Prain v Comcare
[2016] AATA 459
•30 June 2016
Prain and Comcare (Compensation) [2016] AATA 459 (30 June 2016)
Division
GENERAL DIVISION
File Number(s)
2013/6326 and 2015/4151
Re
Elizabeth Prain
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 30 June 2016 Place Canberra The decisions under review are affirmed.
...............................[sgd].........................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employee – whether injury or disease – whether applicant continues to suffer from condition – decisions under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 24, 27
Cases
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Canute (2005) 148 FCR 232
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power [2015] FCA 1502
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Plumb and Comcare [2004] AATA 999Treloar v Australian Telecommunication Commission (1990) 26 FCR 316
REASONS FOR DECISION
Deputy President Gary Humphries
30 June 2016
Mrs Elizabeth (Jane) Prain has spent a lifetime in nursing, training as a nurse after leaving school and rising to senior positions within the Australian public hospital system. She oversaw the commissioning of the Liverpool Hospital in 2010, and moved to Canberra in early 2011 to take up a position as a Senior Project Officer for the medical records system at the Canberra Hospital.
That move, however, brought her career in nursing to a disastrous and premature end. After what appeared to be an auspicious start, within a few weeks she encountered animosity and criticism from her supervisor and others at the hospital. She was told that she was bombastic and rude[1] and that her work was substandard. She says she was shunned by her co-workers. These sudden, unexpected developments distressed her, and a pre-existing condition of fibromyalgia (which can be aggravated by stress) flared up. She ceased work on 19 April 2011, and has not worked since. She reported intense sadness, worry, tearfulness and weight fluctuation as symptoms of the condition she suffered arising from the events at the Canberra Hospital.
[1] Transcript at p 15.
Mrs Prain has brought a number of claims for compensation arising from, or connected with, the events at the Canberra Hospital in 2011. A number of these claims were accepted by Comcare, either initially or through consent decisions in the Tribunal; these included:
·adjustment reaction with mixed emotional features
·aggravation of fibromyalgia, later redefined as aggravation of myalgia and myositis, unspecified.
On 29 July 2013 Mrs Prain lodged a compensation claim for permanent impairment and non-economic loss under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the accepted condition of adjustment reaction with mixed emotional features. In a decision dated 13 September 2013 (and affirmed on 27 November 2013) Comcare denied liability for this claim. In her application 2013/6326 Mrs Prain seeks to have this decision of Comcare reviewed by the Tribunal.
On 16 July 2015 Comcare determined that Mrs Prain no longer suffered from the two previously accepted conditions, aggravation of myalgia and myositis, unspecified and adjustment reaction with mixed emotional features, and that she had no present entitlement to compensation under ss 16 and 19 of the Act. That decision was affirmed on 13 August 2015, and in turn Mrs Prain has also sought to have that decision reviewed by the Tribunal in her application 2015/4151.
Relevant provisions of the law
The threshold provision through which any applicant must access the compensation provisions of the Act is s 14, which provides as follows:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Thus the existence of an injury is the sine qua non for an entitlement to compensation. Injury in turn is defined in s 5A:
(1) In this Act:
"injury" means:
(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.
Except where a condition is an aggravation of an injury, it can be seen that, to be compensable, an injury must be either a disease or an injury (other than a disease). Disease is defined in s 5B:
"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.
In terms of securing an entitlement to compensation under s 14, the difference between whether a claimed work-related condition is an injury (other than a disease) or a disease goes, inter alia, to the evidentiary threshold which must be met to establish the condition. The threshold is lower for an injury simpliciter, in that a claimant can succeed simply if the condition arises in the course of his or her employment, whether caused by that employment or not. The test is a temporal one, that is, did the injury arise while the claimant was at work? Similarly the test of whether an injury arises out of the employment is a relatively less onerous threshold to reach; there must be a causal connection between the employment and the injury, a connection which is material and more than de minimis: Treloar v Australian Telecommunication Commission (1990) 26 FCR 316. The Federal Court there held (at 323):
The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
By contrast, the evidentiary threshold for a disease under the Act is higher. Section 5B requires that a disease (or ailment) must have been contributed to to a significant degree by the claimant’s employment. Subsection (3) directs that significant degree means a degree that is substantially more than material. This higher threshold was established by the 2007 amendments to the Act (previously the test for injuries simpliciter and diseases were the same: they required only a material contribution from employment).
In many workers compensation matters before the Tribunal, the distinction between an injury and disease is relatively unimportant. Both parties in the present action conceded that the distinction here may be seminal to the success of Mrs Prain’s claims, and indeed the Tribunal has found this to be so.
Issues to be determined
At the hearing, Mrs Prain’s legal representative conceded that she had now ceased to suffer the effects of work-related fibromyalgia. The respondent, Comcare, asserts that Mrs Prain did once suffer, but no longer suffers from the adjustment reaction with mixed emotional features which gave rise to the previously-accepted claim for compensation, though it accepts that she continues to suffer psychological symptoms. It argued that she no longer suffered from this condition at some point prior to its cease effects decision of 16 July 2015.
Accordingly, the issues which the Tribunal must determine are:
(a)Is Mrs Prain’s psychiatric condition (adjustment reaction with mixed emotional features) an injury (other than a disease) or a disease pursuant to s 5A of the Act?
(b)Does Mrs Prain continue to suffer from a work-related condition?
(c)If so, has she suffered any impairment as a result of the condition, and is the impairment permanent?
(d)If so, what compensation, if any, under Part II, Division 4 of the Act is she entitled to?
Mr Anforth, for Mrs Prain, put it to the Tribunal that Comcare bears the practical onus of showing that the effects of the accepted mental injury have ceased. The submission was based on the Federal Court’s decision in Comcare v Power [2015] FCA 1502 (though Katzmann J there frowned on use of the expression practical onus). That case, analogously to the present matter, concerned a claimant whose entitlement to compensation was reconsidered and withdrawn by Comcare. On the basis that the decision before the Tribunal was whether or not to terminate the claimant’s compensation entitlements arising from her compensable injury in light of changed circumstances, Her Honour determined (at [70]):
… I accept that it is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made.
