Re Clement and Comcare
[2010] AATA 296
•23 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 296
ADMINISTRATIVE APPEALS TRIBUNAL )
) A200600055
) A200600157
) 2008/1878
) 2008/1879
) 2008/1880
) 2008/2746
) 2008/3046
) 2009/1247
) 2009/1248
) 2009/4524
) 2009/5084
GENERAL ADMINISTRATIVE DIVISION ) Re KRISTINE CLEMENT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr M. Miller AO, MemberDate23 April 2010
PlaceCanberra
Decision The decisions under review are affirmed.
.................[sgd].....................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - accepted psychological injury - incapacity and medical treatment expenses claims - delusional disorder - previously accepted injury not supported by balance of present evidence - no entitlement to compensation for incapacity or medical treatment expenses - decisions affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 57
Comcare v Mooi (1996) 69 FCR 439
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Smith v Federal Commissioner of Taxation (1987) 164 CLR 513
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
O’Grady v Northern Queensland Company Limited (1990) 169 CLR 356
PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Briginshaw v Briginshaw (1938) 60 CLR 336
Jones v Dunkel (1959) 101 CLR 298
Weigand v Comcare (2002) 72 ALD 795
Comcare v Sahu-Kahn (2007) 156 FCR 536
Comcare v Canute (2005) 148 FCR 232
REASONS FOR DECISION
23 April 2010 Mr S. Webb, Member
Dr M. Miller AO, Member1.
Kristine Clement was employed by the Australian Bureau of Statistics (ABS). In the course of her employment in the Foreign Trade Section of the ABS she reported on data security issues. She asserts that her supervisors reacted badly to flaws she discovered in the data security system and that she was harassed and bullied as a result. She lodged a claim for compensation relating to a psychological injury.[1] Comcare accepted the claim and paid compensation.[2] Subsequently,
Ms Clement’s employment with the ABS came to an end and her compensation payments ceased. Many years passed. Ms Clement made further claims for payment of compensation for incapacity and medical treatment expenses in relation to her accepted injury. Each of these 11 claims was rejected. Ms Clement is unhappy with this result and has applied for review.
[1] T9.
[2] T25; T65 and T66 refers.
2. The issues for determination are:
(a)was Ms Clement incapacitated for work as a result of the psychological injury during any relevant period, and
(b)did she incur costs for medical treatment during any such period in relation to the injury?
If those questions are answered in the affirmative, Ms Clement will be entitled to compensation.
3. As will appear, even though Comcare accepted liability for the psychological injury Ms Clement claimed, the main issue of dispute is whether Ms Clement suffered an injury.
4.
Ms Clement gave long and detailed evidence about the circumstances in which she says she was injured in her former employment. She tendered many documents in support of her claims.[3] Essentially, and without intending to over-simplify her case, Ms Clement says that she discovered data security problems in the Foreign Trade Section of the ABS where she worked as a database administrator.[4] She prepared a paper on ADABAS and RACF security[5] which was mentioned in a section meeting on 22 January 1991[6] and was provided to her supervisor, Ms Margaret Krischock. Ms Clement asserts that her report was not well received and she was removed from her position as of 3 September 1991; she lodged an incident report form and claimed compensation.[7] She told us that
Ms Elizabeth Tarchalska took over the role and completed the security review, confirming what Ms Clement had reported earlier.[8] This, she says, was subsequently confirmed by Ms Krischock and Mr David Ashman.[9]
[3][4] Exhibits A1 and A2 refer.
[5] T189 folios 491-496.
[6] T189 folios 510 refers.
[7] T8 and T9.
[8] Exhibit A3.
[9] Exhibits A6, A7 and A8.
5.
Ms Clement says that her Director at the time, Mr Bob McColl, behaved badly towards her and she raised a number of grievances about the way in which she was treated.[10] She asserts that her ABS managers conspired against her in order to remove her from employment. Ms Krischock, Mr McColl and others refute this.[11]
The matter was investigated by the Auditor-General[12] and the Merit Protection and Review Agency (MPRA).[13] Ms Clement says that these agencies found in her favour and confirmed that she was badly treated. In her submission these facts and the evidence of her treating doctors at the time, including Dr Anna Ostberg and
Dr Nancy Griffiths, general practitioners, and Ms Adrienne Huber, a psychologist, clearly indicate that she was injured at work.[14]
[10] T12, T13 and T19 refer.
[11] T23, T24, T34, Exhibit A4 and Exhibit A5 refer, for example.
[12] Exhibit A31.
[13] T51, T54 and T55.
[14] T17, T35, T70, T74, T78, T81, T86, T93, T98, T117, T129, T141, T147, T163, T174 and T179.
6.
