Rand and Comcare
[2013] AATA 580
•19 August 2013
[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, MEMBERDate 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 537Smith 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, MEMBER19 August 2013
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.
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.
Following a referral by her general practitioner, Dr Suzanne Pearson, Ms Rand consulted Dr Kathy Rohan, psychiatrist, with a view to her becoming Ms Rand’s treating psychiatrist while Dr Tym was out of the country. Dr Rohan reported on 27 June 2001 on a consultation with Ms Rand. She recorded Ms Rand saying ‘she has had major depression for about fifteen years’ and that she was ‘currently depressed’. Ms Rand told her that the birth of her son was difficult, and initially he would not settle. After Ms Rand moved to bottle feeding this problem diminished. Other issues Dr Rohan identified in her history of Ms Rand were, she is:
…working full-time as well as having responsibilities on the property. Finances are not easy and their property hasn’t the infrastructure, she says, to work effectively. There are problems in the relationship [with her husband] and she describes a ‘building up of resentment’ towards [her husband]. She says that if she doesn’t organise things within the family or the property that they don’t happen. Her mother’s health has deteriorated and Tracey is needing to support her. She says her mother also expects them to come home from full-time jobs and work full-time on the property which in her mind is unrealistic.
Tracey described being low in mood at ages thirteen and seventeen. She then became quite seriously depressed following the break up of her 12 month marriage when she was twenty-seven. She feels that she has never really recovered since that time. She felt she was made to feel worthless by this person and his leaving was very traumatic.
This account was followed by a history of Ms Rand periodically taking anti-depressants beginning in 1987. At the hearing Ms Rand disagreed with Dr Rohan’s conclusion that she ‘never really recovered’ since 1987-88. In Ms Rand’s view her reaction to the break-up of her first marriage was less significant than portrayed in that report.
On 26 February 2003, following a referral by Dr Tym, Ms Rand saw Dr Donald Lawrence, psychiatrist. He recorded a history of Ms Rand’s parents separating when she was about 10 years old, and of the children residing principally with her mother and moving quite frequently during their school years. He noted that Ms Rand now lived on a property with her husband, son, and her mother, ‘rather disabled by arthritis, and her sister’s son, a 17 year old’. He recorded her saying:
…towards the end of last year things were so difficult for her to manage, at home in particular, that she [felt] she might leave and leave her little son as well. She had found it very difficult to have any concentrating [sic] power in helping her little boy. [However since taking dexamphetamine as prescribed by Dr Tym] she has found this has changed a major factor in her life. She is no longer as frustrated as she was. She said the relationship with her partner has improved and she is no longer harassing him and is much less frustrated with her partner…She said she would like to keep her job and is now relating to her supervisor in a better sense…and is much better at concentrating at her work. Overall she says she has a much better attitude regarding work.
On 27 August 2003, Ms Rand was involved in a motor vehicle accident. She received injuries with some damage to her neck and wrist. A report to the National Roads and Motorist Association (NRMA) by Dr Barraclough, dated 25 October 2005, concluded that Ms Rand had chronic pain syndrome related to soft tissue injuries sustained in the accident. Ms Rand also has a chronic lower back problem.
On 4 February 2004 Ms Rand transferred to the Authority. However, the symptoms Ms Rand exhibited as a result of working with the agency persisted and required an extended period of sick leave from November 2004 until mid-March 2005, about 4.5 months. This leave was covered by her existing workers compensation claim for adjustment disorder accepted since 11 June 2000.
In a report dated 13 January 2005 Dr Tym revised his diagnosis of Ms Rand’s condition from a depressive disorder to PTSD. In his opinion her PTSD was due to bullying confrontations with a male supervisor in late 1999/early 2000, aggravated or exacerbated in March 2002 by a female supervisor. Dr Tym also reported to Comcare on 13 April 2010 that since being with the Authority Ms Rand had told him in December 2006 that she had been bullied by officers in the Authority, in December 2006 and in November 2007, and that she had been harassed by an Executive Level 1 officer (EL1).
In late 2007 to early 2008 the Authority arranged for Ms Rand to be involved in a mentoring program. The program was arranged ‘in response to Tracey accessing a high level of personal leave, expressing anger with her supervisor over his treatment of another staff member’. The mentor reported to the Authority by email on 9 April 2008 that Ms Rand was ‘feeling a lot better about life and work’, that she was ‘comfortable with being at the NBA and feels now she doesn’t want to leave, likes the place and the people etc and can contribute well to the NBA work’. She said they had talked about her work and how Ms Rand could avoid being ‘frustrated by the process’, and ‘how to cope and deal with things if they go astray’, so that Ms Rand ‘will handle herself and situations well and block rather than blow up’. Ms Rand said this meeting had provided her with strategies to assist her at work which had been helpful. She also acknowledged that she had always had a quick temper.