Comcare accepted this proposition; the Tribunal will apply the test in this way. In a practical sense, this required Comcare to explain the existence and cause of what were evidently Mrs Prain’s ongoing psychological symptoms after 16 July 2015, the date by which it considered the effects of her compensable adjustment reaction condition had ceased.
Is Mrs Prain’s psychiatric condition an injury or disease?
On this question the parties diverged sharply. Comcare contended that the overwhelming preponderance of previous decisions in the Tribunal and the courts treat a psychiatric condition as a disease. It maintained that the present case concerned a disease and not an injury. Mrs Prain’s counsel conceded that the trend of previous decisions was to that effect, but that the issue of how properly to categorise psychiatric conditions has generally attracted little serious curial attention, and that a proper analysis of the relevant legal principles demonstrates that a psychiatric condition can indeed be an injury, and that Mrs Prain’s condition is in fact an injury.
Mr Anforth explained his position in this way:
… an injury is distinguishable from a disease by virtue of this test; is that which happened to the person … mediated from some assault or some incident from the environment onto the body, irrespective of whether it’s because something fell on your head or because somebody attacked you and your mind, your ego, and if it’s an injury that’s occurring, a physical or mental injury that’s occurring because you’re being assaulted from the environment in some shape or form, it doesn’t come down to whether the injury occurred in one second or ten seconds or one day or five days, it doesn’t come down to that all, it’s simply a question of whether this is something coming from out[side] to effect the body from within as opposed to a disease being something that - autogenesis is the word they used in the High Court - something within the body which festers, develops and runs its own course, and so an adjustment disorder I say is the paradigm case of a mental injury and not a disease.
In Comcare v Mooi (1996) 69 FCR 439 and Comcare v Canute (2005) 148 FCR 232 the Federal Court considered that applicants suffering from, respectively, work-related stress and an adjustment disorder fell within the disease arm of s 5A. However, Mr Anforth argued that his characterisation of the proper test of an injury (other than a disease) had not been put to the courts in those cases, and so they could not be said to have ruled definitively on this question. Similarly in Comcare v Power [2015] FCA 1502 there was no contention between the parties that the applicant’s adjustment disorder was an ailment (and thus a disease) for the purposes of s 5A. On this basis he argued that there is no authority for the proposition that you can’t have a mental injury, you can only have a mental disease.
Reliance was also placed on the decision of the Federal Court in May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93. There the Full Court considered a decision of the Tribunal to refuse compensation to an applicant who had been affected by dizziness or vertigo. The applicant did not contend that his condition was a disease, in the sense referred to in s 5A(1)(a), but was rather an injury under s 5A(1)(b). Reference was made to the High Court’s discussion of the meaning of injury in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, where Gleeson CJ and Kirby J said (at [39]) if something:
…can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word.
The Full Court in May commented (at [110]):
We do not, however, see in the statutory concept of injury in the SRC Act any necessity for the attribute of “suddenness”…
An injury involves “physiological change or disturbance of the normal physiological state” as an alteration to a person’s physical or mental state, and one that can be said to be an alteration from the functioning of a healthy body or mind…
The degree to which an injury may reflect an identifiable event will depend on the circumstances.
Since the hearing in March, the High Court has handed down its decision in May on appeal from the Federal Court. In allowing the appeal and restoring the original decision of the Tribunal, it commented (at [44]) that the structure of s 5A (as referenced by the definition of injury in s 4(1)) mandated primary consideration of whether an employee suffers from a disease under paragraph (a); if this is so, there is no need to consider paragraph (b). With reference to the Federal Court’s commentary on the suddenness, it held:
However, as the Full Court correctly held, "suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. As the Full Court said, "suddenness" is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.[3]
[3] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 [47].
The decision of Gageler J in highlighting the requirements for a condition to be considered an injury (other than a disease) is particularly useful:
[75] More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to "getting hurt" (an injury might be constituted by nothing more than "something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel") but that suffering an injury involves something more than merely "becoming sick". An injury, it has long been repeatedly explained, is some definite or distinct "physiological change" or "physiological disturbance" for the worse which, if not "sudden", is at least "identifiable". The universality of that explanation has been questioned, and the comment has fairly been made that "a distinct physiological change is not itself an expression of clear and definite meaning". The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.
[76] The Full Court of the Federal Court referred in the decision under appeal to an injury as "a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". If read as equating a physiological change or disturbance sufficient to constitute an injury with any alteration from the functioning of a healthy mind or body, the reference would in truth involve a significant departure from the particular sense which the repeated explanations of injury in terms of a definite or distinct physiological change or disturbance have sought to convey.
[77] Every ailment or worsening of an ailment can at some level be described as an alteration from the functioning of a healthy mind or body. Indeed every manifestation of an ailment or of the worsening of an ailment might potentially be so described. Not every ailment or worsening of an ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction.
…
[80] The Full Court was right to point out in the decision under appeal that the Act and the case law do not "preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion" and to observe that "[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal's satisfaction on the evidence in each particular case". But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis.
[81] The Tribunal demonstrated that it understood the ultimate question which it needed to answer to determine Mr May's claim when it stated its conclusion in terms that it was "not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs".[4]
[4] Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
It should be noted, of course, that the condition under consideration in May was a physical, not a psychological, condition. In this sense, the authority which Mr Anforth was seeking, to clarify precisely in what circumstances a psychological condition qualifies as an injury, is not provided by the High Court here. However, in overturning some of the reasoning of the Federal Court and in emphasising the continued utility of sudden or identifiable physiological change in the normal functioning of the body as the touchstone for injury, I regard the High Court’s decision as affirming the long line of authorities which have tended to place mental illness in the statutory category of disease. The Tribunal has in mind, in particular, the words of Drummond J in Mooi (at 443-4):
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.