In Ms Clement’s submission information about a motor vehicle accident in 1987 in which she received a head injury was misused by Mr Stephen A. Medza and ABS employees, breaching her privacy; about which she complained to the Privacy Commissioner.[15] She asserts that her head injury did not cause any subsequent difficulties or cognitive impairments and it is simply irrelevant to her claimed injury
in 1991.[16]
[15] Exhibits A9, A11 and A14 refer.
[16] Exhibit A17.
7. Ms Clement asserts that she was keen to return to work after the injury in September 1991, and she did so with a rehabilitation program,[17] but the rehabilitation program was not satisfactory:[18] Ms Clement complained about alleged breaches of her privacy and a psychological report by Ms Katalin Gorgenyi in the context of her rehabilitation plan.[19] She asked Comcare to reconsider the decision to appoint Health Access Pty Ltd as her rehabilitation service provider.[20] Subsequently, the ABS decided to close Ms Clement’s rehabilitation case management plan and further disputation arose.[21] Ms Clement’s says that she was directed to the Constant Prices Section but she was not allocated a position or meaningful duties and was isolated from other staff.[22] In Ms Clement’s submission her rehabilitation case management plan was illegally suspended and remains open, providing a lawful basis to her claim for ongoing compensation.
[17] T11, T67, T68, T69, T70, T72, T73, T76 and T77 refer.
[18] T79, T80 and T82 refer.
[19] T189 folio 487 refers, for example; T189 folio 521.
[20] T78; T80 and T81 refer.
[21] T83-T100, T103, T108, T109, T116-T118, T123, T128 and T129 refer.
[22] T31, T38 and T39 refer, for example.
8. Ms Clement asserts that Comcare acted illegally requiring her to be assessed by psychiatrists who were not properly registered in the Australian Capital Territory or had been struck off in another jurisdiction. She asserts that Comcare exceeded its powers under section 57 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and inappropriately and illegally decided to suspend her compensation entitlements.[23] In Ms Clement’s submission the suspension of her compensation entitlements forced her into a difficult financial position as a result of which she was pressured to accept an offer of redundancy, which she did.[24] Ms Clement asserts that the redundancy was not truly voluntary and it was not reasonable in the circumstances; it is no bar to her entitlement to payment of compensation.
[23] T104-T107, T111-T115, T119-T128, T130-T163 refer.
[24] T171-T185 refer.
9. With regard to the nature of her injury, Ms Clement says that she suffered from a reactive depression that was induced by work-stress. She asserts that she was psychologically well throughout her life prior to the events of 1991 in the context of her employment. In her submission, the concerns she expressed then and subsequently, and today, are based in fact and relate to her discovery and reporting of data security breaches at the ABS. Ms Clement rejects the proposition that her concerns are delusional and she rejects the medical evidence that she suffers from a Delusional Disorder that is not related to the events she has described in her employment; in her submission it is simply inconceivable when one considers the findings of the Auditor-General, the MPRA and the contemporaneous medical evidence.
10. She asserts that the conclusions of Mr Peter Grills and others concerning her claim for an act of grace payment do not serve to disentitle her to compensation. On the contrary, Ms Clement says that the materials to which Mr Grills had regard supports her case.[25]
[25] Exhibit A32.
11. Thus, in sum, Ms Clement says that she is entitled to compensation for incapacity and for medical treatment in relation to her injury. In her submission Comcare was correct to accept liability, and she notes that this was done despite the best efforts of the ABS to overturn that decision. Nevertheless, Ms Clement says that the ABS and Comcare acted illegally to stop her entitlement to rehabilitation and to compensation in the circumstances pertaining to the cessation of her employment. This, she says, was wrong and should be rectified by reinstating her compensation payments from 1994 to the present.
12. As will appear, we do not agree.
13. In order to determine Ms Clement’s entitlement to compensation we must be reasonably satisfied that her claimed incapacity resulted from an injury and medical treatment expenses were for medical treatment she obtained in relation to an injury. The word ‘injury’ is given special meaning by subsection 4(1) of the Act: an injury includes a ‘disease’ or the aggravation of a disease, being an ‘ailment’ that was contributed to in a material degree by the relevant employment. An ailment includes any mental ailment, disorder, defect or morbid condition. For the purposes of the Act, an ailment has been taken to mean “a condition that is outside the boundaries of normal mental functioning and behaviour”.[26]
[26] Comcare v Mooi (1996) 69 FCR 439 at 443-444.
14. We note in passing that the original acceptance of liability under section 14 of the Act remains operative and in force. This does not, however, preclude us from making factual findings for the purposes of section 16 or Part II Division 3 of the Act that may be inconsistent with or ‘undercut’ the factual findings that led to the earlier section 14 determination.[27]
[27] Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 at [57]-[59].
15.