On 24 February 2010, Ms Rand had major surgery for a condition unrelated to her employment. She returned briefly to work in May 2010, but on 17 June 2010 she ceased work. Dr Tym certified that she was unfit for work due to her psychiatric conditions. She has not worked since but has not resigned from the Authority.
The Authority estimated that between 4 March 2004 and June 2009 Ms Rand took 299 days leave, of which 94 days were workers compensation leave, and the remainder a combination of recreation and personal leave. However, between July 2009 and 17 June 2010, when she ceased work Ms Rand only took 12 days leave other than the time off for major surgery for which she took leave for 75 days between 24 February 2010 and 1 May 2010.
Ms Rand made a new claim for compensation on 18 April 2011, naming the agency as her employer at the time she was injured. She nominated two of her supervisors in the agency as the persons responsible; the first, the male supervisor being the initiator of her condition; the second, the female supervisor, having aggravated her condition. On 29 April 2011, Ms Rand wrote to Comcare indicating that her reactions while at the Authority were a response to behaviours reminiscent of those she experienced with the female supervisor at the agency. Ms Rand nominated as the cause of her injury at the agency, ‘An hour’s abuse, after months of bullying behaviour’, referring to the occasion when she claimed she had been harangued by the male supervisor.
Ms Rand also gave evidence that on Christmas Day 2004, while she was on extended compensation leave from the Authority, she had assaulted her mother and following the altercation both needed treatment. She also said she had later assaulted her sister. On both occasions her explanation was that rather than her mother or sister she had ‘seen’ the female supervisor who was ‘threatening my home’, and this triggered the outburst. She also gave evidence that at this time she was feeling anger towards her husband as well as her mother.
Ms Rand’s evidence was that she was not depressed the whole time until the present and that her depression comes and goes. She disagreed with Dr Rohan’s 2001 report which recorded her saying she had been depressed for the last 15 years. Ms Rand said she was depressed in 1987-88 when she and her first husband separated, but after then her depression was only ‘on and off’. She acknowledged that her depression was ‘reactive’. She said she was only periodically on anti-depressant medication and ‘more off than on’, probably in a proportion of 55 to 45 per cent.
Two medical experts Dr John Champion, psychiatrist, and Dr Jonathan Phillips, consultant psychiatrist, provided reports for the purposes of the Tribunal hearing, and gave concurrent evidence. The parties had agreed questions to be considered by the experts at the hearing.
Legislation
The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Relevant provisions are section 4(1) and section 5A containing definitions of ‘injury’, section 5A which describes compensable injuries for the purposes of Comcare liability, and section 7(4) which defines the date of injury.
Issues
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.
The Tribunal notes that the clinical notes indicate that Ms Rand has been intermittently, but regularly, on anti-depressant medication since at least 1994. Dr Champion had commented at the hearing that ‘the need for psychiatric care and what looks like the need for psychiatric medication has been an ongoing factor in Ms Rand’s life [for] well over 20 years’. There is no complete history of Ms Rand’s prescriptions for anti-depressants. In addition, for a period in 2002-2003, and again from June 2010, Ms Rand was taking drugs prescribed for ADD, not an anti-depressant. Nonetheless, the Tribunal accepts that Ms Rand’s depressive symptoms have been periodic since at least 1987, a view, supported by Ms Rand when she concurred that her depression has been ‘on and off’.
Ms Rand contends that her condition should be described as an adjustment reaction with depressed mood, or an adjustment disorder with mixed anxiety and depressed mood. Comcare’s argument is that Ms Rand suffers from obsessional personality disorder, and from episodic but chronic anxiety/depressive symptoms which she has experienced on a recurrent basis since at least early adulthood. In Comcare’s view, Ms Rand was in remission from her chronic anxiety/depressive syndrome in 2012.
Dr Champion said in his report of 16 February 2012 that Ms Rand had had episodic anxiety/depressive symptoms present since early adulthood, but these were not evident at the time of his consultation. However, he also referred to her symptoms as ‘adjustment disorders’, noting they were periodic and recurrent.
