Saffioti and Comcare (Compensation) - [2020] AATA 691

Saffioti and Comcare (Compensation) [2020] AATA 691 (30 March 2020)
Division:GENERAL DIVISION
File Number: 2017/5586
Re:Victoria Saffioti
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan
Date:30 March 2020
Place:Canberra

The decision under review is affirmed.
........................................................................
Senior Member D O'Donovan
WORKERS COMPENSATION – delusional disorder – whether the disorder is an injury or a disease – characterisation of delusional disorder as a mental injury in the ordinary sense not made out – whether employment contributed to a significant degree – whether workplace stress can unmask a delusional disorder – whether workplace stress did unmask a delusional disorder – workplace events with no foundation in reality - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14
Comcare v Canute (2005) 148 FCR 232
Comcare v Power [2015] FCA 1502
Emi (Australia) Ltd v Bes (1970) 2 NSWLR 238
Hume Steel Ltd v Peart (1947) 75 CLR 242
Jones v Dunkel [1959] 101 CLR 298
McDonald v Director-General of Social Security [1984] FCA 57
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) 256 FCR 65
Tisdall v Webber (2011) 193 FCR 260
Treloar v Australian Telecommunications Commission [1990] FCA 511
REASONS FOR DECISION
Senior Member D O'Donovan
30 March 2020
INTRODUCTION

The applicant is a long term employee of the Department of Defence. In early 2014 her mental health deteriorated and she began reporting unusual events (including events in her workplace) to her General Practitioner (GP). It is now clear that those events did not occur and the applicant was (and still is) suffering from a delusional illness.
The delusions became worse over time. The psychiatrists who have examined her agree that she is suffering from a delusional disorder. A condition of this kind results in significant misperception of what is occurring and includes forming the belief that events are occurring which have no foundation in reality. Misperception of this kind is a manifestation of the illness. In the applicant’s case her beliefs included the belief that other staff members were secretly collecting information about her and somehow listening to private conversations she was having at home.
The applicant has made a claim for compensation in relation to her delusional disorder. To date, Comcare has not accepted that it is liable to pay compensation.
The applicant accepts that it is not enough to establish that many of the delusions from which she suffers are focussed on the workplace. The applicant’s case rests on a different proposition. She contends that it was her long term exposure to work which she found stressful which unmasked her delusional illness. It is on this basis that the applicant says her delusional disorder is compensable.
The applicant contends that her condition is an ailment contributed to to a significant degree by her employment and therefore meets the statutory definition of an injury in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The applicant also contends that her delusional disorder…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Saffioti and Comcare (Compensation) [2020] AATA 691
Case: [2020] AATA 691
Decision Date: 30 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms Saffioti, against a decision by Comcare to deny her claim for compensation. The applicant had commenced employment with the Department of Defence in 2001 and, by 2008, her role involved increasingly demanding purchasing duties. While there was contemporaneous evidence supporting the applicant's assertion of high workloads and staff shortages between 2008 and 2012, and the respondent accepted she worked long hours, the central dispute was whether these workplace conditions caused or contributed to her subsequent delusional disorder. The applicant claimed she experienced significant stress, burnout, and anxiety due to her workload, which she alleged unmasked her condition. Comcare, however, disputed that workplace stress was the cause. The decision was made by Senior Member D O'Donovan.

The primary legal issue before the Tribunal was whether the applicant's delusional disorder was an ailment that was contributed to, to a significant degree, by her employment. This required the Tribunal to determine if the workplace stress experienced by the applicant between 2011 and 2013 was an instigator or played a role in unmasking her condition, or if the condition was of a different origin. A significant challenge in assessing the evidence was the applicant's delusional disorder itself, which affected her recollection of events, leading her to recall and report occurrences that the Tribunal was satisfied did not happen.

The Tribunal approached the applicant's descriptions of her emotional states with caution, particularly where they were not corroborated by contemporaneous documents and emerged only after her condition deteriorated. The Tribunal found that the applicant's delusional disorder had the consequence of distorting her memory and reporting of events. Crucially, the Tribunal noted that the applicant's condition emerged not during periods of intense work, but following an extended period of leave and after a Christmas break, in February 2014. In the absence of a temporal connection between workplace stress and the onset of her illness, the Tribunal was not satisfied that the workplace stress experienced between 2011 and 2013 was an instigator or played any role in unmasking her condition. The Tribunal concluded that the applicant's delusional disorder was constitutional in origin and not contributed to, to a significant degree, by her employment.

Accordingly, the Tribunal affirmed the decision under review, finding that workplace stress did not play a role in triggering the applicant's delusional disorder.