The injury in this case is said to be “work related stress” that occurred on
4 September 1991: the injury for which Comcare accepted liability on 31 January 1992 and subsequently described as “work related stress induced reactive depression”.[28] For present purposes and on the present evidence, we must determine on the reasonable satisfaction standard whether Ms Clement suffered a compensable injury of the kind or in the manner alleged and previously accepted by Comcare. If so, it is then necessary to determine whether the incapacity for work
Ms Clement has claimed is ‘as a result of’ that injury. The phrase ‘as a result of’ imports a concept of causation that is well understood in the law. It refers to an operative cause that is not confined to the immediate proximate cause of incapacity and imports a test of causal connection that requires a commonsense evaluation of the causal chain between the claimed incapacity and the injury.[29] Furthermore, it can be accepted, and it is well established law, that the particular formulation ‘as a result of’ does not impose a sole cause test. The phrase ‘in relation to’ that is used in subsection 16(1) imports a relational rather than a causal test: the phrase simply signifies that there is some connection between two matters.[30] The relational connection to be established in the present case is between the medical treatment Ms Clement obtained and the injury for which Comcare accepted liability. The particular connection required is a matter of degree.[31] The closeness of the relational connection must be ascertained “by reference to the nature and purpose of the provision in question and the context in which it appears”.[32] The Act is beneficial in nature and the formulation is to be given a wide interpretation that is consistent with the compensation scheme for injured employees the Act provides. In that context, under section 16 the liability to pay compensation for medical treatment is not confined to treatment ‘of’ or ‘for’ an injury, but extends to treatment ‘in relation to’
an injury.
[28] T25; T65 and T66.
[29] Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
[30] Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 at 533; Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 487.
[31] O’Grady v Northern Queensland Company Limited (1990) 169 CLR 356 at para 10.
[32] PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313.
16. These tests of cause and relationship are to be determined as a matter of probability, applying the reasonable satisfaction civil standard; mere possibility is not sufficient, even if the possibility is real rather than fanciful. Reasonable satisfaction should not result from indefinite evidence or indirect inferences.[33] The balance of probabilities test does not authorise us to choose between guesses, on the ground that one guess seems more likely than another.[34]
[33] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.
[34] Jones v Dunkel (1959) 101 CLR 298 at 305.
17.
Applying these tests and for reasons that follow, we are reasonably satisfied that Ms Clement is not entitled to compensation for incapacity and she is not entitled to payment of medical treatment costs during any of the periods under claim. As it appears to us on the present evidence, Ms Clement either did not suffer an injury
in 1991 as she alleges, or, if she did, it was in the form of a temporary aggravation that soon came to an end.
18. As we have said, for a compensable injury to have occurred it must be established that Ms Clement suffered from a condition that is outside the boundaries of normal mental functioning and behaviour, and issues of diagnosis arise to which we will return, and it must also be established that such condition was contributed to in a material degree by the relevant employment. We are reasonably satisfied and find that:
(a)Ms Clement suffers from a Delusional Disorder;
(b)the Delusional Disorder was present and operative prior to September 1991 and persists presently;
(c)the perceptions and beliefs Ms Clement held (and holds) in relation to her discovery of data security issues in March 1991, especially concerning fears for her safety and the significance of her ‘discovery’, are not based in fact and are delusional;
(d)these perceptions and beliefs were the products of disease: they focused on events in the employment but were not produced or materially contributed to by those events; and
(e)
the aetiology and causes of Ms Clement’s Delusional Disorder are simply unknown – it is possible that the condition has a constitutional basis, it is possible that it arose as a result of the head injury
Ms Clement sustained in a motor vehicle accident in 1987, it is possible that events in her workplace added their measure and played a causal role, but none of these possibilities emerge from opaque uncertainty into the relative light of probability on the present evidence.
diagnosis
19.
We accept the evidence of Dr Skinner, Dr Tym and Dr Saboisky concerning the diagnosis of Ms Clement’s disorder. We note that a disorder of this kind may be productive of symptoms of depression and anxiety, as in Ms Clement’s case. Furthermore, we accept that diagnosing a Delusional Disorder is a matter attended by some difficulty; the very features of the disorder include non-bizarre delusions that persist for more than one month and behaviour that is not obviously odd or bizarre.[35] Thus, the formulation of such a diagnosis requires not only a high level of psychiatric expertise, but also information concerning the person’s psychosocial functioning, beliefs and, importantly, sufficient material to properly determine whether the beliefs are delusional. We are satisfied that Dr Robert Tym, in particular, but also Dr Yvonne Skinner and Dr John Saboisky are suitably qualified and had access to sufficient information to make a properly formed diagnosis. For reasons that follow their evidence carries greater weight than the evidence of DrLucas, Dr Gertler,
Dr Merrifield, Dr Heathershaw, Mr Bilboe, Ms Huber, Ms Fox, Ms Jubb, Dr Ostberg, Dr Griffiths and Dr Watson.