Dr Phillips in his report of 8 May 2012 diagnosed Ms Rand as presently having an adjustment disorder with depressed mood. Dr Phillips’s view in his report of 5 July 2012 he said that ‘Ms Rand’s current psychological condition is best understood as a continuation of the psychological condition which was triggered by bullying in the [agency] workplace and exacerbated/aggravated by incidents within the [Authority] workplace’. He pointed out that an adjustment disorder is a condition which develops within three months while the stressor which provokes the condition exists. He said Ms Rand has an ongoing perception that the workplace will remain aversive, that she will be further harassed and intimidated in that setting, and that this is the stressor which means her condition continues. His opinion was that earlier she had probably suffered a broader condition, namely, adjustment disorder with mixed anxiety and depressed mood. Both specialists agreed that her symptoms were chronic, that is, ‘persistent or recurring’.[3]
[3] Dr Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edition, 2010) 129.
The DSM 4 description of an adjustment disorder is:
The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms. The symptoms must develop within 3 months after the onset of the stressor(s) (Criterion A)…By definition, an Adjustment Disorder must resolve within 6 months of the termination of the stressor or its consequences (Criterion E). However, the symptoms may persist for a prolonged period (i.e. longer than 6 months) if they occur in response to a chronic stressor (e.g. a chronic, disabling general medical condition) or to a stressor that has enduring consequences (e.g. to financial and emotional difficulties resulting from a divorce).[4]
[4] DSM 4, 679.
The Tribunal finds that Ms Rand has a recurring and chronic psychiatric condition which can be described as an adjustment disorder with mixed anxiety and depressed mood, symptoms of which have been present intermittently since at least 1987. According to DSM 4 ‘This subtype should be used when the predominant manifestation is a combination of depression and anxiety’.[5] As discussed later in these reasons, Ms Rand has had quite lengthy periods when she is not on medication, says she is happy at work, and had not been suffering from this condition. Ms Rand agreed that her condition has improved since she left work. Accordingly the Tribunal rejects the suggestion by Dr Phillips that the stressor for her adjustment disorder continues, as has her condition.
[5] DSM 4, 680.
Dr Champion also diagnosed a long-standing personality disorder. As he only had one consultation with Ms Rand, Dr Phillips declined to make a diagnosis of personality disorder. However, at the hearing both Dr Champion and Dr Phillips agreed that Ms Rand had obsessional personality traits. Dr Phillips’s view was that these would be problematic only if they came to ‘dominate a personality’.
According to DSM 4:
A Personality Disorder is an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.[6]
[6] DSM 4, 685.
The Tribunal has also accepted that Ms Rand possibly has a personality disorder or at the least personality traits which ‘lead to distress or impairment’. This finding takes into account Dr Champion’s diagnosis, Dr Phillip’s view that Ms Rand has had relationship issues since at least early adulthood, and that she has consistently exhibited negative reactions to those in authority, and has a history of unusually aggressive behaviour.
Of its nature, the DSM 4 definition indicates that a personality disorder is not causally related to employment. Accordingly, there is no need to consider whether Ms Rand’s employment has been causal in her personality disorder symptomatology. At the same time, the Tribunal considers, given the pattern of events which led to a deterioration of Ms Rand’s conditions, that her perceptions of events or situations, perceptions which are a manifestation of her personality, have had a major impact on the development of her adjustment disorder as evidenced by her reaction to events both outside and within her workplace.
The diagnosis of Ms Rand’s adjustment disorder leads to several other issues: do Ms Rand’s symptoms fall within the meaning of ‘injury’ in the Act?; if so, since the symptoms of her conditions are psychiatric in nature, do they meet the test of being ‘outside the boundaries of normal mental functioning and behaviour’?;[7] and if so, were they ‘contributed to, to a significant degree’, by that employment?[8] If the answer to the final question is ‘No’, there is no need to consider the issue of which agency would be liable under the Act for her condition.
Does Ms Rand’s condition fall within the meaning of ‘injury’ in the Act?
[7] Comcare v Mooi (1996) 69 FCR 439 at 444.
[8] Act section 5B – definition of ‘disease’.
An ‘injury, as relevant, 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 out 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.[9]
[9] Act section 5A – definition of ‘injury’.
