, or events associated with, Ms Paunovska’s employment said to constitute a stressor.
In these proceedings Ms Paunovska identified her pre-2009 “work problems” as: her inability to cope with work and belief that her managers were annoyed with her performance; her hours of work and, towards the end of 2008, her perception that she was being targeted for late attendance. In contrast the histories she gave to the practitioners who assessed and/or treated her, largely focussed on the alleged “bullying and harassment”. See for example Dr Jim Kafisri’s opinion that Ms Paunovska’s depression “is due to bullying at workplace” (report dated 8 March 2011), Dr Rees’s report of 6 May 2010 which makes no mention of problems at work prior to 2009, and Dr Mapa’s report of 30 March 2010 which identified conflicting issues between Ms Paunovska and her manager (presumably Ms Kennett) as the cause of her condition. While there is some reference in the histories to the pressure to “keep up” (see for example Dr Dinnen’s report of 20 December 2011, Ms Hatfield’s report of 30 August 2012, and Dr Mapa’s report of 13 May 2010) taken as a whole it is clear that by the time she left work, Ms Paunovska perceived the alleged bullying and harassment by management, and Ms Kennett in particular, to be her main “work problem”. That is consistent with the answer she gave in cross examination that her “work problem” started at the end of 2008 but “really got worse” in mid-September 2009.
There is no suggestion that Ms Paunovska was or perceived that she had been bullied by Ms Kennett prior to January 2009; indeed the evidence indicates that they enjoyed a good relationship at that time. Apart from her general claim that her managers pressured her to “keep up” and gave her “dirty looks” Ms Paunovska cited only one specific allegation of pre-2009 bullying, namely, the alleged comment made by her team leader, Ms Hojeij. It will be recalled that Ms Paunovska alleged that at a meeting also attended by Ms Kennett after disclosing that her daughter had been assaulted, Ms Hojeij immediately replied to Ms Paunovska “Do you like working here?”. The claim is unsupported and not referred to in either the statement prepared by Ms Paunovska for the purpose of these proceedings, or any of the medical reports that are before us. Absent some supporting evidence we could not be satisfied that Ms Hojeij made that comment.
Notwithstanding her focus on the alleged bullying and harassment said to have occurred in the second half of 2009 we think it more likely than not that by January 2009 work probably had become a stressor for Ms Paunovska for these reasons. First, Ms Paunovska’s claim that she was struggling at work in late 2008 — and had been for some time — is supported by the evidence given by Ms Kennett. It is also consistent with her performance assessment for 2007/2008 which awarded her a rating of two — “support required” in two of the four “work outcome areas”. Second, her account that by this time she was feeling under pressure from her managers is both plausible and not inconsistent with Ms Kennett’s evidence. Third, her claim of experiencing stress as a result of “work” by January 2009 is consistent with the history she gave Dr Mapa and some of the experts. (See for example: Dr Dinnen’s report of 20 December 2011: “She was working in the area of unemployment benefits and the pressure for her to keep up with the work was the main problem”; Ms Theresa Hatfield’s report of 30 August 2012: “From approximately late 2008 … as she previewed the harassment increasing in frequency, it appears the severity of her symptoms would have met the criteria for diagnosis of Major Depressive Disorder”; Dr Rees’ report of 6 May 2010: “Ms Paunovska explained that she has had a gradual onset of panic symptoms since early 2009 related to workplace stress”). It seems to us the most likely explanation for Ms Paunovska’s focus on the events that took place in the second half of 2009 was because they were the most recent and perceived by her, and were objectively, more serious.
We do not agree as argued by Comcare that because over December 2008/January 2009 Ms Paunovska worked at most one day per week it was improbable that work could have had any great impact on her mental health. It is trite that the impact of work on a person’s emotional state is not determined solely by the amount of time they spend at work.
While Dr Champion disagreed about the extent to which work contributed to Ms Paunovska’s condition, he agreed that external stressors had played a role and these included work or Ms Paunovska’s “perception of work”.
Having carefully considered the evidence we are satisfied that by January 2009 work together with domestic and family pressures and anxieties, contributed to the development of Ms Paunovska’s adjustment disorder. We accept, as submitted by Comcare, that domestic and family matters factored large in the development of Ms Paunovska’s condition and, by late 2008, were heightened by the alleged assault on her daughter at pre-school.
Whereas in this case a person has been subject to number of external stressors the task of apportionment is made difficult. While employment was but one of a number of external stressors that contributed to the development of Ms Paunovska’s condition, we think it was nonetheless a significant stressor.
External stressors were of course not the only factors that contributed to Ms Paunovska’s condition. The experts agree that she is a person who is vulnerable to external stressors. Those stressors were magnified by Ms Paunovska’s pre-disposition to anxiety and vulnerability.
