Rand and Comcare

Case [2013] AATA 580

[2013] AATA 580

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/3816

Re

TRACEY RAND

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER
DR B HUGHSON, MEMBER
Date 19 August 2013
Place Canberra

The decision under review is affirmed.

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

Professor RM Creyke, Senior Member

Catchwords

COMPENSATION – Commonwealth employees – anxiety and depression – nature of adjustment disorder – nature of personality disorder – bullying and harassment in the workplace – whether there was contribution to a material extent/significant degree by employment – impact of non-employment factors on injury – predisposition to development or aggravation of injury

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 7(4), 14, 16, 19

Cases

Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Re Lucas and Comcare [2008] AATA 1142
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Smith v Comcare [2013] FCAFC 65

Secondary Materials

Diagnostic and Statistical Manual of Mental Disorders (DSM 4, 2000)

Dr Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edition, 2010)

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER
DR B HUGHSON, MEMBER

19 August 2013

  1. Ms Tracey Rand, born 1960, has sought review by the Tribunal of a reviewable decision by Comcare dated 25 August 2011. That decision denied that Comcare was liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for a condition of ‘aggravation of post-traumatic stress disorder’ said to have been sustained on 1 June 2010.

  2. The matter was heard in Canberra on 3 and 4 June 2013.

    Background

  3. From 1998, Ms Rand had worked with the Department of Health and Ageing (agency) as an Australian Public Service officer, level 6 (APS6). Previously, from 1989, she had worked with the then named Australian National Parks & Wildlife Service (ANPWS).  She had been appointed to the ANPWLS as an APS3, but was an acting APS6 prior to her transfer to the agency in 1998. She received positive performance reviews while with ANPWLS and had good references to assist her when she successfully obtained a position as an APS6 in the agency in 1998. In 2004, Ms Rand transferred to the National Blood Authority (Authority).

  4. In 1994 Ms Rand made a claim for compensation for anxiety/depression which was accepted on 21 November 1994. Liability was ceased from 26 June 1996. She attributed her condition to her ‘inability to cope with conflict created by clashing work tasks and conflicting expectations of supervisor’.

  5. Ms Rand lives with her husband on a property of about 200 acres outside a village in the Australian Capital Territory jointly owned with Ms Rand’s mother. The property has some stock. The couple live together with Ms Rand’s mother. Ms Rand had a son in October 2000. His birth was difficult and he took time to settle.

  6. In 2002 Ms Rand suffered a breakdown. She attributed this to being bullied initially…

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Details
AGLC
Rand and Comcare [2013] AATA 580
Case
[2013] AATA 580
Decision Date

CaseChat Overview and Summary

The case of Rand and Comcare was heard in Canberra on 3 and 4 June 2013. The dispute involved Ms Rand, a Commonwealth employee, and Comcare, regarding the nature of her psychological injury, specifically whether it constituted an injury within the meaning of the relevant legislation. The court had to decide several legal issues, including the appropriate diagnosis of Ms Rand's condition, whether her condition fell within the meaning of 'injury', if she suffered an aggravation of her condition while employed by the Authority, and whether her employment contributed to a material or significant extent to the recurrence of her condition.

The Tribunal considered three alternatives to determine the nature of Ms Rand's claim. First, if it was a continuation of her previous claim, the Tribunal would need to find that there was an aggravation of her accepted condition of an adjustment disorder with anxious mood. Alternatively, the claim could be for compensation based on the fact that her employment produced a worsening of her psychiatric condition, which remained an effective and operative cause of her need for treatment, her impairment, and her incapacity. The third alternative was that the ongoing injury may not be related to her employment by either agency.

The Tribunal accepted that Ms Rand's condition was not Attention Deficit Disorder (ADD) or Post Traumatic Stress Disorder (PTSD), based on the medical evidence of Dr Champion and Dr Phillips. Instead, the Tribunal found that Ms Rand's condition was an adjustment disorder with anxious mood, deemed to be sustained on 11 June 2000. The Tribunal also found that Ms Rand's employment with the Authority contributed to a material or significant extent to the recurrence of her condition. This was based on the Tribunal's consideration of the evidence and the Tribunal's finding that there was a connection between Ms Rand's employment and her psychological injury.

The final orders of the court were not explicitly stated in the text, but it is likely that the court ordered compensation for Ms Rand's psychological injury, based on the finding that her employment contributed to a material or significant extent to the recurrence of her condition. The court may also have ordered that the claim be returned to Comcare to decide what level, if any, of compensation was attracted, as suggested by counsel for Comcare.