Ms Rand has a psychological condition. She does not have a physical injury. Accordingly her symptoms fall within the definition of a ‘disease’ in the Act.[10] To be a ‘disease’ the condition must be an ‘ailment’ suffered by an employee. An ailment ‘means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[11] Ms Rand’s depressive symptoms being a ‘mental ailment, disorder, defect or morbid condition’ which she has had periodically over many years, is an ‘ailment’. Accordingly she is suffering from a ‘disease’.
[10] Act section 5B – definition of ‘disease’.
[11] Act section 4(1) – definition of ‘ailment’.
To be compensable the disease must be of sufficient seriousness to be ‘outside the boundaries of normal mental functioning and behaviour’.[12] Since possibly 1987/88, and certainly from 1994, Ms Rand has periodically been on anti-depressant medication for her psychological condition. It was accepted that she had a work-related compensable adjustment disorder in 1994, which had ceased by 1996. She has also been counselled regularly at her workplaces by the counsellors from the Employment Assistance Program, and later a mentor appointed for her by the Authority. She was under the care of a psychiatrist, Dr Tym, regularly from 1991 until 2010. In 2001 and in 2003 she was referred to other psychiatrists, Dr Rohan and Dr Lawrence, respectively, for assessment and treatment. Ms Rand had lengthy periods off work, including 4.5 months on workers’ compensation leave due her accepted depressive condition. In summary, her psychiatric condition is of sufficient seriousness to be considered a ‘disease’ for the purposes of the Act.
[12] Comcare v Mooi (1996) 69 FCR 436 at 444.
In making that finding, the Tribunal has taken into account the need for caution about the finality of that finding, depending on the answer to subsequent issues considered in these reasons.[13]
Did Ms Rand suffer an aggravation of her condition while employed by the Authority?
[13] Smith v Comcare [2013] FCAFC 65 at [34] per Buchanan J with whom Greenwood J agreed; at [55] per Bromberg J.
This raises for consideration whether the symptoms exhibited by Ms Rand amounted to a recurrence of the accepted condition, that is, the manifestation of the symptoms of a pre-existing injury,[14] or an aggravation or acceleration of that condition and hence a new ‘injury’.[15] The Act defines an ‘injury’ to include an aggravation or acceleration of a disease.[16] The issue is whether her episodic symptoms indicate the enduring nature of her psychological symptoms and the reactive nature of her illness, or is it a new condition, being an aggravation of her anxiety/depressive symptoms.[17]
[14] Id at [73].
[15] Id at [65].
[16] Act section 5A.
[17] Re Lucas and Comcare [2008] AATA 1142.
Comcare accepted in 2002, backdated to 2000, that Ms Rand was suffering from an adjustment reaction with anxious mood. The diagnosis of the condition from which she currently suffers, according to the medical experts, is an adjustment disorder manifested by periodic and chronic anxiety and depressive symptoms. Despite a small change in description, that is not a new condition.
At the same time, the nature of an adjustment disorder is that it is generally short-term, and once the stressor(s) are removed or managed, the condition disappears. Ms Rand has acknowledged that her condition is reactive, and for example, denied the accuracy of the report of Dr Rohan in 2001 that she had had a major depression continuously for the last fifteen years. She preferred to describe her condition as ‘off and on’. Ms Rand’s history supports the periodic nature of her condition.
For example, although diagnosed with an adjustment disorder in 1994, liability for the condition was ceased in 1996. Nor did there appear to be a further manifestation of the condition, according to the medical records, until 1999, three years later. For the most part from 2003 to 2006, Ms Rand’s reports were that substantially ‘all was well at work’. She ceased taking an anti-depressant some time in 2005 but resumed in 2007 for a short period.
For a condition to be aggravated it has to be made worse, not simply become worse.[18] By its nature, the disappearance of a condition when stressors are removed is not capable of being described as an aggravation. That does not deny that while the stressor continues, the condition may worsen or be aggravated. Ms Rand’s history, however, is that she has had periods, as she concedes, when she has not needed to be on anti-depressants and when she has been functioning without being disabled by her depressive condition or her anxiety. As she said, her taking of anti-depressants was ‘more off than on’ to the factor of 55 to 45 per cent.
[18] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593.
That view is supported by the clinical notes referred to later in these reasons. They illustrate that since 2002, Ms Rand’s depressive symptoms have disappeared for periods and her need for medication has been periodic and infrequent. In other words her condition has not been aggravated or made worse. She has periodically recovered and then had a recurrence of the condition.
In these circumstances, the Tribunal is satisfied that both the nature of her accepted adjustment disorder condition and her history indicate that the reactivation of Ms Rand’s condition is better described as a triggering or re-manifestation of the condition, rather than an ‘aggravation’, for the purposes of the Act.