Applying these principles, and for the reasons set out below, the Tribunal finds that Mrs Prain suffered a disease arising from her employment at the Canberra Hospital.
Does Mrs Prain still suffer from a work-related disease?
Counsel for Comcare acknowledged Mrs Prain’s dysfunctionality, but argued that, after five years, the events of April 2011 at the Canberra Hospital had diminished in significance and impact on Mrs Prain’s illness, that other adverse events in her life were now contributing significantly to her depressed state and that there was, in any case, a degree of exaggeration in the intensely-focused attribution of her condition on those events in Canberra.
Mrs Prain gave lengthy evidence-in-chief to the Tribunal, and was extensively cross-examined. In her oral and written evidence there was ample demonstration that she suffers from a psychiatric disorder of some severity. When asked to describe her present psychological symptoms, she said:
I can still look in a mirror and see no one. I can still find myself standing on the balcony at home and wondering if only it wouldn’t hurt and if only I had the courage. I am still sad, I still grieve for the loss of my career, I am still fearful of everything I say and everything I do. I still remain a recluse and I choose to do so because that’s my only safe environment. I fear people and I fear most interactions. I see myself as nothing. I certainly see myself as worthless. I have no confidence, and I no longer believe in my own competency - I don’t think it exists. I remain sad, I get agitated, I get anxious.[5]
[5] Transcript at p 18.
She gave evidence that she had been recruited to ACT Health, to implement work in relation to an electronic medical record system, to be based at the Canberra Hospital. She began that work on 31 January 2011. She described the change in her work environment over the period January-April 2011 as follows:
For the first ten weeks of my employment I was known and referred to by Cathy [Ogilvie, her supervisor] as “Gorgeous girl”. I did my work, I sent everything to Cathy, I had received no negative feedback at that time, and then one day everything changed, and I suddenly became offensive. I was bombastic and rude, I was told I did whatever I wanted to do, I was shunned by my co-workers, I would walk towards a member of staff and they would turn their back on me and walk away, I was isolated, I was left to sit, I became an optional team member at team meetings, I became a pariah and was left to wonder what I’d done.[6]
Her claim for an adjustment reaction with mixed emotional features was based on events at the hospital during the last two weeks (some seven working days) of her employment, from 11 to 19 April 2011.
[6] Transcript at p 15.
In a statement dated 9 August 2012 Mrs Prain provided a quite detailed account of these events. A fine-grained recounting of them does not seem necessary for the purposes of this decision, but the Tribunal does observe that the acts of fellow workers which disrupted her psychological well-being might fairly be described as nothing out of the ordinary: offhand comments, unkind words, ill-considered administrative mechanisms, insensitivity to Mrs Prain’s needs and feelings, but certainly nothing dramatic or shocking in an empirical sense.
She consulted a psychologist, Mr Lurie, on 28 April 2011, to whom she described the following symptoms:
Feelings of worthlessness, sleep deprivation, I had developed poor sleeping habits, my brain didn’t stop, I suffered circular thoughts, I would go over everything that had happened trying to find the crack, trying to find what went wrong. I had taken to reading and re-reading everything that I had ever written for ACT Health to find flaws that could account for the change in attitude. I became depressed, sad, I suffered from fatigue, listlessness, I couldn’t see myself as being anything, I just saw myself as existing, I felt abandoned, I was grieving for the loss of my career, I often suffered periods of overwhelming dread.[7]
[7] Transcript at p 16.
In the period since then, Mrs Prain has continued to seek treatment from Mr Lurie and Dr Karen Colpo, her GP, though other medical practitioners have also been involved in her treatment. She told the Tribunal Mr Lurie had provided her with Cognitive Behaviour Therapy and her GP had prescribed various antidepressant medications.
In September 2013 Mrs Prain became aware that her husband had entered a relationship with another woman. She said It hurt, but it was my fault[8]. She explained that this was because I knew I was pushing him away. He became my world, my only world. I shrank my world to just him so he suffered my depression and my sadness and he suffered my anxiety[9]… She told the Tribunal that in 2014 she was estranged from her daughters too, for similar reasons: I couldn’t control the impact of what happened at Canberra, I tried and I was failing[10]. When asked to explain what changes she had experienced in the type, severity or frequency of the symptoms she experienced between April 2011 and the present time, she responded None. They still all exist[11]. She related continuing problems with sleeplessness, with becoming reclusive and with feelings of worthlessness. She said there was no time since April 2011 when she did not experience the various symptoms she described to the Tribunal.
[8] Transcript at p 18.
[9] Transcript at p 18.
[10] Transcript at p 18.
[11] Transcript at p 18.
Mrs Prain also experienced an aggravation of fibromyalgia in 2011, a condition she attributed to the stress arising from the incidents at the Canberra Hospital. The Tribunal was also told of a chronic adjustment disorder Mrs Prain suffered in 2009. She said that it resolved in the same year. She denied suffering any depressive illness or anxiety prior to 2009, though she admitted to being angry at the time of her resignation from NSW Health in May 2010. She also said that she experienced the onset of chronic regional pain syndrome following failed surgery on her feet in 2008.
Statements from family and friends of Mrs Prain were tendered, though only her husband, Chris Prain, gave live evidence. Those statements were from her uncle Steve Billington, friends Vivienne Beggs, James Craigie (all dated 13 August 2015) and Debbie Malone (14 August 2015). A statement from her daughter, Stephanie Marshall-Prain, was dated 14 August 2015. These all attest to a decline in Mrs Prain’s well-being and happiness in recent years, and to the support each of the signatories has provided to her to deal with her darkest days[12], as one of them put it. They record observations such as Her enjoyment in life has disappeared along with her bright bubbly personality[13], Jane for the moment I feel has no capacity to see how her life is ever going to improve and move forward[14], and my Mum often becomes anxious when in crowds and in busy or heavily congested areas[15]. One statement said I have also seen first hand, the distance and strain that has emerged between Jane and her immediate family members[16].
