Perceval and Comcare - [2000] AATA 763

DECISION AND REASONS FOR DECISION [2000] AATA 763

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/785

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DIANE ELIZABETH PERCEVAL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date30 August 2000
PlaceBrisbane

Decision The Tribunal: 1. Sets aside the decision under review. 2. Determines that Diane Elizabeth Perceval suffers from a psychiatric injury, chronic adjustment disorder with mixed anxiety and depressed mood. 3. Determines that Diane Elizabeth Perceval's said psychiatric injury prevents her from working. 4. Determines that Diane Elizabeth Perceval's said psychiatric injury was caused by incidents during which she suffered severe mental trauma during the course of her employment with the Department of Veterans' Affairs in 1990 and 1994. 5. Determines that Diane Elizabeth Perceval's said psychiatric injury has resulted in a permanent impairment to the extent of 15 per cent as per the relevant "Guide to the Assessment of the Degree of Permanent Impairment". 6. Directs that the respondent pay the applicant's costs of this hearing in line with the provisions of the General Practice Direction.

...............(Signed)...............................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
WORKERS' COMPENSATION – borderline personality disorder – psychiatric condition caused by work incidents - chronic adjustment disorder – permanent impairment

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member

This is an application to review a decision to refuse workers' compensation to the applicant, Diane Elizabeth Perceval.
The applicant was born on 17 July 1944. She is now 56 years of age.
Between 1980 and 1994, the applicant worked on and off for the Department of Veterans' Affairs. She was based for some of the time in Townsville and for some of the time in Canberra. During the fourteen years between 1980 and 1994 she worked as:
           (a)      a Vietnam veterans counsellor,
           (b)      a counsellor for the victims of drug and alcohol abuse,
           (c)       the operator of a half-way house in Canberra in 1988.
In the 1980s the Government, through the Department of Veterans' Affairs, decided to make a concerted effort to get in touch with Vietnam veterans who were suffering from psychiatric and other disorders and to give them whatever assistance, including medical treatment and pensions, they were entitled. Apparently, many Vietnam veterans felt that the socio-political climate in Australia during the 1970s had resulted in a failure by the rest of Australia to respect the sacrifices that they had made and a failure to recognise the trauma and illnesses that they had suffered and were suffering as a result of their sacrifices. It came to the notice of the Department that there were a significant number of Vietnam veterans who were living as recluses in remote bush camps. It was part of Mrs. Perceval's duties to contact these people and to arrange assistance for them.
When Mrs. Perceval was based at Townsville, the region over which she ranged was the coast and hinterland from Cooktown in the north to Sarina in the south. She would be given the name of a veteran who needed help and either an address or a description of the location in which the veteran lived. She often had to travel alone to remote bush areas along unmade dirt tracks to find veterans living alone in camps that they had set up. They lived in caravans, sheds or humpies that they had built. She was often confronted by veterans who were armed and who were extremely aggressive towards her, both as a stranger "invading" their privacy and as a representative of the Government which they believed had let them down. She also contacted veterans who lived in houses in townships but the attitude of the veterans was often initially aggressive towards her.
Despite the fact that the work she did was very stressful, she coped well with it. She enjoyed the work.
In 1990, however, Mrs. Perceval experienced a very distressing incident. During the course of her duties she went to visit a Vietnam veteran at his home. As she was about to climb the steps leading to the front door, she was grabbed by the veteran who had been hiding under the house. She was dragged under the house into an area that had been set up like a military bunker. The veteran repeatedly threatened to kill her. He accused her of being a Viet cong. He held a knife at her throat for long periods. The ordeal lasted in excess of two hours. The veteran was in an extremely unstable psychiatric state. Eventually, Mrs. Perceval was freed when the veteran's wife was able to approach the bunker and talk her husband into accepting that Mrs. Perceval was not the enemy.
As a result of the incident described above, Mrs. Perceval received counselling by a psychologist and she had three months off work. Mrs. Perceval returned to work. She was able to cope well, with the aid of further counselling from time to time by the psychologist.
In 1994, Mrs. Perceval was subjected to another violent incident involving a Vietnam veteran. The veteran visited her office in Townsville. He shouted, ranted and raved. He said he wanted to kill someone. He took a stick and bashed holes in the wall of the office. Mrs. Perceval and another worker at the centre hid under their table, fearing for their lives. Mrs. Perceval has not worked since that incident.
Mrs. Perceval now suffers from a psychiatric disorder. She claims that her current psychiatric disorder is due to the cumulative effects of the traumatic incidents of 1990 and 1994. She has been examined by four psychiatrists all of whom have had difficulty in diagnosing exactly what is wrong with her but, at least, they all agree on one thing: she is seriously psychiatrically ill. It is most unlikely that at her age she will ever work again; she is unfit for work and her condition is permanent.
Mrs. Perceval has been variously diagnosed as having a borderline personality disorder, having various psychiatric disorders that are usually brought on by stress, a depressive disorder, a bipolar disorder or an anxiety disorder. The psychiatrists all agree that she does not show any signs or symptoms of post traumatic stress disorder.
Those psychiatrists who say that she has a borderline personality disorder, say that she would have had it since her late teens or early 20's, and it would not have been caused by the incidents of 1990 and 1994, even though they were distressing and would have caused her some problems. They say that it is the personality disorder which is ongoing, that the stressful events of 1990 and 1994 would have eventually faded and disappeared altogether so far as causative effects on her condition are concerned.