Has the recurrence of Ms Rand’s condition been contributed to, to a material degree/significant extent by her employment by the Authority?
In order to reach a conclusion on the issue of causation it is necessary to identify whether it is circumstances within her workplace, or workplaces, or other stressors which are causal of her condition. The issue is decided as a question of fact adopting a common sense approach.[19]
[19] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ.
The period under consideration extends from February 2004 to 17 June 2010 when Ms Rand left work. A preliminary issue is the standard for any causal link which applies. As from 13 April 2007, the Act was amended and provided that liability only arises if a person’s disease ‘was contributed to, to a significant degree, by the employee’s employment’.[20] Under the previous version of the Act, attribution of liability for a disease arose only if the condition ‘was contributed to in a material degree by the employee’s employment’.[21]
[20] Act section 5B(1).
[21] Previous version of the Act section 4(1) – definition of ‘disease’.
At first sight the two tests appear to differ. However, in Comcare v Sahu-Khan[22] the evaluative threshold below which a causal connection was said to be incurred under the earlier legislation was described, inter alia, as being ‘in a material degree; substantially, considerably’ or ‘of substantial import’.[23] Accordingly, in effect, the tests under both versions of the Act are similar.
[22] Comcare v Sahu-Khan (2007) 156 FCR 536.
[23] Id at [15] per Finn J.
Comcare contends there was no work-related incident which led to Ms Rand’s impairment and to her leaving work on 17 June 2010. Dr Phillips’s view was that the events at the Authority made no ‘more than a relatively minor contribution to her problems overall’. Dr Champion’s view was that Ms Rand’s perception was that the events at the Authority were of lesser impact than at the Authority. However, in his view, in each of her three workplaces – the ANPWS, the agency and the Authority – there was a recurrent pattern of problems for Ms Rand in her workplaces.
No finding has been made at this point about a date of injury,[24] since to do so may be unnecessary if it is found that work did not contribute to a significant extent to the triggering of an adjustment disorder.[25]
[24] Act section 7(4).
[25] Smith v Comcare [2013] FCAFC 65 per Buchanan J at [35] with whom Greenwood J agreed; at [54] per Bromberg J.
In deciding whether Ms Rand’s employment with the Authority contributed, to a material degree/significant extent, to Ms Rand’s claimed condition, the Act provides that the following, non-exhaustive matters may be taken into account:
·The duration of the employment;
·The nature of, and particular tasks involved in, the employment;
·Any predisposition of the employee to the ailment or aggravation;
·Any activities of the employee not related to the employment;
·Any other matters affecting the employee’s health.[26]
The duration of the employment
[26] Act section 5B(2).
Ms Rand commenced work with the Authority in February 2004, a position she retained until she ceased work in 2010, a period of six years. She had previously worked for the agency for six years and for the ANPWS for nine years. This period at the Authority is of reasonable length and is not especially significant in terms of contribution to her condition. The Tribunal notes that Ms Rand’s problems both in and outside her workplace have recurred over many years irrespective of the workplace in which she was employed.
The nature of, and particular tasks involved in, the employment
Ms Rand said in her statement: ‘When I have been well, I have enjoyed the work that I have done at the [Authority]’. She also maintained that she had not been bullied at the Authority. This statement is illustrated by examining the records of Ms Rand’s complaints to Dr Tym about her workplaces since 2000.
His records show:
·14.04.00: ‘she was extremely distressed at work because of her immediate supervisor, [the male supervisor]…At that time she was complaining that she was severely distressed and severely depressed and she was going off work but did not want to go on Comcare’
·05.05.00: ‘was being harassed by [the male supervisor]’
·23.05.00: had ‘discussions’ with her boss (the male supervisor) following which she had ‘stewed all night’…had a ‘big blue’ with her boss the day following the discussions
·22.08.00: ‘new job with better people’
·05.02.02: ‘last few days she felt v distressed, depressed and anxious and that she had ‘lost it’ with her boss in the [agency], a [female supervisor]’
·19.03.02: ‘she had started an ‘harassment’ process against [the female supervisor]’
·11.04.02: ‘sleepless due to the psychological stress of her meetings with [the female supervisor].
