Shanley and Comcare
[2008] AATA 693
•7 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 693
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 200600066
GENERAL ADMINISTRATIVE DIVISION ) Re WENDY SHANLEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 7 August 2008
Place Canberra
Decision 1. The decision of Comcare made 7 March 2006 (ref.663568/04) is set aside.
2. In accordance with subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the matter is remitted to Comcare for reconsideration in accordance with these Reasons for Decision.
3. The costs of the proceedings before the Tribunal incurred by Ms Shanley shall be paid by Comcare.
..........signed............................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – cessation of compensation payments - whether Applicant incapacitated for work by accepted injury within given period – whether Respondent liable to compensate - decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
INTRODUCTION
4. Ms Shanley has requested a review of a decision by Comcare to cease paying her compensation for medical expenses and incapacity in respect of an injury she suffered as an employee of the Department of Health and Ageing. For the reasons which follow I have decided that this decision should be set aside. The matter will be remitted to Comcare to determine the medical expenses payable and the extent of the incapacity in the relevant period.
5. Unless otherwise stated the findings of fact in these reasons are made on the basis of the evidence of Ms Shanley. I am satisfied of the facts found on the balance of probabilities.
BACKGROUND
6. Ms Shanley started work with the Health Insurance Commission in 1998. In May 2003, whilst still employed by the Commission, she suffered an adjustment disorder which arose from her employment. In July 2003 she finished working for the Commission.
7. From 4 August 2003 until December 2003 Ms Shanley was employed by the Department. In September 2003 she suffered a further injury when her adjustment disorder was aggravated by her employment. In July 2004 Comcare accepted liability to compensate her for the injury, described as an “aggravation of adjustment reaction with mixed emotional features” which I shall refer to as “the injury”.[1] On 7 March 2006 Comcare decided that as at 1 November 2005 Ms Shanley was no longer incapacitated for work as a result of the injury. It is this decision which she seeks to have reviewed.
[1] T386.
ISSUE FOR DETERMINATION
8. The issue for determination is whether Ms Shanley has been incapacitated for work at any time between 1 November 2003 and the date of this decision as a result of the injury she suffered in September 2003 whilst employed by the Department. Liability to pay compensation for periods of incapacity for work is provided by section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
9. The parties have agreed that if I decide that Comcare is liable to compensate Ms Shanley pursuant to section 19 it is appropriate to remit the matter to Comcare to determine the extent of the incapacity. I propose to do this as I do not have sufficient evidence to make this determination. Since 1 November 2005 Ms Shanley has engaged in part-time employment and has received compensation payments under section 19 in respect of another injury.
10. It is not in dispute that the injury was suffered by Ms Shanley as a result of incidents which occurred at two meetings attended by her in September 2003 and her perception that she was not supported by her superior officer in relation to the events of these meetings and her induction into the Department. Ms Shanley believes that she was treated in an offensive and abusive manner by two fellow employees at these meetings and that her superior encouraged this. Apart from attending a meeting to discuss these issues Ms Shanley did not attend her workplace from the time of the September meetings until her employment with the Department ceased. Comcare compensated her for partial incapacity for work resulting from the injury until 1 November 2005.
MS SHANLEY’S CONTENTIONS
11. Ms Shanley says that since she suffered the injury she has been partially incapacitated for work as a result of it and that this situation has not changed. She says that she was employed in a senior management position within the Department and that the aggravation of her adjustment disorder in September 2003 continues to prevent her from returning to full-time work at the same level. Following the September meetings she felt “absolutely totally devastated” which affected her both mentally and physically.[2] She continues to experience difficulties with concentration, comprehension and memory and with her ability to think analytically. She procrastinates, especially in relation to personal matters and has difficulty with sleeping and some aspects of personal care. The extent of these difficulties varies from time to time but she has not regained her pre-injury capacity. She relied on the evidence and opinions of Dr Mackay, Mr Woodger, Dr Knox and her daughter, Ms K Shanley, in support of her argument.
[2] Transcript 21.5.08 p-21.
THE EVIDENCE OF DR MACKAY
12. Dr Mackay has been Ms Shanley‘s general practitioner since 1995. She gave evidence that in August and September of 2003 Ms Shanley was distressed by her situation at work and that her condition was deteriorating. Dr Mackay described Ms Shanley prior to that employment as a “very able, hard-working individual…delighted to be accepted for the particular job.”[3] In the opinion of Dr Mackay, since September 2003 Ms Shanley has not been able to work as before, has had difficulties with her self-care and has needed support to be able to continue in the work she has undertaken. In her opinion Ms Shanley is not capable of returning to full-time work with the Commonwealth Public Service. However, she agreed that from late 2004 she observed a gradual improvement in Ms Shanley's condition.
[3] Transcript 22.05.08.
13. I have considered several reports prepared by Dr Mackay.[4] These are consistent with the opinions noted above and also indicate that Dr Mackay regarded the psychologist, Mr Woodger, as having the primary role in the treatment of Ms Shanley's psychological condition.
[4] Ex.A18.