[12] Statement of Steve Billington, p 1.
[13] Statement of Vivienne Beggs, p 1.
[14] Statement of Debbie Malone, p 2.
[15] Statement of Stephanie Marshall-Prain, p 3.
[16] Statement of James Craigie, p 2.
In a statement of 12 August 2015, Mrs Prain’s husband notes her erratic sleeping patterns, her propensity to overdo[17] her walking and her loss of pleasure in cooking and entertaining. He writes Jane’s life has changed dramatically for the worse over the last few years since her traumatic experience with the Canberra Hospital[18]. Mr Prain was cross-examined, but professed limited recollection of issues such as the causes of his wife’s sleep deprivation prior to the incidents at Canberra Hospital, the reasons for her leaving employment at Liverpool Hospital and her history of compensation litigation against Comcare. His evidence was very guarded.
[17] Statement of Chris Prain, p 1.
[18] Statement of Chris Prain, p 2.
The medical evidence
There were two reports before the Tribunal from Dr John Saboisky, who also gave oral evidence. In a report dated 6 July 2015 he diagnosed Mrs Prain with chronic Adjustment Disorder with mixed emotional features; anxiety and depression[19]. He also opined:
There appears to be a very clear worsening of her pain disorder and the development of psychological symptoms as a result of her employment at The Canberra Hospital. In turn this has caused the deterioration of her relationship with her husband developing an interest in another woman [sic]. This has compounded her symptomatology significantly, particularly in recent times.[20]
In his testimony, he returned to the question of the respective roles of the incidents at the Canberra Hospital and her relationship issues in the perpetuation of her symptoms:
…I think from a common sense point of view, the reason she’s so depressed now has as much to do with the problems in her marriage as to do with what originally triggered it.
I think, without talking to her husband, it would be very difficult to be able to make a better judgement of a 50/50 split.[21]
[19] T-documents of 2015/4151 at p 178.
[20] T-documents of 2015/4151 at p 178.
[21] Transcript at p 70.
He admitted that the basis for his attribution of the deterioration in her relationship with her husband to her employment at the Canberra Hospital was based on what Mrs Prain had told him, and nothing else. He also admitted that there were elements of her medical history before 2011 about which he was unaware when writing his reports, and which could theoretically alter his view about the causes of her present condition. However, in relation to chronic pain and fibromyalgia conditions existing before April 2011 he said:
…according to her, whatever psychological and pain issues she had were incredibly increased because of her employment at the Canberra Hospital…[22]
…I find it very hard to separate all those things out.[23]
He also resisted attempts to delineate chronic pain, marital tension and unresolved Comcare issues as the only, or principal, stressors contributing to her chronic adjustment disorder:
Let’s say someone has a motor vehicle accident, and has a fracture in her neck, and then they develop regional pain syndrome because of the radiculopathy down one arm, and then they can’t work, and because they can’t work they can’t finance the house. The wife goes off with the best mate of the husband, the kids start acting out at school et cetera et cetera, a whole compounding of losses. Now, to my way of thinking, that motor vehicle accident started a domino effect, and I would use the same analogy with her based on the history she provided.
So it’s in that sense that you say her employment at the Canberra Hospital is a significant contributor to any ongoing adjustment disorder, it’s the sort of first domino in the case?---Well, she hasn’t been able to move forward since that time. She has been on a downward spiral of chronic pain and depression and marital disharmony, and I’m not saying for one minute the Canberra Hospital caused her marital disharmony exclusively, but according to the narrative provided to me, there’s a clear linear relationship, temporal relationship, between those factors.[24]
[22] Transcript at p 81.
[23] Transcript at p 82.
[24] Transcript at p 83.
He agreed with Mr Anforth’s proposition that:
The second question is about the questions you were asked about ongoing stimulus or provocateurs of the ongoing adjustment disorder. If a person’s circular thoughts just ruminating month after month, you know, year after year if you like, about the injustice done to them, that’s a source of continuity for the adjustment disorder?---Absolutely.[25]
[25] Transcript at p 86.
Mr Roger Lurie, Mrs Prain’s treating clinical psychologist, prepared several reports on her, having first seen her in 2009 when he treated her for issues arising out of chronic pain she was then experiencing. In a report dated 25 May 2012, he noted:
Jane’s level of stress associated with her case involving ACT Health continues to be a problem and she is receiving ongoing treatment for this.
He detailed the issues she reported confronting at ACT Health, and then added:
The impending court case is stressing Jane greatly as she needs to go through the problems between her and ACT Health over and over again…[26]
Jane’s confidence may take years to recover after such a shock as the problems she was confronted with by ACT Health [sic].[27]
[26] T-documents of 2015/4151 at p 217.
[27] T-documents of 2015/4151 at p 218.
In his report of 18 February 2016, Mr Lurie diagnosed Mrs Prain with Adjustment Disorder (Chronic) with Depressed Mood. This condition he described as being outside the boundaries of normal mental functioning and behaviour, and was contributed to by her employment. He said that since she had re-presented to him in 2011 after the incidents with ACT Health she has shown consistent levels of distress in the clinical range as measured on the Depression Anxiety Stress Scale – 21 (DASS – 21). He added:
Ms Prain presents as a shell of the former woman she was.[28]
[28] P 1.
Mr Lurie gave evidence that the events at the Canberra Hospital in 2011 continue to play a substantial role in her adjustment disorder. He said Jane does ruminate considerably.