·23.05.02: ‘If I saw [the female supervisor] I’d most probably hit her’
·22.07.02: ‘would return to work on 2.8.02 but that she had a continuing fear of [the female supervisor]’
·21.07.03: ‘further harassment at work from [female supervisor]’
·24.02.04: ‘v happy to be free of [the female supervisor]’
·06.12.06: ‘complained of being bullied at work by [another colleague]’
·10.11.07: ‘off work because of harassment from [another colleague]’
·13.11.07: ‘still problems with bullying from [another colleague]; [a different colleague] – he has stressed me endlessly and he refuses to communicate with me’
·‘Ceased work on 17.06.10 because of harassment at work from a supervisor EL1’.
This record involves 15 complaints in 11 years, roughly one a year. The Tribunal notes that the greatest intensity of complaints occurred in 2000 and 2002, and led to her adjustment disorder being accepted by Comcare at that time. Only one reference to work matters appears in Dr Tym’s notes in each of 2003 and 2004. There are no further complaints until December 2006. Thereafter there are some three to four complaints, about one every twelve months, until she stops work in June 2010. This record is significant since it appears that it is Dr Tym to whom she has mostly confided her workplace concerns.
The clinical notes from her doctors are almost bereft of complaints about Ms Rand’s workplaces. The Gungahlin Medical Practice notes for 2007 to 2010 do contain two entries referring to complaints about the workplace in 2007, two more in 2009, and then a comment on 6 January 2010 that ‘work issues resolved, person who distressed her at work resigned’, a total of four negative comments over four years. These records do not demonstrate a significant concern on Ms Rand’s part about the nature of, or tasks required of, Ms Rand in her workplace.
However, there are records indicating some dissatisfaction by her at tasks she was asked to perform at the Authority. For example, it was reported that she found it a major challenge to complete the Business Continuity Plan for the Authority and to be responsible for major aspects of Comcover annual risk survey, both tasks taking her more time than usual to complete, and she said she was not comfortable to assist with the annual report. In the view of the Authority both tasks were commonly completed by someone at an APS6 level.
The reports from her employers as to Ms Rand’s performance have varied. A report about her work performance from the Deputy General Manager of the Authority, one not tested at the hearing, said that overall, Ms Rand:
…became dissatisfied with all supervisors she was placed with and generally with other team members. She was offered many training opportunities, she took more leave than the average staff member, her normal work day was just within hours, she carried a lower work load than most other officers, was slow to complete tasks and often expressed concern at complexity of tasks. She had a poor memory of context and history of tasks requested. Only with intense one-on-one management by senior management did Tracey demonstrate her full potential.
These reports do not indicate that the work Ms Rand was asked to do was inappropriate or above her position level. Ms Rand’s most commonly expressed reaction indicates a level of frustration on occasions when she perceived colleagues or supervisors had been rude and lacking in understanding, or who were bullying or harassing her or others. However, Ms Rand also said in her statement and repeated at the hearing that no-one bullied her at the Authority and she described very good relationships with some of her supervisors there. So while she had some conflicts with other staff at the Authority, overall the record is mixed.
Ms Rand’s own competence, by her own admission, may have been one reason for her dissatisfaction with her workplace. As she explained in relation to her decision to leave work at the Authority, ‘It had been quite a difficult place to work. I felt there was not a lot of purpose being there. They weren’t happy with me. I…felt I couldn’t pick up my performance to what was required’. So she had taken leave for her operation, returned there briefly in May 2010, and then gone on extended leave.
In summary, after 2002, Ms Rand’s complaints about events and personalities in her workplace diminished. Although there was a level of dissatisfaction by management with Ms Rand’s output, and there is an indication from her that this was a trigger to her leaving her employment, there is no indication that the tasks were excessively demanding or beyond the competence of someone at her level. The Tribunal has been unable to identify from the evidence any particular event while at the Authority which caused Ms Rand to leave work. Generally there was nothing untoward about the nature of, or the particular tasks which Ms Rand was allocated in her workplaces which contributed to her depressive condition.
Any predisposition of the employee to the ailment or aggravation
The evidence indicates that Ms Rand has had periods of depression since 1987-88. Thereafter she had periodically but regularly been on anti-depressant medication. The history of her medication is incomplete. Dr Tym’s records, being the best available, indicate the following:
·07.08.1996: Anti-depressant.
·28.06.1999: Taking an anti-depressant.
·05.12.2001: Prescribed anti-depressant.
·05.02.2002: Still on anti-depressant.
·15.10.2002: Prescribed medication for ADD/PTSD.
·14.07.2004: Depression returned and restarting anti-depressant.