THE EVIDENCE OF MR WOODGER
14. Mr Woodger is an experienced clinical psychologist. He treated Ms Shanley between March 2000 and November 2006, initially for conditions which included anxiety and depression unrelated to her employment.[5] Ms Shanley also consulted him in relation to workplace difficulties at both the Commission and the Department.
[5] Ex.A17.
15. In the opinion of Mr Woodger, from the time of the workplace incidents until November 2006 Ms Shanley exhibited “very evident signs and symptoms of depression” [6] which worsened to the point of becoming a major depressive disorder. In his opinion these symptoms were continuing at the time of his last consultation with Ms Shanley in November 2006. He said that in his consultations with Ms Shanley he moved from one issue to another (not all of which were work-related) but that work-related issues continued from 2003 onwards.
[6] Transcript 22.05.08
16. Mr Woodger gave evidence by telephone. He did not have his clinical notes available to him when he gave his evidence-in-chief, but these were provided to him during his cross-examination. Having familiarized himself with his notes he agreed that they indicated that Ms Shanley had improved in 2004 and recovered from her mental condition by 2005. Nevertheless he maintained his opinion originally expressed. I note that in a report of 1 October 2007 he indicated that at the time he ended his consultations with Ms Shanley he recommended that she continue psychological treatment ”as her issues with her employers were unresolved.”[7] He said also that he considered that prior to 2003 Ms Shanley had not suffered from the same degree of memory and concentration problems nor had she experienced the difficulties with self-care as she did afterwards.
[7] Ex.A17.
EVIDENCE OF DR KNOX
17. Dr Knox, Consultant Psychiatrist, treated Ms Shanley in September 2004 and April 2006 on referral by Dr Mackay. In addition he provided reports for the purpose of these proceedings in 2007 and 2008, having assessed Ms Shanley for this purpose in February 2007 and again in March 2008.[8]
[8] EXs A3, A4 and A5.
18. In February 2007 Dr Knox diagnosed Ms Shanley as suffering from chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and from Major Depressive Disorder. In his opinion “Ms Shanley's mental health impairment has arisen out of workplace injuries … in both the HIC and the DoHA, in the context of her sensitivity to criticism and rejection.” [9] Further he was of the opinion that the workplace injuries were significant. Dr Knox confirmed these opinions when he gave evidence.
[9] Ex.A3.
19. In his report of 19 February 2007[10] Dr Knox expressed the opinion that Ms Shanley had never warranted a diagnosis of alcohol dependence and that she had not seriously misused alcohol.
[10] Ex.A3.
EVIDENCE OF MS K SHANLEY
20. Ms Kimberley Shanley, Ms Shanley's daughter, said that she saw her mother nearly every day during 2004-2007 inclusive. In early 2004 she and Ms Shanley set up a business relating to etiquette in the workplace which they operated through a company. Ms K Shanley said that it was difficult to keep her mother focussed on relevant matters and later in 2005 they decided to conduct separate businesses. She assisted Ms Shanley to set up her own business known as Kiku Arts. Ms Shanley continues to operate this business.
21. Ms K Shanley said that she observed changes in Ms Shanley's behaviour from 2003 onwards and that her mother’s condition appeared to be worsening. Ms K Shanley said that Ms Shanley became more forgetful, her concentration was poor and she needed more assistance from others. On many occasions when she visited Ms Shanley in the middle of the day she would find her in bed. She did not appear to take the same care of herself as she had done prior to 2003. Ms K Shanley denied that her mother was “a lot better” by the end of 2005.
22. Ms K Shanley impressed me as a truthful witness and I accept her evidence.
COMCARE’S CONTENTIONS
23. Comcare argued that based on the evidence of Dr Knox and Dr Skinner, Ms Shanley has personality traits which cause difficulties in her interactions with other people and that when such difficulties arise she suffers anxiety and depression as a consequence. It was put that these difficulties have been apparent since (at the latest 1994) and are continuing. It was argued also that that the adjustment disorder suffered in May 2003 was aggravated in September 2003 but that recovery from the aggravation began in late 2004 and the adjustment disorder had stabilized by November 2005. Comcare says that the adjustment disorder (in conjunction with the personality traits) is part of the underlying condition which causes Ms Shanley to continue to suffer anxiety and depression.
24. Comcare relies on the evidence of Dr Skinner, Dr George and Mr Woodger in support of the argument that Ms Shanley has recovered from the injury and had done so by 1 November 2005.
EVIDENCE OF DR SKINNER
25. Dr Skinner is a consultant psychiatrist. She examined Ms Shanley for the purposes of these proceedings in October 2006 and in October 2007. In her opinion Ms Shanley suffered from adjustment disorder with mixed emotions of depression and anxiety for several months from about May 2003, as reported in the clinical records of Dr Mackay. She expressed also the opinion that the condition of adjustment disorder had been aggravated by Ms Shanley’s employment with the Commission and the Department. In her view Ms Shanley did not suffer from a psychiatric condition when she assessed her in October 2006.[11]
[11] Ex. R27, report 6.11.06.