Orders

Orders of the court

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Background

Background to the litigation

For these reasons, I approach the applicant’s descriptions of her emotional states at various times prior to the onset of her illness with considerable caution. If the description of the applicant’s emotional state is not corroborated by contemporaneous documents and emerges for the first time after her condition deteriorated in 2014, the fact that the applicant gives that evidence is not sufficient to satisfy me that it was the case. FACTS Set out below are my findings of fact. Where those findings could be controversial I have identified the evidence on which the findings are based. In this section I do not address the critical question of whether the applicant was suffering from stress prior to the onset of her psychotic illness. The more refined findings I make on that question are set out at paragraph [65] to [77] below. The applicant was born in 1962. She commenced employment with the Department of Defence on 14 June 2001. At the time she commenced employment with the Department she was fit and well. She worked initially in naval stores at HMAS Albatross but in 2003 transferred to the position of Administrative Support Officer in the Garrison Support Contract Management Office (CMO) with various periods as a Contract Liaison Officer on higher duties. Initially the applicant found the work enjoyable and she coped well. On the applicant’s account (which is not seriously contested), in 2004 and 2005 her role began to include increasing amounts of purchasing including purchasing furniture for accommodation on the base. Work duties further increased and intensified from 2008 through to 2012 due to changes in, and the funding of, the purchasing arrangements at the base.[21] There is contemporaneous evidence supporting high workloads and staff shortages in this period. [21] Exhibit A4, at [21] – [28]. Examples of material which support this finding include:(a)an email dated 12 April 2012 noting that:The movement of assets around Shoalhaven is a problem as there is no established mechanism. This creates a significant amount of additional work for [the applicant].[22] (b)an email dated 5 October 2012 where the applicant indicated there were issues at work and they required more support staff and resources urgently.[23][22] Exhibit A6.[23] Ibid. In particular the applicant’s mid-cycle review dated 28 February 2012 states that the applicant worked ‘during particularly challenging times brought about through high workloads and staff shortages’. [24][24] Exhibit A5, 4. The respondent accepts that the applicant was subject to a significant workload and worked long hours. What it does not accept is that, as a consequence of these things, the applicant was subjected to prolonged stress which was capable of unmasking a delusional disorder. The applicant gave evidence that by 2012 she felt overworked, burnt out, stressed and anxious.[25] The applicant concedes that she did not seek medical attention about this at the time or report her mental state in those terms prior to 2014.[25] Ibid, at [47].

Evidence

Evidence Before The Court

For the reasons explained below, I am not satisfied that the applicant has established that it was workplace stress which unmasked her delusional disorder. Accordingly, the decision under review is affirmed.THE EVIDENCE BEFORE THE TRIBUNAL The evidence before the Tribunal consisted of:(a)Tribunal Documents (T), Supplementary Tribunal Documents (ST) and Further Supplementary Tribunal Documents (SST) filed by the respondent;(b)Report of Ms Helen Rutland dated 2 February 2017;[1][1] Exhibit A1.(c)Report of Associate Professor Michael Robertson dated 18 April 2016;[2][2] Exhibit A2.(d)Report of Dr Anne Marie Rees dated 16 February 2015;[3][3] Exhibit A3.(e)Witness Statement of the Applicant dated 11 July 2018;[4][4] Exhibit A4.(f)Performance Development Agreement for the period September 2011 to August 2012;[5][5] Exhibit A5.(g)Email chain correspondence from Mr Waterworth;[6][6] Ibid.(h)Email chain correspondence from Ms Robinson;[7][7] Ibid.(i)Input from Applicant to Mr Waterworth;[8][8] Ibid.(j)Email chain correspondence from Ms Clarke and Ms Priest;[9][9] Ibid.(k)Email correspondence from Mr Thurley dated 12 April 2012;[10](l)Email chain correspondence between Applicant and Mr Waterworth dated 5 October 2012;[11](m)Email chain correspondence between Ms Priest and Mr Gibbons dated 21 January 2014;[12](n)Email from Applicant to Mr Bouwman dated 19 February 2010 (partially redacted) and attachments totalling 9 pages;[13](o)Statement of Agreed Facts;[14](p)Document titled ‘Saffioti and Comcare 2017/5586 – Brief for Associate Professor Robertson and Dr Champion – Concurrent Evidence’ as completed by Associate Professor Robertson and agreed by Dr Champion;[15](q)Report of Dr John Champion dated 12 April 2018 and briefing letter to the doctor dated 4 April 2018;[16](r)Witness Statement of Mr Dunlop dated 4 February 2019;[17](s)Respondent’s Tender Bundle of summonsed material;[18] and(t)Email from Ms Scriva to Dr Champion dated 17 October 2019.[19] [10] Exhibit A6.[11] Ibid.[12] Ibid.[13] Exhibit A6 and Exhibit A7. [14] Exhibit J1.[15] Exhibit J2.[16] Exhibit R1.[17] Exhibit R2.[18] Exhibit R3.[19] Exhibit R4. In addition, during the course of the hearing the Tribunal heard oral evidence from the applicant and two psychiatrists, Associate Professor Robertson and Dr Champion. Before setting out my findings of fact and the evidence on which it is based, I do want to record the particular difficulties which arise in analysing the evidence in this matter as a consequence of the applicant’s delusional disorder. I am satisfied that, notwithstanding her best efforts to give a genuine account of past events as she remembers them, both to the Tribunal and to various medical practitioners over the years, the applicant’s condition has the consequence that she remembers things and has reported on events that I am satisfied did not happen. For example, the applicant has given evidence that:(a)she was deliberately gassed in her workplace;(b)she overheard work colleagues engaging in conversations about their plans to surreptitiously compile information about her; and(c)she overheard her colleagues having conversations about things which she had said at home.I am satisfied that none of these things actually occurred. These memories are the product of her delusional disorder. Consistent with this finding, prior to the hearing of the matter, the parties filed an Agreed Statement of Facts where the applicant and respondent agreed that the applicant genuinely perceived particular events but none of these events in fact occurred.[20] [20] Exhibit, J1.

Decision

Reasons for decision

Importantly, the applicant’s condition emerged, not when the she was undertaking long hours at work, but following an extended period away from the office on annual and other leave and after the Christmas break. In the absence of a temporal connection between work stress and the onset of the applicant’s illness (which I am satisfied emerged in February 2014), I am not satisfied that the workplace stress experienced between 2011 and 2013 was an instigator of the applicant’s condition or played even a small role in unmasking her condition. DECISION I am therefore satisfied that workplace stress did not play a role in triggering the applicant’s delusional disorder. The condition from which the applicant suffers is constitutional in origin. I am not satisfied that the applicant’s delusional disorder is an ailment contributed to, to a significant degree by her employment. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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