·18.04.2007: Stopped taking one anti-depressant and wished to start another.
The clinical records of Dr Tim Watson, her general practitioner since September 2006, are also relevant:
·13.09.2006: Depression and on an anti-depressant.
·01.06.2007: Little depression at the moment.
·18.07.2007: Sleep much improved and mood much better.
·28.09.2007: ‘mood has deteriorated again over last 2/52’.
·07.11.2007: Not depressed, sleeps well.
·22.05.2008: ‘Neck/thoracic pain and depression, persistent low mood yes. Thoughts of self-harm, yes, initial insomnia’.
Dr Watson’s notes refer only to one occasion when Ms Rand was on an anti-depressant. Overall, and in particular since 2006, there has been a significant diminution of reference in the medical records to depression, much less to her being on anti-depressant medication.
Dr Champion’s view in February 2012 was that her condition was in remission although looking at her entire history he said ‘there’s an overall pattern…that led to regular adjustment disorders’. Dr Phillips’s view in his report of 5 July 2012 was that Ms Rand still suffered from an adjustment disorder.
Ms Rand’s view was that since being away from a workplace for three years she is quite a lot better but that her earlier breakdowns, and the reason she left work on 17 June 2010 was due to events in her workplace while at the agency, not at the Authority.
These records indicate a predisposition to depression on the part of Ms Rand. She acknowledged that after a time, when not on medication, her depression returns. However, the records also indicate that she has periods when she is well, not needing medication, and functions adequately. In other words, Ms Rand’s predisposition to depressive disorders has played a significant role in her life, including her employment, but her symptoms have been periodic and have shown a marked diminution while at the Authority.
Any activities of the employee not related to the employment and any other matters affecting the employee’s health
These two factors are linked in Ms Rand’s case and will be considered together. The Tribunal has considered Ms Rand’s history generally in order to identify potential stressors which may have led to her condition.
Dr Rohan’s view in 2001 was focused on therapeutic, not medico-legal matters. However, issues she identified which affected Ms Rand’s mental health were Ms Rand’s relationships with her first and second husband and with her mother, financial issues concerning the farm, and the difficulties of balancing a full-time workload with her responsibilities on the farm.
Those views were echoed in 2003 by Dr Lawrence who referred principally to her initial problems with the birth and the feeding of her son, her mother’s increasing level of disability, and having her nephew living with them. There is, however, a reference in his report to her relating better to her supervisor at work and a positive attitude to staying at work and her attitude to work.
It is notable that although these consultations occurred in 2001 and 2003, there is either no, or minimal, reference in these reports to work stresses. There was a reference to her concern about her anger towards her mother and husband in mid-2004 when she resumed taking an anti-depressant, but that was a trigger outside her employment.
Ms Rand was involved in a motor vehicle accident in August 2003. The injuries left her with some level of chronic pain. She also suffered from chronic lower back pain and, at least until her operation, also from abdominal pain. In February 2010, Ms Rand underwent major surgery from which she took some time to recover.
Dr Tym’s report of 13 April 2010, confirmed that Ms Rand’s condition has been fluctuating over the past 20 years. He specifically noted:
· There has been a fluctuating worsening and improving of the diagnostic criteria/indicators/symptoms in response, possibly to medication but also to perceived or misperceived slights, insults and/or aggressive encounters/confrontations with superiors at her various workplaces and with her mother and partner over the past 10 or so years.
· There has been a fluctuating level of sensitivity hence depth of experience of the symptoms which appears to coincide with fluctuating levels of perceived adverse life events. Within the last four months she has experienced severe…pain following …surgery and severe back pain following spinal injury, both unrelated to work.
· It is unlikely that Miss Rand’s symptoms directly related to perceived or misperceived slights, insults and/or aggressive encounters/confrontations with superiors at various workplaces would have been present in any event. It is likely that Miss Rand’s symptoms are directly related in significant part to perceived or misperceived slights, insults and/or aggressive encounters/confrontations with her mother and her partner, together with her…pain, would have been present in any event.
In summary, although Dr Tym allocated 51 per cent of Ms Rand’s problems to her workplace, he had also noted:
There are many factors outside the scope of the employment which have caused and or aggravated Ms Rand’s condition. Many are minor personal factors other than those already listed…; those mentioned or listed include a motor vehicle accident, poor relationship with partner, poor relationship with mother, poor relationship with sister, pregnancy, giving birth, operation, back pain, financial difficulties.