[35] Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision, pp323-324.
20.
In his report dated 5 October 2006 Dr William E. Lucas, a consultant psychiatrist, diagnosed “quite severe dysthymia with a differential diagnosis of major depression” and observed that Ms Clement “has fixated ideas which recently have been considered evidence of a delusional disorder but I remain uncertain whether this is the diagnosis”.[36] The doctor reported that “it is difficult to assess whether these beliefs [of being persecuted and victimised] were delusional in origin… there is a paranoid aspect to what she has said and written and I think the question of delusional disorder, psychotic condition, is difficult to settle”.[37] As can be seen,
Dr Lucas was uncertain about forming a diagnosis of delusional disorder. Nevertheless, Dr Lucas observed that to some extent his views coincided with the views of Dr Tym. We note that Dr Lucas did not have access to the large volume of documents, including those tendered by Ms Clement that bear upon the question whether her beliefs and perceptions are delusional.
[36] T298 folio 823.
[37] T298 folio 823.
21.
On 6 August 2009 Dr Robert Gertler, a consultant psychiatrist, reported that
Ms Clement was suffering from a “chronic adjustment disorder with depressed mood” and observed that “the chronic depression which she suffers is inconsistent with [a primary delusional disorder]”.[38] In his oral evidence, however, Dr Gertler agreed that if it is established that Ms Clement experienced non-bizarre delusions prior to the onset of symptoms of depression, then the correct diagnosis would be delusional disorder. As we are reasonably satisfied that Ms Clement did experience non-bizarre delusions prior to the onset of such symptoms, Dr Gertler’s oral evidence lends weight to support a diagnosis of Delusional Disorder.
[38] Exhibit R4, p7.
22.
Dr Alan Merrifield, a consultant psychiatrist, and Dr J.B. Heathershaw, a Senior Medical Officer of the Australian Government Health Service were involved in Ms Clement’s case in January 1992. On 13 January 1992 Dr Merrifield reported
“no evidence of cognitive deterioration”, “some evidence of tension” that was “within normal limits” and “no evidence of neurosis or psychosis”. Dr Merrifield noted, however, that he had only “heard [Ms Clement’s] story and [he had] no information to support the allegations of deterioration of work performance since the accident”.[39]
Dr Heathershaw reported that examination of Ms Clement:
Revealed a tense and easily upset woman who became weepy at times. There was considerable pressure of words but no evidence of major psychiatric disorder. Mental state examination was normal and I could not detect any significant cognitive deficit.[40]
[39] T34 folio 66.
[40] T34 folio 62.
23.
Ms Huber, a clinical psychologist, was involved in Ms Clement’s case at this time. Ms Huber conducted a number of psychological tests on Ms Clement on
31 October 1991 and 24 February 1992 and reported that:
There is no evidence of intellectual degeneration or psychiatric pathology. Kristine is a highly intelligent woman whose performance is in the average to above average range despite a high level of anxiety. Her level of anxiety is concomitant with her current work situation.[41]
[41] T117 folio 284.
On 2 April 1993 Ms Huber rejected Ms Gorgenyi’s observation concerning “a strong paranoid connotative tendency”[42] in Ms Clement, reporting that “My observations and assessment do not include the manifestation of paranoia”.[43]
[42] T189 folio 521.
[43] T81 folios 220-221.
24. As can be seen, Ms Huber’s assessments are reasonably consistent with the contemporaneous assessments of Dr Merrifield and Dr Heathershaw, who reported no cognitive impairment, neurosis or psychosis in Ms Clement at the time. The fact that these doctors did not diagnose a psychiatric illness and Ms Huber did not detect any psychpathology points to one of two conclusions: either Ms Clement was mentally well at this time, or there was a present disorder that was not detected at the time. We are persuaded to the latter conclusion. Ms Clement’s evidence is that she did not inform doctors about her fears for her safety and other perceptions at the time. Without such information it is perhaps not surprising that Ms Huber focussed her attentions on Ms Clement’s complaints of poor treatment at work without identifying any psychopathology, and Dr Merrifield and Dr Heathershaw did not diagnose a psychiatric illness. The subsequent psychiatric evidence of Drs Tym, Skinner, Saboisky, Lucas and Gertler, each of whom had access to additional relevant evidence, albeit in varying degrees, clearly identifies the presence of psychiatric illness at or about this time.