It was contended for Ms Paunovska that in applying s 5B(2)(c) — “any predisposition of the employee to the ailment …” — her pre-disposition to anxiety or vulnerability would weigh in favour of a finding that her adjustment disorder was contributed to, to a significant degree, by employment. In Drenth and Comcare [2011] AATA 582 the Tribunal commented (at [74]) identified two possible interpretations of that provision namely, that the predisposition should be used in effect to “discount the impact that employment-related events would have on a vulnerable person, or whether the section was intended to have the opposite effect, that is that any such predisposition would leave the employee vulnerable to the effects of work stressors, so that employment would then be more likely to contribute to the ailment or aggravation to a significant degree”. The Tribunal endorsed the latter interpretation reasoning that it was consistent with the beneficial nature of the Act and the long line of authority of the “egg-shell skull” theory in workers’ compensation cases. (see for example Wiegand v Comcare (2002) 72 ALD 795, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626).
We agree that it is not entirely clear how s 5B(2)(c) should be interpreted. If interpreted as requiring us to discount the impact of employment on Ms Paunovska’s condition we would nonetheless conclude that her disorder was on balance contributed to, to a significant degree, by employment.
Was the adjustment disorder a result of reasonable administrative action?
Comcare contends that Ms Paunovska’s condition was a result of “reasonable administrative action” in respect of her, taken in the second half of 2009. If correct, Ms Paunovska will not have suffered a disease within the meaning of the Act because the Act excludes from the definition of “disease” a “disease” suffered as “a result of reasonable administrative action” (s 5A(1) of the Act).
While these actions undoubtedly contributed to a worsening of Ms Paunovska’s condition given their timing they played no role in its development.
It follows that Ms Paunovska suffered a “disease” within the meaning of the Act.
Did the adjustment disorder result in incapacity for work or impairment?
Given our finding that Ms Paunovska suffered from an adjustment disorder contributed to, to a significant degree, by her employment, by the operation of s 14 of the Act, Comcare will be liable for that disease if it “results in” incapacity for work or impairment.
Ms Paunovska did not suffer an “incapacity for work” within the meaning of s 4(9) of the Act until mid-November 2009. Therefore no issue of liability will arise unless the adjustment disorder resulted in impairment. The Act defines “impairment” to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. In our view, Ms Paunovska’s adjustment disorder “resulted in” damage to, or malfunction of, her mental (or psychological) system or mental function. We are satisfied that that impairment would not have occurred but for Ms Paunovska’s condition or at least its extent would have been significantly less (ss 7(6)(a) and 7(6)(c)). Whether that malfunction or damage was permanent or necessitated treatment may be relevant to her future entitlement to compensation (see for example ss 15 and 24); it is not relevant to the existence of a compensable injury for the purpose of s 14.
What is the date of injury?
Ms Paunovska will be taken to have sustained an injury on the day she first sought medical treatment for the adjustment disorder; or, the disorder first resulted in impairment/incapacity for work; whichever happened first (s 7(6) of the Act). Ms Paunovska asserts that the date of injury is 7 January 2009 when in the course of a consultation she told Dr Mapa that she was having problems at work. Comcare contends that the evidence does not support a finding that Ms Paunovska sought treatment during that consultation and points out that Dr Mapa did not recommend treatment until early 2010.
As noted Dr Mapa’s records do not reveal what was discussed during the 7 January 2009 consultation. In answer to questions from the Tribunal Ms Paunovska said that during that consultation Dr Mapa suggested various coping strategies such as breathing exercises. She also said Dr Mapa told her that mediation was the “best answer” and recommended that she attend fortnightly consultations. While possible that Dr Mapa made these suggestions we think it more likely that Ms Paunovska has confused this consultation with one held around the time she stopped work. It was not until around that time (or shortly before) that Ms Paunovska started to see Dr Mapa on a more regular basis and the issue of mediation was raised. (See for example the exchange of correspondence with between Dr Mapa and rehabilitation provider Claire Aspinall over whether Ms Paunovska should be receiving counselling absent mediation of the workplace dispute.)
That Ms Paunovska did not receive medical treatment is not determinative as the relevant date for the purpose of s 7(4)(a) is not the date treatment was first received but the date treatment was first sought.
Ms Paunovska cannot remember why she arranged to see Dr Mapa on 7 January 2009 and does not suggest that it was because of concerns about anxiety. Nonetheless in that course of the consultation she told Dr Mapa about those concerns. While not direct evidence, we think it reasonable to infer that Ms Paunovska raised the issue because she was concerned about these symptoms and wanted Dr Mapa’s opinion.
We are satisfied that Ms Paunovska first sought treatment for her disorder on 7 January 2009.
Even if we are wrong and the discussion between Ms Paunovska and Dr Mapa could not be construed as “seeking treatment” the date of injury would be 7 January 2009 being the date as discussed above Ms Paunovska’s condition probably resulted in “impairment”.
CONCLUSION
For the reason given the reviewable decision made on 17 November 2010 is set aside and in place of that decision we have decided that Comcare is liable under s 14 of the Act in respect of an injury, being a disease, namely an adjustment disorder.
I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton, Dr Isles, Member ..........[SGD]..............................................................
Associate to Senior Member Britton
Dated 17 December 2012
Date(s) of hearing 24, 25 and 26 October 2012 Date final submissions received 6 December 2012 Counsel for the Applicant John Mrsic Solicitors for the Applicant T D Kelly & Co, Solicitors Counsel for the Respondent Rhonda Henderson Solicitors for the Respondent Sparke Helmore
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