Dr Champion’s view was that ‘Ms Rand’s internal functioning…caused problems for her not only in her workplace but in her personal life and elsewhere’. This includes her tendency to become angry with those within and outside her workplace and led to her assaulting members of her family and wanting to assault people in her workplace. Ms Rand acknowledged she had a quick temper and that this caused her concern. Dr Tym records on 22 June 2004 that Ms Rand was: ‘extremely worried about her anger towards her mother and towards her partner’. Dr Phillips’s view was that workplace stressors were predominantly the cause of her condition, but he did acknowledge that she had personality traits which also made a contribution.
These issues have been acknowledged by Ms Rand. She said that although she would have liked to keep working, and that she had good opportunities in the Australian Public Service, she did not know whether she was sufficiently reliable. As she said she believed she was always going to have difficulties being hypervigilant, with memory problems, having a lack of trust about workplaces, and an expectation that problems will recur, and she conceded that she has become unnecessarily aggressive.
Comcare referred to matters which may have contributed to Ms Rand’s condition as:
· Reported ongoing pain and discomfort
· A change in your husband’s employment circumstances
· Your husband being diagnosed with a degenerative condition
· A desire to live in town rather than in an isolated area
· An unreliable car.
In summary there were a number of other activities or circumstances unrelated to her employment which also impacted on Ms Rand’s psychological well-being. The Tribunal considers that while Ms Rand experienced undoubted stressors in her workplace, these were frequently attributed to her consistent difficulties with supervisors, suggesting Ms Rand had problems dealing with those in authority. In addition, her health was equally affected by many other stressors, including chronic pain from a non-work-related car accident, the pain she experienced prior to her operation in 2010, financial concerns about the farm, concern about the rearing of her son, and managing her teenage nephew who was living with her. She had difficulties in her relationship with those closest to her, namely, her mother, her sister and her husband. She acknowledged that she had always had a quick temper and became frustrated easily with others around her be they family or workmates, a frustration which at times was expressed physically.
The Tribunal acknowledges that there was some improvement in some of these matters over the period, and in particular, while she was working at the Authority. Her nephew no longer lives with her, although it is not clear when he moved; Ms Rand’s relationship with her mother improved from the low point when she assaulted her mother in December 2004 once her mother moved into a separate dwelling on the property. At the same time, her mother’s cognitive abilities deteriorated, which the Tribunal infers has increased the demands on Ms Rand. In addition, the degenerative disease and resignation of her husband have added to her domestic pressures. These issues together with her own chronic back condition, and her psychiatric disorder, have had a stressful and deleterious impact on her functioning in both the workplace and outside it.
Dr Tym said work-related stressors amounted to 51 per cent of the pressures which contributed to Ms Rand’s psychiatric condition. He gave no reasoning to support this very precise figure, and he was not called to give evidence. We do not accept his opinion on this question. Activities in Ms Rand’s domestic life and other non-employment-related health matters including her back condition and her other problems were significant factors impacting on her psychological health.
In summary, the evidence of other medical specialists, and of those in her workplaces, satisfies the Tribunal that aside from a period in 2000 and 2002, a period which was then followed by one in which work concerns diminished, Ms Rand’s employment by the Authority did not contribute to a material/significant degree to Ms Rand’s condition, and we so find.
Rather, the Tribunal considers that the history of Ms Rand’s predisposition to depressive disorders, and underlying personality traits, pressures from non-work-related health, family, and financial matters have been other activities and other health-related matters that have contributed significantly to the psychological distress she has experienced post 2002, and particularly while at the Authority.
In summary the Tribunal’s finding is that Ms Rand has an adjustment disorder with mixed anxiety with depressed mood, the condition occurs periodically, but was not aggravated by her employment at the Authority. Her employment with the agency did make a material/significant contribution to her adjustment disorder. The Tribunal’s findings are that after she left the agency her employment made some contribution to her condition, however, the contribution did not reach the evaluative threshold necessary for liability to arise.
The decision under review is affirmed.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Dr B Hughson, Member ......................................[sgd]..................................
Associate
Dated 19 August 2013
Dates of hearing 3 and 4 June 2013 Counsel for the Applicant Mr Leo Grey Advocate for the Applicant Mr Nigel Gabbedy Solicitors for the Applicant Pappas J Attorney Counsel for the Respondent Mr Ben Dube Advocate for the Respondent Mr Luke Woolley Solicitors for the Respondent Sparke Helmore Lawyers
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