He gave evidence of her condition when he treated her in 2009. He said that she presented at that time with depressive symptomatology. He agreed that a number of issues were influencing Mrs Prain’s condition after he began treating her again in 2011: pain issues, concerns around the court case with Comcare, her weight, concerns about her husband – including several references to fears about her marriage, an issue concerning being shouted at by a friend’s husband, her brother, bad news delivered to her by a clairvoyant, a fear about impending surgery, a breakdown in the relationship with her daughter, upset at the tone of medical reports relating to her obtained by Comcare, upset at not being invited to her daughter’s wedding, mental and physical distress arising from a car accident, adverse news from a specialist about her knee, concerns about her parents, among other issues. The tendered clinical notes of Mr Lurie make reference to these issues.
He told the Tribunal that her grievance with Comcare was closely related to her concerns about how she had been treated at ACT Health. He agreed that the litigation with Comcare was relevant to her sense of vindication over her grievance with ACT Health.
Dr David Bell was not called as a witness, but his report of 28 April 2014 was tendered. He had examined Mrs Prain on 22 April 2014. His 21-page report includes detailed analysis and commentary on the previous medical reports he had been provided relating to Mrs Prain, to which he adds some critical analysis of certain trends in medical thinking relating to pain, aspects of which he describes in some contexts as pseudo-illness. In relation to Mrs Prain specifically, he comments:
On 29 April 2011 [sic] Mrs.Prain seems to have developed an adjustment reaction to criticism, which assaulted her excessive self-regard, a trait known technically as narcissism. An adjustment reaction indicates a form of maladjustment that has a self-limited duration… Mrs.Prain has had apparent invalidity since the interview of 29 April 2011 [sic], but an over-all view establishes that it is part of a disorder that long preceded 29 April 2011 [sic]. Over many years, seemingly extending as far back as late childhood, she has complained of disabling pain in almost every part of her body.[29]
As to the current state of her mental health, he opined:
The expected pathway of recovery for an adjustment disorder or a narcissistic injury is mental distress diminishing to insignificance within three months. Mrs.Prain claims that this did not occur, but her presentation at the time of interview, her capacity to do a diploma, her enjoyment of holidays and the periods when she undertook long walks imply that she did recover from any adjustment reaction within the usual period of a few weeks. The prospect of gain from litigation prolongs the symptoms that arise out of simulated illness.
…
It is highly unlike [sic] that the Applicant continues to suffer the effects of an adjustment reaction, which in the light of its definition and established knowledge would, I repeat, have ceased within a matter of weeks after 29 April 2011.[30]
[29] Report of Dr Bell, p 17.
[30] Report of Dr Bell, p 18.
In a report of 21 July 2011, Dr Ross Whittaker detailed conditions Mrs Prain was suffering from prior to April 2011:
·fibromyalgia, first diagnosed in September 2010
·complications arising from surgery on her feet, including Complex Regional Pain Syndrome
·asthma which, with the fibromyalgia, caused her to be off work from May 2010 to January 2011
·multiple other medical and surgical problems
Consideration
As already discussed, the High Court in May has affirmed the continuing relevance of the test for injury posited by Gleeson CJ and Kirby J in Kennedy Cleaning: a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. In relation to the incidents at the Canberra Hospital from 11 to 19 April 2011, the Tribunal considers that there was no single, definable moment or moments during this period when Mrs Prain might be said to have sustained a change or disturbance – of the kind referred to by their Honours in Kennedy Cleaning – amounting to a psychological injury. Her loss of equilibrium seemed to be the outcome of a slow build-up of hurt and resentment rather than of a climactic episode of confrontation or conflict. As such, the Tribunal is satisfied that the condition suffered by Mrs Prain arising from her employment at the Canberra Hospital was a disease, even though the period of its development – some seven days – was relatively short. The Tribunal accepts, applying the test in s 5B of what amounts to a disease, that her employment contributed to a significant degree to the ailment she suffered at that time.
Accordingly, in reviewing Comcare’s decision to discontinue her entitlement to compensation, the Tribunal must consider, as at 16 July 2015, (a) whether Mrs Prain continued to suffer an ailment and (b) whether the circumstances of her employment in 2011 were still contributing, to a significant degree, to that ailment. If the answers to both these questions are yes, the Tribunal should then consider whether her employment continues to contribute to a significant degree to her ailment.
The evidence suggested that Mrs Prain’s life since April 2011 has been a difficult one, having been buffeted by a series of misfortunes: the incidence of pain, anxiety around the litigation with Comcare, her weight fluctuations, concerns about her husband’s health and fidelity, stresses within her family (including in relation to her daughters, her brother, her parents and her aunt), bad news delivered by a clairvoyant, fears about impending surgery and a car accident. It was Comcare’s submission that these events of the past five years have crowded out what occurred at the Canberra Hospital as the major contributors to the present state of her mental health, that the work-related factors were largely a spent force in her life by the middle of 2015. It was Mrs Prain’s submission that these other events are, in varying degrees, manifestations of her essential, ongoing cause of disability: the disruption to her core values and sense of self-worth occasioned by what occurred at the Canberra Hospital. In this thesis, most of the other post-April 2011 factors are in fact not independent causes but are secondary or derivative from the principal work-related cause. As such, as Mr Anforth framed it, they actually count as being on the work-related side of the balance sheet because of their genesis at the Canberra Hospital. He conceded that those incidents may not have been the proximate cause of any adjustment disorder experienced by Mrs Prain in 2015, but asserted that there was an unbroken chain of causation linking the more recent factors with those work-related incidents.
It must be said that there was a body of evidence before the Tribunal supporting each hypothesis. At the heart of the exercise of determining what weight should be given to each set of evidence, however, is the evidence of Mrs Prain herself. Significantly, Comcare put to the Tribunal that Mrs Prain’s evidence should not be uncritically relied upon, and that contradictions within it should lead to the rejection of the truth of some of what she said. It urged the Tribunal not to accept her evidence unless it was corroborated. Such a submission is, from Comcare’s point of view, logical: if she were persuasive as to an honest belief that the events at the Canberra Hospital continued to significantly destabilise her mental well-being, her claim would be likely to succeed.