25. Ms Clement’s evidence concerning her perceptions and beliefs in relation to events in her employment in 1991, particularly from March 1991, indicates the presence of non-bizarre, plausible, delusions on a theme, in which the significance and implications of the data security issues she identified were inflated in a grandiose manner without reasonable or factual basis. When one considers the evidence of Ms Clement’s past supervisors concerning her inter-personal relations at work and her performance over the period from April 1988 to September 1991,[44] and noting the remarks of the MPRA concerning the probative value of some of this material,[45] a consistent picture emerges which Ms Clement does not accept and strenuously opposes. Nevertheless, the reports of Ms Clement’s supervisors concerning her behaviour and performance in the workplace cannot simply be ruled out because Ms Clement does not agree with them or because they were found to be of little probative value or relevance “for assessment of an officer’s current efficiency”.[46] Her disapproval, we note, is concordant with her perception of being persecuted by senior ABS officers as a result of her discoveries concerning data security. On balance, we are compelled to conclude that the supervisor reports are in all likelihood correct and Ms Clement’s perceptions are the product of disease.
[44] T34 folios 68-74; T34 folios 59-61.
[45] T51 folios 167-168.
[46] T51 folio 168.
26. On 7 September 2006 Mr Harold Bilboe, a senior psychologist with Dysaran Consulting Pty Ltd, reported an Axis 1 diagnosis of Post Traumatic Stress Disorder and an Axis 2 diagnosis of Personality Disorder NOS (Mixed Personality Disorder with Paranoid and Avoidant Features).[47] Mr Bilboe was of the opinion that “there is a correlation between the events perceived on the part of Ms Clement of 1991-1994 and Ms Clement’s current presentation, and paranoid personality”.[48] With regard to Mr Bilboe’s diagnosis and the Diagnostic and Statistical Manual for Mental Disorders (Fourth Edition, Text Revision) (DSM-IV-TR) we are not satisfied that Ms Clement satisfies the diagnostic criteria, and specifically the first diagnostic criterion, for Post Traumatic Stress Disorder.[49] While Ms Clement complained about threats to her life, there is no evidentiary basis to support her beliefs or perceptions in this regard in actuality. Furthermore we note that initially Dr Tym diagnosed Post Mental Trauma Dysthymic Disorder,[50] but subsequently changed his diagnosis to Delusional Disorder.[51] Dr Skinner and Dr Lucas did not agree with Mr Bilboe’s diagnosis.[52]
[47] T296 folios 796-799.
[48] T296 folio 801.
[49] Diagnostic and Statistical Manual for Mental Disorders, 4th Edition, Text Revision, pp463-468.
[50] T194 folio 571 and T226 folio 646.
[51] T245 folio 678.
[52] T297 folio 811 and T298 folio 822 respectively.
27.
Ms Laura Fox treated Ms Clement for a time in 2004 and diagnosed “longstanding depression relating to past work experiences which have been unresolved”.[53] Ms Annemarie Jubb, a psychologist, treated Ms Clement from
26 May 2005. She conducted psychological testing and reported elevated levels of anxiety, depression, fear of persecution and stress, which she considered to indicate severe impairment. Ms Jubb stated that “It is possible that they relate to the previous experiences of the whistle blowing episodes”.[54] It is not clear whether Ms Fox or
Ms Jubb had access to sufficient factual material to properly evaluate or assess what they were told by Ms Clement. As we have said, Ms Clement reports a plausible scenario that may readily be accepted without access to all the relevant factual background. The interpretation of Ms Clement’s ‘T–Scores’ in the Personality Assessment Inventory administered by Ms Jubb, for example, would benefit from assessment against a detailed factual background; Ms Jubb described the relationship of these scores and impairments to past ‘whistle blowing’ experiences at the ABS as no more than a possibility, perhaps for this reason. Furthermore, we are reasonably satisfied that Ms Clement’s description of herself as a whistle blower is delusional. The available evidence does not support this proposition. As the Auditor-General found, there were deficiencies in the ABS data security arrangements at the time.[55] It is tolerably clear that this was known and understood by senior ABS officers prior to Ms Clement’s involvement and counter-measures were in place. The Foreign Trade Section data security review in which Ms Clement was involved in
January 1991 was part of a wider consideration of information technology and data security issues in the ABS in the context of the ABS 1988 IT Strategic Plan and the Protective Security Manual (2nd Edition) issued by the Government in 1990.[56] Even though the Auditor-General found deficiencies in a number of areas,[57] it appears that this process of planning and review had been on foot for a number of years,[58] at least from 1988 following alleged leaks of monthly balance of payments data which were investigated by the Australian Federal Police.[59]
[53] T225 folio 644.
[54] T268 folio 710.
[55] Exhibit A31, pvii.
[56] See T189 folio 509-512, T190 folio 555 for example
[57] See Exhibit A31, pp11-15, for example.
[58] A4, pp7-9.
[59] Auditor-General, Audit report No 2, 1993-1994, Exhibit A31, Appendix 2.
28.