Orders

Orders of the court

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Background

Background to the litigation

The matter was heard in Canberra on 3 and 4 June 2013.Background From 1998, Ms Rand had worked with the Department of Health and Ageing (agency) as an Australian Public Service officer, level 6 (APS6). Previously, from 1989, she had worked with the then named Australian National Parks & Wildlife Service (ANPWS). She had been appointed to the ANPWLS as an APS3, but was an acting APS6 prior to her transfer to the agency in 1998. She received positive performance reviews while with ANPWLS and had good references to assist her when she successfully obtained a position as an APS6 in the agency in 1998. In 2004, Ms Rand transferred to the National Blood Authority (Authority). In 1994 Ms Rand made a claim for compensation for anxiety/depression which was accepted on 21 November 1994. Liability was ceased from 26 June 1996. She attributed her condition to her ‘inability to cope with conflict created by clashing work tasks and conflicting expectations of supervisor’. Ms Rand lives with her husband on a property of about 200 acres outside a village in the Australian Capital Territory jointly owned with Ms Rand’s mother. The property has some stock. The couple live together with Ms Rand’s mother. Ms Rand had a son in October 2000. His birth was difficult and he took time to settle. In 2002 Ms Rand suffered a breakdown. She attributed this to being bullied initially by her supervisor at the agency (male supervisor), commencing in December 1999. In June 2000 Ms Rand returned to a different section in which she was supervised by a female supervisor. After some months, she claimed she was being bullied by the female supervisor. After the breakdown, Ms Rand was away from work for about seven weeks recovering. Her psychiatrist since March 1991, Dr Robert Tym, diagnosed an acute stress reaction due to Ms Rand’s ‘perception of an accumulation of psychologically stressful denigrating behaviours by her Director’. Ms Rand described an encounter with the male supervisor on 9 June 2000 when he harangued her, she claimed, for an hour. This followed, she claimed, his request that she provide feedback to him, prior to her move to the female supervisor’s section. Ms Rand said she realised it was pointless to attempt to give him any feedback, so she just sat and listened. This was the first occasion she said she experienced an ‘out of body’ experience, later diagnosed by Dr Tym as Post Traumatic Stress Disorder (PTSD). The agency referred her to Dr Andrew Lark, Health Services Australia who reported on 1 May 2002 that Ms Rand was suffering major depressive disorder which was controlled by medication. Comcare accepted liability on 20 December 2002 for a condition described as: ‘adjustment reaction with anxious mood’. The claim was assisted by a supporting statement from a colleague outlining her own difficulties in working with the female supervisor. Subsequently, based on a further report from Dr Tym, Comcare changed the initial date of injury from 10 April 2002 to 11 June 2000. Liability for that condition continues.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issues are:·What is the appropriate diagnosis of Ms Rand’s condition?·Does Ms Rand’s condition fall within the meaning of ‘injury’ in the Act?·Did Ms Rand suffer an aggravation of her condition while employed by the Authority?·If not, has the recurrence of Ms Rand’s condition been contributed to, to a material degree/significant extent, by her employment by the Authority?Consideration The Tribunal notes that the history of this claim has changed substantially during its history. Ms Rand initially made a claim for aggravation of PTSD. That was a new claim against the Authority for acceptance of liability for that condition. However, during the course of this matter it was accepted that the diagnosis of PTSD was not made out and both parties agreed at the hearing that a claim for PTSD was no longer being pursued. A consequence was that some of the evidence produced for the purpose of the original claim became of limited relevance. A difficulty created by this change was to identify what was the substance of the claim. As counsel for Comcare contended if the claim was a claim for section 14 liability against the Authority, whatever the nature of the condition, if Ms Rand was to be successful, the Tribunal would need to find that there was an aggravation of Ms Rand’s accepted condition of an adjustment disorder with anxious mood. However, as an alternative, he contended she was ‘entitled to compensation on the strength of the fact that…employment with the [agency] produced a worsening or produced a psychiatric condition, which remained an effective and operative cause of her need for treatment, her impairment, her incapacity’. In other words, her claim had either to be a continuation of her previous claim or a fresh one. Counsel acknowledged that if the Tribunal found that Ms Rand’s conditions during her time at the Authority were in fact a continuation of her accepted condition there may have been no need to bring the application for review to the Tribunal. In effect, the most the claim could achieve would be that the claim be returned to Comcare to decide what level, if any, of compensation was attracted. If that was the case, the claim became a claim for compensation for medical treatment and for incapacity payments.[1] Counsel for Comcare agreed with these alternatives except that he suggested there could also be a finding that the ongoing injury may not be related to employment by either agency. The Tribunal has considered these three alternatives in its reasons.What is the appropriate diagnosis of Ms Rand’s condition?[1] Act sections 16 and 19. Ms Rand has an accepted condition of ‘adjustment reaction with anxious mood’, deemed to be sustained on 11 June 2000. Liability for that condition continues. It is accepted by both parties and by the Tribunal, based on the medical evidence of Dr Champion and Dr Phillips, that Ms Rand is not suffering from Attention Deficit Disorder (ADD), nor from PTSD. The opinion of the two experts was that these conditions diagnosed by Dr Tym did not meet the criteria for ADD or PTSD in accordance with an accepted diagnostic tool, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM 4, 2000).[2] The history of her conditions and complaints in Dr Tym’s reports remain valuable, however, since he alone of the psychiatrists has been seeing her since 1991. Dr Rohan’s report of 27 June 2001 recorded that Ms Rand had major depression ‘for about fifteen years’, that is, since the break-up of her first marriage in 1987/88 when she was 27.[2] DSM 5, published in 2013, was not relied on by either expert. That was appropriate given the date of the injuries.