On the other side of the coin, the other psychiatrists concede that she probably has had some borderline personality disorder for most of her adult life, but point out that she has been able to cope with life very well. She was able to work. Any borderline personality disorder was not so serious that it prevented her from working. They say the traumatic events of 1990 and 1994 have caused her psychiatric state to deteriorate to the point where she cannot work.
What concerns me about the borderline personality disorder theory is that all the psychiatrists agree that it is a disorder which should have been at its worst when she was in her late teens or mid-20's, would have gone on for about 10 years and then should have gradually improved to the point where it would not have caused a problem. By the time a person is in their 50's, as Mrs. Perceval is, she should now be not so badly affected by any personality disorder which she may or may not have had. Mrs. Perceval has a deteriorating psychiatric condition, not an improving one.
It was suggested on behalf of the respondent that Mrs. Perceval's private life was so disturbed prior to 1990, that it showed that she had a personality problem. There is no doubt that she had what could be described as a rough upbringing and a troubled married life. She was married when she was 16 years old. She had her first child at 17. She had five children in the first seven years of marriage. She was married to a partner who was many years her senior, who abused her physically and emotionally. He broke her jaw. This last incident seems to have been the last straw which ended her first marriage. She then married a man who proved to be unfaithful to her and she terminated that relationship. She got into a defacto relationship with a man who subsequently died of a heart attack while having sex with another woman. Certainly her adult married life has had more than its fair share of unhappy experiences. They may well have contributed to or exacerbated whatever personality disorder she may be said to have.
Nevertheless, she was able to function. She was able to work. She was held in high regard. She was head-hunted. She was put into a position of considerable trust. It is not an easy job counselling Vietnam veterans, who are, themselves, very disturbed and some of whom are quite dangerous. She presented a facade of strength, character, courage and competence, otherwise they would not have allowed her to do the job. Yet suddenly, from 1990 to 1994 and onwards she has not been able to cope at all. As I said to one of the psychiatrists, Dr. Likely, "Was this the straw that broke the camel's back?". He thought it was a lot more than a straw. He thought it was more like a large lump of wood breaking someone who was really quite strong prior to that.
Mrs. Perceval was a person who was functioning pretty well until the traumatic incidents of 1990 and 1994, and she has not functioned well since. I am led, inexorably, to the conclusion that whatever she has got now was caused by the events at work in 1990 and of 1994. I reject the notion that her current problems are the result solely of a personality disorder.
It is my view that Dr. Likely was the one who summed up the situation best. In particular I accept his discussion of the diagnosis. He said.
"Ms. Perceval's formative years were characterised by being bereft of empathy and nurturing. These features, amongst others, are thought to be important in the evolution of various personality disorders, in particular, borderline personality disorder. I have no doubt that Ms. Perceval had some borderline personality traits as a result of early adverse developmental experiences.
Despite this, however, she appeared to function extremely well for an extended period of time even in the face of adversity, including domestic violence which ended her first marriage. However, she has had a steady deterioration in her mental health throughout the 1990's, in particular, since 1994.
Whilst I am of the opinion that the stressors which she reported in 1990 and 1994 have not given rise to post traumatic stress disorder….. I am of the opinion that these incidents have given rise to clinically significant distress on Ms. Perceval's part. Not only has she experienced subjective distress, but the symptoms arising from the incidents in 1990, and 1994 in particular, have caused her impairment in virtually all aspects of her functioning. She now finds herself symptomatic virtually all day every day, socially isolated, unable to work, and with little prospect of improvement.
Given these considerations I believe that she has suffered a chronic adjustment disorder with mixed anxiety and depressed mood. This continues unabated despite appropriate multi-modal treatment interventions…..
Much has been made in other reports of Ms. Perceval's pre-existing personality characteristics, however, I believe that there is a clear correlation between the work stress in 1994 in particular, and the evolution of symptoms which have remained pervasive in terms of the distress they caused Ms. Perceval and the negative effects which they are having on her functioning. I clearly believe therefore, that she is suffering an injury."
I find that Mrs. Perceval does have a psychiatric condition described as chronic adjustment disorder with mixed anxiety and depressed mood. This is a serious debilitating psychiatric injury which was caused by the incidents during the course of her work in 1990 and 1994, and she cannot now work as a result of that.

I also further find that she is permanently impaired. Using the appropriate tables, I accept Dr. James' assessment that the extent of her permanent impairment is 15 per cent as per the tables.
I set the decisions under review aside and find that Mrs. Perceval cannot work due to her psychiatric condition brought on by her work and that she has a 15 per cent permanent impairment.

I also direct that the respondent pay the applicant's costs of this hearing as per the general practice direction.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed:         .....................................................................................
           R. Hayes, Associate
Date/s of Hearing  7,8 August 2000
Date of Decision  8 August 2000
Request for Written Reasons 30 August 2000
Counsel for the Applicant        Mr. Drew
Solicitor for the Applicant         Wilson Ryan and Grose
Counsel for the Respondent    Mr. A. Horneman-Wren
Solicitor for the Respondent    Australian Government Solicitor