Dr Ostberg, Dr Griffiths and Dr Tim Watson, general practitioners, treated
Ms Clement at various times and provided reports and a large number of medical certificates that are in evidence. Dr Watson gave oral evidence. In November 1991 Dr Ostberg reported that on 4 September 1991 Ms Clement had consulted her “in an extremely agitated and tearful condition” in relation to “a lot of stress at work due to a conflict of personalities between Ms Clement and her boss” that “culminated in an unexpected three hour meeting called at two hour’s notice on 3 September 1991” in which Ms Clement was “confronted with accusations of poor productivity, inefficiency and excessive sick leave”.[60] Dr Ostberg reported that Ms Clement had many somatic symptoms indicative of depression: “Mrs Clement complained of insomnia, waking in the early hours, difficulty in concentrating and a sense that everything was slipping away” – “her thoughts although laboured and slow in their expression were rational and coherent and concentrated on her persecution by senior staff”. The doctor diagnosed a work related stress induced reactive depression.[61] Dr Griffiths issued a number of medical certificates in relation to “work related stress” and on 25 July 1994 certified that “Kristine Clement will have no incapacity for work resulting from her stress condition after Aug 28 ’94”.[62] Dr Watson did not agree with this opinion and reported on 15 March 2005 that Ms Clement suffered from severe dysthymia –
a psychological injury in the ABS – and her “work related incapacity by all accounts began to impose itself in 1991 and has remained continuous since”.[63] There are two things to say about the evidence of Ms Clement’s treating general practitioners over time: the diagnosis of Delusional Disorder is attended by some difficulty and requires psychiatric expertise, and the diagnosis requires careful consideration of all relevant information. By Ms Clement’s own account, she did not inform her treating doctors about the extent of her concerns, including in relation to the perceived significance and implications of her discovery of data security deficiencies, at the time.
[60] T17 folio 32.
[61] T17, folio 32; T70 and T78 refer.
[62] T163 folio 352.
[63] T246 folio 681.
onset
29. With regard to the onset of the Delusional Disorder, it appears to us likely that the condition arose at some time prior to September 1991. We are reasonably satisfied that Ms Clement’s perceptions and beliefs over preceding months, especially her fears for her safety and her perceptions about the significance of the data security issues she discovered, are not based in fact: they are grandiose and strongly indicate the delusional nature of her disorder at that time. We so find.
30.
It is desirable to deal with these aspects of the case in some detail. It can be accepted that there were data security deficiencies in the ABS in 1991. It is also established that Ms Clement prepared a report into aspects of data security in the Foreign Trade Section in January 1991.[64] In that report she outlined her analysis of such deficiencies. Ms Krischock raised and annotated certain issues with the content of the report and subsequently left on maternity leave. Ms Clement interpreted these events differently. Ms Clement gave evidence that her report raised “a national security matter and I was extremely concerned that it be fixed immediately”, but
[64] T189 folios 491-496.
Ms Krischock did nothing and took sick leave.[65] Ms Clement says that took her report to the Director, Mr McColl, and informed him that “I had found the source of a leak that was from ABS. It was mentioned in Parliament in 1988, and when the balance of payments – there was unusual speculation on the – in the Australian currency…”.[66] On Ms Clement’s evidence Ms Krischock returned to work in May 1991 and responded to Ms Clement’s report by “asking me lots of questions, but nowhere in the – her response did she ask me to secure the data at all. And that was the obvious thing to do under the circumstances”.[67] It is clear enough from the ensuing evidence given by Ms Clement that she became very alarmed by this turn of events, especially as she was asked to contact the Australian Customs Service (Customs) in relation to some unit value data issues:
I thought, well, he, Bob McColl could not get anywhere with them, and she hadn’t either. So why were they telling me to contact Customs after I wrote that report? And I was pretty concerned about and shortly after that I got a phone call. My children rang me up at work and said I had a phone call from a shipping agent, and I rang the shipping agent from my desk at work and they said to me that there was a consignment on the dock for me. And I, you know, it struck the fear of God into me, actually, and I said there’d been a mistake because there was – I was expecting nothing. And I think that someone had thought that I might go along and claim that, and if I had of, I think I would’ve been jailed or – well, certainly arrested by the police or customs or both. But – so my concerns about customs were very sensible and real, because customs wasn’t the supplier of the data that was insecure at the bureau, and they were editing it which was actually illegal. And, well, Bob McColl and Margaret Krischock couldn’t stop them, and they were telling me that I should go and confront them over that and other things too.[68]
It is abundantly clear that Ms Clement had formed the opinion that:
…there was something going on at Customs, and something going on at the ABS. And I think what Margaret Krischock had done, was come up with a solution to stopping me from taking steps to get the data secured at the ABS. And a further alarming thing was that my director, Bob McColl, while Margaret Krischock was away again on sick leave due to one of my reports, she – he sent me a message to me through my acting supervisor, that I was to stop all work on security, you see. And this was really alarming and horrifying, because I strongly suspected what was on foot was criminal offences. And frankly, I didn’t want any part of any such awful thing, and so I was anxious that the situation be rectified.[69]
[65] Transcript, 1 February 2010, p36.