The Tribunal was, however, troubled by some incongruities in the evidence Mrs Prain offered and in her demeanour as a witness. It noted, in particular the contrast between the severely debilitating condition she described and the way in which she presented in the witness box. She came across as a calm and composed witness, answering questions without hesitation and never seeming to become flustered. She provided concise, purposeful responses, particularly in cross-examination. This seemed at odds with her description of herself as a recluse, as feeling worthless, as having no confidence[31] and as someone who chose wherever possible to not interact with people[32]. She displayed what appeared to the Tribunal to be remarkable forensic self-assurance and sure-footedness for someone who claimed to be fearful of everything I say and everything I do[33]. She told the Tribunal I fear people and I fear most interactions[34], but gave no hint of this during cross-examination from counsel for Comcare, a stranger.
[31] Transcript at p 18.
[32] Transcript at p 29.
[33] Transcript at p 18.
[34] Transcript at p 18.
There were contradictions in the evidence itself. Mrs Prain spoke about the mounting pain in her feet, dating from 1997. She undertook surgery for it in 2008 because it took until 2008 for the cartilage to be completely destroyed and for me to no longer be able to take the pain from bone on bone[35]. She also gave evidence of having developed a hypersensitivity to pain[36]. She spoke of osteoarthritis in her toes. Nonetheless, she also gave evidence of extensive, regular walking. I walk between 10 and 21-22k a day. In my period of distress I will walk those 22k and I would keep walking if I could[37]. She explained this apparent contradiction by saying pain is sometimes an advantage because you can concentrate on the pain and not on the mental issue[38]. This is despite later telling the Tribunal I get tired, so I avoid any task which would exacerbate any pain at any level[39].
[35] Transcript at p 24.
[36] Transcript at pp 34-35.
[37] Transcript at p 29.
[38] Transcript at p 29.
[39] Transcript at p 53.
Mrs Prain was cross-examined about the discovery that her husband was having an affair in 2013. She maintained in the witness box that her overwhelming sadness and isolation had led to her husband’s behaviour. The report of Dr Saboisky, whom she attended in February 2014, records:
She was understandably devastated and there was a worsening of both underlying fibromyalgia and depression and anxiety.[40]
She told Dr Saboisky:
I don’t deserve this from the one person I thought I could trust.[41]
Mr Lurie gave evidence that Mrs Prain had told him at about this time that her husband’s behaviour was indication that she couldn’t trust her husband. Despite the tenor of these records, she maintained before the Tribunal that her depression was principally attributable to the events at the Canberra Hospital in 2011, not the intervening event of her husband’s infidelity, which she told the Tribunal was reasonable behaviour on the part of my husband[42]. She observed: I have always acknowledged it, and I’ve always accepted the blame[43]. Her husband’s behaviour was a sad consequence[44] of what happened to her at the hospital. This does not seem consistent with the contemporaneous records of her clinical advisers.
[40] P 3.
[41] P 3.
[42] Transcript at p 87.
[43] Transcript at p 61.
[44] Transcript at p 64.
Mrs Prain was asked about a letter she had shown her GP, Dr Colpo, in March 2015, apparently describing the role the Canberra Hospital had played in the onset of her mental condition. When it was put to her that the letter was designed to solicit the doctor’s support for her compensation claim, she said:
I showed her that letter so that I could express to her what I sometimes couldn’t do verbally… It was to show her how I felt, the only way I knew how, and that was to write it.[45]
She had told the Tribunal that she trusted Dr Colpo. It therefore seemed strange to the Tribunal that this very articulate woman, who had no difficulty describing her condition and symptoms concisely and at length in the witness box, would find herself unable to articulate her condition orally to her trusted medical adviser of long-standing.
[45] Transcript at p 103.
The evidence contained more than a few incongruities and contradictions of this kind. These were, it appears to the Tribunal, symptomatic of a quite relentless focus by Mrs Prain on tying all her current physical and mental problems to the incidents at Canberra Hospital. The single-mindedness of this focus was evident from the opening questions of her cross-examination:
Ms Prain, your will to obtain compensation from Comcare has become significant over the last five years, is that correct?---It’s a part of my life. It is not a significant part of my life. What happened at Canberra is a significant part of my life.
You’ve invested, I suggest, very significant time into your battle with Comcare for compensation, haven’t you?---I’ve done what I believed was right as a result of Canberra, yes.
Would it be fair to say you’ve invested significant emotional energy as well?---I have invested energy, but I’ve invested more energy into understanding what it is that went wrong at Canberra.[46]
The Tribunal understood Canberra to be shorthand for the incidents at the Canberra Hospital in 2011.
[46] Transcript at p 20.
She told the Tribunal:
… I have never deviated from saying that the Canberra Hospital incident was the catalyst for everything.[47]
Indeed, she did not deviate from this position during her testimony, as she gave attribution to Canberra quite unwaveringly throughout her evidence. This relentless attribution struck the Tribunal as rehearsed and self-serving, an impression reinforced by somewhat unconvincing attempts to wave aside evidence inconsistent with this thesis. This exercise involved discounting the impact of any issue in her life, other than the Canberra Hospital issue, which might have contributed to her unhappiness. Examples of this include:
Sleeplessness
[47] Transcript at p 107.
Mrs Prain gave the following evidence:
You gave some evidence that your sleep has suffered badly since your time at Canberra Hospital?---Yes.
Could you elaborate on that please?---I don’t sleep particularly well. My brain doesn’t stop. I will go over the day’s events all the time. I can’t sleep. I am restless.
When you say you can’t sleep?---I can’t.
How many hours sleep would you get on an average night?---Three, maybe four at a push, only never in one go. They are sporadic sleeps.
You say you can’t sleep because of your circular thoughts and going over things in your head?---Yes, yes.
Are there any other things that contribute to a lack of sleep, in your view?---No.[48]
[48] Transcript at p 28.