[66] Transcript, 1 February 2010, p36.
[67] Transcript, 1 February 2010, p37.
[68] Transcript, 1 February 2010, pp37-38.
[69] Transcript, 1 February 2010, p43.
Furthermore, Ms Clement was also “concerned that there may have – I didn’t have the exact mechanism at my fingertips but I thought that the speculation that happened with the currency in 1988 that people had all noticed. I thought that it was happening through the insecurity of the data at the ABS”.[70] She alleged that this was associated with alterations to the data definitions, mainframe ‘crashes’ and other data security issues that were the responsibility of the Computer Services Division of the ABS. As can be seen from the Transcript, Ms Clement linked many variables into her analysis, including the Reserve Bank Balance of Payments data,[71] the fall of the Greiner Government in New South Wales[72] and the Asian financial crisis.[73]
[70] Transcript, 1 February 2010, p39; 2 February 2010, pp80-85; and Exhibit A32 for example.
[71] Exhibits A16 and A33 refer.
[72] Transcript, 1 February 2010, p47.
[73] Transcript, 3 February 2010, p278-279
31.
It appears that prior to 31 January 1991 Ms Clement was agitating issues concerning problems she was experiencing at work, especially in relation to a request for a medical report, with the then Member for Canberra.[74] While the precise nature and content of her complaints at that time cannot readily be established,
it appears likely that this related to performance issues and perceptions of unfair treatment, possibly concerning the implications of her motor vehicle accident in December 1987. We cannot determine with any certainty whether the subject of this communication was predicated on delusional beliefs. All that can be said is that raising matters in this way, while a matter of right, is somewhat unusual and that, in itself, suggests the strength or intensity of the level of concern. If that is correct, it is possible that Ms Clement’s perceptions of persecution at work and a conspiracy against her may have an earlier genesis. Nevertheless, these matters remain opaque and cannot readily be determined on the present evidence from this distance.
[74] Exhibit A32, letter to Ms Clement from Ros Kelly, Member for Canberra, 31 January 1991.
32. We accept that by May 1991 Ms Clement had formed the belief that she was in serious danger of physical harm as a result of having uncovered criminal activity involving manipulation of currency markets, a New South Wales State Government election, National Accounts and Balance of Payments data and international financial markets, especially in Asia. By her own account this arose as a direct consequence of her discovery of data security deficiencies in the Foreign Trade Section of the ABS at the time.
33.
We are reasonably satisfied that these beliefs are delusional; there is a kernel of fact, but the extrapolated beliefs are not supported by fact or plausible evidence of any kind. We note that in May 2004 Peter Grills conducted an investigation into
Ms Clement’s claim for an act of grace payment arising out of related circumstances. Mr Grills reported:
In order for her proposition to be established, there needs to be evidence that supports the following underlying elements of it:
AThat Ms Clement “discovered” deficiencies in the IT security of the foreign trade statistics, which were serious, were not acted on, and which the ABS sought to conceal or maintain.
BThat there was a direct and demonstrable link between the submission of her report and subsequent ABS actions.
Having reviewed all the documentation, including all of Ms Clement’s recent and past writings on the subject, I found no evidence that supported either proposition, and substantial probative evidence to the contrary. In fact it is notable that in all of Ms Clement’s submissions she relies heavily on her own interpretation of issues, her assumptions as to motive and unsubstantiated assertions as to the facts.[75]
[75] T190 folio 555.
34. Mr Grills conclusion is consistent with our findings concerning these matters. Ms Clement’s interpretation of events is not supported by probative evidence and is not substantiated. We are reasonably satisfied that her perceptions and her interpretation of the events in employment in 1991 were and are delusional. It is for these reasons that we find that Ms Clement’s Delusional Disorder was present and operative in the context of her employment in early 1991.
causation
35.
The preponderance of the medical evidence concerning the aetiology of Delusional Disorder suggests that the causes of the Disorder are simply not known. As we have said, there are a number of possibilities: it is possible that the condition has a constitutional basis and arose by its very nature in mid-adulthood. On the evidence of Dr Skinner it is relatively common in the context of this Disorder to find it emerging in mid-life without apparent cause. Equally, it is possible that it arose as a result of the head injury Ms Clement sustained in a motor vehicle accident in 1987; we note that in October 1991 Mr Aherne reported changes in Ms Clement’s work performance on her return to work in 1988.[76] Similarly, it is possible that events in her workplace in 1991 added their measure to cause or accelerate or aggravate the Disorder. On the present evidence, however, none of these possibilities is established as a probability to the reasonable satisfaction standard. Even though
Dr Ostberg and Ms Huber thought that Ms Clement was experiencing work-related stress as a result of a conflict with her supervisors over a period of months preceding a meeting on 3 September 1991 in which Mr McColl raised a number of performance issues of concern, their evidence does not establish a work contribution to the progress of the Disorder.
[76] T34 folio 73.
36. There is no persuasive or compelling evidence before us that the Disorder is reactive to environmental stimulus, other than issues in the particular environment become the focus of delusional beliefs, as in Ms Clement’s case. We are reasonably satisfied that the issues concerning her ‘discovery’ of data security deficiencies became the focus or the subject of delusional beliefs. That is not to suggest that the ‘discovery’ caused the delusional beliefs, rather that the ‘discovery’ was the subject of delusional beliefs. We so find.
37. We also note that the MPRA made findings that the manner in which her performance issues were dealt with did not accord strictly with the appropriate procedures. It is possible that this failing on the part of the employer may have added weight and colour to Ms Clement’s beliefs, especially in relation to her perceptions about being persecuted and the existence of a criminal conspiracy, but that is far from clear. Does adding weight and colour to a delusional belief satisfy the material contribution test, especially in relation to the tests concerning the role of her perceptions concerning events in the workplace and the progress of her disease? Carefully considering what Von Doussa J said in Weigand v Comcare[77] it appears to us that the present evidence may allow a finding that Ms Clement formed a perception, however delusional, in relation to actual events in her workplace. But we are not able to conclude that the perception thus formed contributed in any material degree to the onset or progress of her already existing disorder. The material contribution required is one that is of significance in the circumstances, rising above the threshold beneath which a contribution may be disregarded.[78] It is possible that Ms Clement’s perceptions played some part in the progress of her disease and it is possible that subsequent events in her employment, especially the perceived conflict with her supervisors in September 1991, may have played some part in the formation of further perceptions, or, as we have found, those events added weight and colour to evolving delusions. But that does not mean that those further, or more weighty, or more colourful perceptions were material factors in the acceleration or aggravation of her disease. On the evidence of Dr Skinner, Dr Tym, Dr Saboisky and Dr Gertler we are reasonably satisfied that they were not.
[77] (2002) 72 ALD 795 at 31.
[78] Comcare v Sahu-Kahn (2007) 156 FCR 536; Comcare v Canute (2005) 148 FCR 232 at 247-249.
38. We can go no further on this point on the present evidence. But we note that Ms Clement’s condition continued to deteriorate over the ensuing months and years, with many new occurrences being subsumed into her belief structure. This extends to Comcare attempting to have her certified under the ACT Mental Health Act and having her watched by a lodger in her house; to concerns about the National Crime Authority and the Australian Security Intelligence Agency; beliefs that her present partner attempted to arranged to have her killed; and continuing beliefs that there is a conspiracy against her, to prevent her employment in the Australian Public Service.
conclusion
39. This is a very sad and difficult case. But, unfortunately for Ms Clement, we are not able to find any work-caused injury or incapacity at any time from 1994. Even though it can be accepted that Ms Clement may from time to time have suffered from incapacity for work in some degree, and she requires medical treatment for her Delusional Disorder, we are reasonably satisfied that her incapacity and the requirement for medical treatment does not arise from a compensable injury under the Act. It follows that the decisions under review must be affirmed.
40. Finally, in closing, it is appropriate to observe that Ms Clement raised issues concerning her rehabilitation program; she asserted that the program remained in force as it had been closed prematurely and illegally. It is not necessary for us to decide the first question concerning the consequential effects of any premature closure. In the absence of injury, there can be no entitlement to rehabilitation under the Act. Clearly enough Ms Clement objected to the service provider and sought reconsideration of that aspect of the determinations relating to her rehabilitation program. It appears that no such reconsideration eventuated. That matter is not on foot in these proceedings and the Tribunal has no jurisdiction in relation to it; it has not been raised or considered in any decision-making process at the primary or reconsideration stages in any of the matters Ms Clement has placed before the Tribunal.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: ...................[sgd].......................................................
J. Lakin, AssociateDate of Hearing 1, 2 & 3 February and 6 &7 April 2010
Date of Decision 23 April 2010
Advocate for Applicant Mr R. Howard-SmithCounsel for Respondent Mr B. Dube
Solicitor for the Respondent Australian Government Solicitor
See T189, for example, and documents filed by the Applicant on 1 June 2006, 21 July 2006,
31 October 2006, 29 November 2006, 14 October 2009, 18 February 2010 and
31 March 2010, including Applicant’s Statement of Facts and Contentions dated 2 November 2006, 24 November 2006, 14 February 2007 and 18 November 2009.
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