Comcare tendered a statement Mrs Prain had prepared in relation to earlier proceedings claiming compensation for aggravation of her fibromyalgia, in which she said:
I continue to have poor sleeping patterns due to pain discomfort in my hips, restless legs, numbness of the upper limbs, hands and feet and general muscular aches and pains.
When confronted with the inconsistency between these statements, she offered When I was asked to provide those statements I was asked to differentiate between the physical symptoms and the psychological[49]. The Tribunal is not satisfied with this explanation; Mrs Prain must have been aware that she was being asked to furnish evidence in support of her claim for compensation.
Fear of future surgery
[49] Transcript at p 54.
There was substantial evidence that Mrs Prain had a fear of further surgery following unsuccessful surgery on her feet in 2008. Her GP, Dr Colpo, made reference in her clinical notes in October 2010 to v frightened of future surgery, and in a list prepared in about July 2013 of current fears Mrs Prain gives priority to Surgery and Prospect of failure – surgery. Yet when asked under cross-examination if the prospect of further surgery caused her considerable anxiety and distress, she responded:
No. No, it is just there. It will happen if I need it but I don’t need it so it doesn’t cause me any harm at all.[50]
List of current fears
[50] Transcript at p 31.
Comcare tendered the list referred to in the previous paragraph. The document was an extract from Mrs Prain’s diary created for the benefit of her psychologist, Mr Lurie. It reads, in part:
Order of current fears:-
1)Chris’ health
2)Surgery
3)Prospect of failure – surgery
4)Fibro pain á
5)Rehab – long-term
6)CRPS recurrence
7)Uncontrolled thoughts of dread
8)ADAPT
9)Comcare psychiatrist
10)Further harm – physical
11)Being totally alone
12)Comcare rejecting liability
She was asked if these were her fears at the time the document was prepared. She responded:
They were my fears on top of the chronic adjustment disorder resulting from Canberra.[51] (my emphasis)
She then told the Tribunal that this was a list Mr Lurie had asked her to prepare detailing her current fears other than those arising from her experiences at the Canberra Hospital. Asked if the list was her initiative or something Mr Lurie had asked her to do, she then said This letter was my own. I did it myself.[52] When pressed to clarify her position, she reverted to the position that Mr Lurie had asked her to prepare it.
[51] Transcript at p 105.
[52] Transcript at p 106.
In his evidence, Mr Lurie said that the list was prepared at Mrs Prain’s initiative, and did not reflect any instructions from him as to its preparation. He told the Tribunal that the list was consistent with the fears she was expressing to him in around July 2013. Mrs Prain presented as a meticulous woman, and gave evidence of constant rumination on her medical condition. The Tribunal therefore attaches some significance to the contemporaneous failure to make mention in this list of anything apparently connected with the Canberra Hospital. Mr Anforth submitted that some items on this list – Uncontrolled thoughts of dread and Being totally alone – are derivative of the Canberra Hospital dispute, but the Tribunal is not persuaded of that connection, given that Mrs Prain herself attempted to explain the list as being her fears on top of the Canberra issues.
Car accident in 2012
Mrs Prain denied that she had become stressed or anxious about a car accident she had in June 2012. No, I wasn’t stressed about it. It was a car accident. I was T-boned.[53]
Discussion
[53] Transcript at p 102.
The Tribunal thus faces a strange dichotomy. On the one hand Mrs Prain, a woman afflicted by severe mental illness, professed great equanimity and composure in the face of tribulations – her husband’s infidelity, estrangement from her children, car accidents, debilitating pain – that would likely have taken a toll on the healthiest person. On the other hand, she told Dr Bell Life can never be the same for me again[54] after what appeared to be relatively unexceptional occurrences over the course of one week in her workplace. Naturally, human beings react differently to similar stressors, and the proposition that she was more psychologically damaged by the workplace occurrences than by the other setbacks in her life, both before and after the Canberra Hospital, has some support in the medical evidence. Nonetheless, the Tribunal is of the view that there was a considerable element of exaggeration in the claims put by Mrs Prain and that, in particular, the other setbacks in her life had a greater impact on her mental well-being than she was prepared to concede.
[54] P 12.
A finding that an applicant has exaggerated evidence of harm suffered in compensable circumstances does not, of course, invalidate the substance of her case. A gilded lily is still a lily. Even if non-compensable factors should be regarded as playing a bigger role in Mrs Prain’s injury, she is still entitled to succeed if the compensable factors have nonetheless contributed to that injury to a significant degree. It is therefore necessary to look at the evidence as a whole – including evidence independently corroborative of her claim – to establish what weight should be assigned to the compensable and non-compensable factors respectively.
One factor which was not acknowledged by Mrs Prain must be taken into account. It was apparent that anxiety derived from her litigation with Comcare has played a role in her disorder. One of Dr Bell’s first observations about her during his interview was of her tearfulness:
The crying seems to me to reflect the considerable investment of resentment about the resistance of her claim.[55]
Dr Colpo noted on 14 February 2014:
She has been involved in a lengthy legal battle with Comcare/ACT health for compensation. This has taken a toll on her physically and psychologically.[56]
Dr Colpo makes references to tension surrounding the litigation in her consultation records, for example on 20 July 2011:
…saw independent mediaclexaminer last wk for workcover claim …today received v upsetting letter statig “lies” about her and her behaviour which she feels is quite personal [sic]
[55] P 14.
[56] T-documents of 2015/4151 at p 44.
In her Order of current fears of July 2013 she lists both Comcare psychiatrist and Comcare rejecting liability, though assigning them lower priority than other fears. Moreover, it seems that angst directed at Comcare is linked with a need for vindication, as the clinical note of Dr Colpo of 5 April 2014 implies:
…has read report from independent medical examiner and is extremely distressed at the content, inferences made etc wants to “fight it”, otherwise “they win”.[57]
[57] T-documents of 2015/4151 at p 38.
In determining whether resentment towards Comcare or the Canberra Hospital in relation to the conduct of litigation seeking compensation can weigh as a compensable factor, it is important to identify the true source of the resentment. Reactions – or indeed overreactions – to events in the workplace, if they are properly regarded as sequelae of an applicant’s employment, are part and parcel of the original injury, but it is well established that anger and frustration towards a respondent in resolving a legal claim for that injury is not. The Federal Court in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195 noted:
In our opinion, the resentment of a sick mind, directed towards formed conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are remote from the employment as the other factors, such as relief at not having to work, dealt with earlier. (my emphasis)
In Plumb and Comcare [2004] AATA 999 the Tribunal considered a workers compensation claim for a condition based partly on a non-work-related disorder and partly on anger towards Comcare. The medical evidence suggested that:
… Mr Plumb’s employment was the initial contributing factor to the anxiety disorder. However since that time the causative factor had become Mr Plumb’s involvement in the proceedings, and the Department’s approach to those proceedings.[58]
The Tribunal also noted a need for vindication and justification. It went on to find that the contribution to his condition made by the stress of the litigation afforded Mr Plumb no basis for compensation.
[58] Plumb and Comcare [2004] AATA 999 at [18].
Since the decisions in Tzikas and Plumb the Act has been amended to require a stronger connection between an employee’s employment and a disease which it is claimed that employment gives rise to. Consideration of this question now requires an examination of the factors set out in s 5B(2). It was put to the Tribunal by Comcare that, in the present case, two paragraphs are particularly relevant to Mrs Prain:
(a) the duration of the employment…
(c) any predisposition of the employee to the ailment or aggravation
In this context, the Tribunal notes the relatively short period (three months) of Mrs Prain’s employment at the Canberra Hospital prior to the events in question, and the evidence suggesting a possible heightened susceptibility on her part to the kind of injury she sustained at the hospital:
·both psychological problems and fibromyalgia predating her employment at the hospital (though she was not currently suffering from either problem at the time she commenced that employment);
·the observation by Dr Saboisky that many people suffering a chronic pain disorder also suffer from depression;
·personality traits predisposing her to reacting adversely to relatively minor stresses. Counsel for Comcare cited her distress at what a clairvoyant had said to her as an example of this.
Mr Anforth pointed out that the 2007 amendments to the Act were not intended to displace the long-standing principle that a respondent must take an applicant as they find them, with whatever vulnerabilities life has given them – the egg shell skull rule. Indeed, he argued that s 5B(2)(c) should be seen as a legislative affirmation of the egg shell skull rule. While conceding that the paragraph is open to interpretation, the Tribunal considers that the effect of the relevant factors in s 5B(2) must be to diminish to some degree the weight attached in this case to the Canberra Hospital issues vis-à-vis other issues contributing to her mental disorder.
The medical evidence bearing on these issues is not uniform in what it suggests. Dr Saboisky told the Tribunal that half of the reason for Mrs Prain’s depression was her Canberra Hospital experience and half was her concerns with her marriage. Dr Bell opines that there is no work contribution because there is no adjustment disorder. Her psychologist, Mr Lurie, offered the view that the issues at the Canberra Hospital were the trigger… in that they lead to the core sense of herself being violated, and that therefore they were a factor in the other issues with which she presented. For its part, the Tribunal assesses the truth to lie somewhere between these positions.
Mrs Prain began to see her psychologist, Mr Lurie, in 2011 after the incidents at the Canberra Hospital. He gave evidence about his consultations with her for the period until 2015, and his clinical notes from that time were tendered. The notes make reference to a wide range of issues which she raised with him in those consultations. These included management of her pain, issues surrounding her litigation with Comcare and family issues including issues with her marriage, but are largely devoid of reference to the incidents at the Canberra Hospital after the end of 2012. This reflection, taken together with the list of current fears she produced in 2013 (which makes no apparent reference to the Canberra Hospital at all) drives the Tribunal towards the conclusion that the prominence of the employment issues in her mind had withered as other issues had taken their place. Those issues may well have been, as Mr Lurie suggested, the trigger for some of Mrs Prain’s later worries, but given her marked susceptibility to stresses of any kind it seems improbable that one particular stressor – the week-long conflict at the hospital four years previously – should still amount to a significant factor in her ongoing condition.
The alternative view, put by Mr Anforth, was that many of the later stressors were linked to the April 2011 injury, and that they would simply not have occurred but for the disrupted personality, the damage to her self-perception and value system occasioned by her employment. The Tribunal accepts that there may be a causal linkage, but would have been more inclined to anchor the later events with employment if a more persuasive narrative of that had been evident. As it was, the linkage was postulated almost entirely through the evidence of Mrs Prain’s perceptions of what was destabilising her mind and, as already indicated, the Tribunal lacks confidence in that evidence without corroboration.
The better view is that each – or at least most – of the factors which the medical records suggest were agitating Mrs Prain after April 2011 was a novus actus interveniens, having the effect of pushing the employment factor further and further into the background. Taking the evidence as a whole, the Tribunal regards that factor as having ceased to be a significant contributor to Mrs Prain’s adjustment disorder by July 2015. The respondent here has met its responsibility (as set out in Power) to demonstrate what other factors are likely to have accounted for her ongoing psychological symptoms after 16 July 2015. Accordingly, the Tribunal affirms the reviewable decision of 13 August 2015.
Mr Anforth submitted that Mrs Prain’s application for review 2013/6326 must fail if the Tribunal found against her in application 2015/4151. Since the claim for permanent impairment and non-economic loss under ss 24 and 27 of the Act cannot survive in the absence of liability by Comcare under s 14 for a compensable condition, the Tribunal also affirms the reviewable decision of 27 November 2013.
I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries .................................[sgd].......................................
Associate
Dated 30 June 2016
Dates of hearing 16, 17, 18 March 2016 Counsel for the Applicant Allan Anforth Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Andrew Berger Solicitors for the Respondent Sparke Helmore
[2] Transcript at pp 7-8.
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