26. In her report of 27 April 2007 Dr Skinner said that it was difficult to apportion the attribution of causal factors between the employment with the Commission and the employment with the Department. Nevertheless she said that if it is accepted that Ms Shanley continued to suffer a compensable condition she would put the contribution at 50% each.[12] This makes clear that Dr Skinner was not suggesting that Ms Shanley had recovered from the injury (being the aggravation) without having recovered from the effects of the May 2003 injury.
[12] Ex. R28.
27. Having examined Ms Shanley in October 2007, Dr Skinner was of the opinion that she was not suffering from a psychiatric condition at the time and that she would have suffered from the Adjustment Disorder for several months from May 2003.[13] When she gave evidence Dr Skinner said that in her opinion that if a person suffering an Adjustment Disorder is not referring to the incident which gave rise to the Disorder it generally indicates that the person has moved on from the condition.
[13] Ex. R29.
EVIDENCE OF DR GEORGE
28. At the request of Comcare Ms Shanley was examined by Dr George, a Consultant Psychiatrist, in July 2005. He provided two reports dated 2 August 2005 and 14 February 2006 respectively.[14] It is important to note that Dr George assessed Ms Shanley's condition shortly before the time at which Comcare says Ms Shanley had recovered from the injury.
[14] Exs R20 & R21.
29. In the opinion of Dr George Ms Shanley was suffering Chronic Adjustment Disorder with anxious and depressed mood, the immediate precipitant of which lay in her work situation. However he was also of the opinion that the perpetuation of her symptoms at the time was probably related to alcohol abuse. In his view Ms Shanley was not voluntarily exaggerating her symptoms which had probably become worse simply because of alcohol abuse.[15]
[15] Ex. R20.
EVIDENCE OF MS SHANLEY'S CONDITION PRIOR TO HER SUFFERING THE INJURY
30. Comcare argued that Ms Shanley has personality traits that increase the likelihood that she will have difficulties in dealing with other people which in turn cause her to suffer stress, anxiety and depression. It was agued also that Ms Shanley had a history of episodes of depression arising from events which were not work related. Counsel referred me to the following:
· evidence of Dr Skinner;
· evidence of Dr Knox;
· evidence and clinical notes of Mr Woodger;
· evidence of Ms Shanley;
· Health Services Australia report;[16]
· Notification of Formal Counselling;[17]
· Conduct Interview Report;[18]
· Report of Sutton & Williams Psychology Services.[19]
[16] Ex.R1.
[17] EX.R7.
[18] Ex.R32.
[19] Ex.R33.
EVIDENCE OF IMPROVEMENT OF MS SHANLEY'S MENTAL CONDITION IN 2004 AND 2005
31. Comcare relied on evidence that it said showed that Ms Shanley was recovering from her injury during late 2004 and throughout 2005. This evidence included:
·the clinical notes of Dr Mackay and of Mr Woodger which record apparent improvements in Ms Shanley's mood, effect and appearance in 2005;
·the reports of Dupont & Associates Pty Ltd, Ms Shanley's rehabilitation provider, which refer also to improvements in her attitude and her management of her own business;
·the evidence of Ms Shanley as to her work with Fashion Flair & Fantasy and her work with her daughter in 2005;
·the evidence of Ms Shanley that she was able to take part in two trips to New Zealand in September 2005 (one of which was a business trip).
DETERMINATION OF THE ISSUE
32. On the basis of the evidence referred to in the preceding paragraph 5 I am satisfied that Ms Shanley does have personality traits which have caused her on occasions to experience difficulties in personal relationships which she would not have experienced but for those traits. I am satisfied also that prior to her suffering the injury she had experienced a number of stressful events in her life which understandably caused her distress and at times to suffer an episode of depression. I will return to the relevance of these findings later in these reasons.
33. As the decision under review is a decision to cease payments for incapacity claimed to arise from an accepted condition it is necessary that I am persuaded that circumstances have changed sufficiently to justify the cessation, although this does not mean that there is a burden of proof resting on Comcare: Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307.
34. This application is complicated by there being two injuries of a similar nature which occurred within a period of five months. It is important to keep in mind that Comcare argues that Ms Shanley has recovered from the aggravation of the Adjustment Disorder and that any symptoms from which she suffered or continues to suffer after 1 November 2005 are a result of her personality traits and/or the Adjustment Disorder itself. However the opinion of Dr Skinner, on which Comcare relies, is that in October 2006 Ms Shanley did not suffer from any psychiatric condition and that this remained the situation in October 2007. It follows that Dr Skinner does not support the argument that the Adjustment Disorder suffered in May 2003 has contributed to any symptoms displayed by Ms Shanley, at least after October 2006.
35. On the basis of the evidence of Ms Shanley, Dr Mackay and Mr Woodger I am satisfied that there was considerable improvement in Ms Shanley's mental condition during late 2004 and during 2005. I have taken into account the business activities in which Ms Shanley engaged and the noted changes in her presentation to both practitioners. I have taken into account also that Mr Woodger’s notes for the period September 2003 – October 2006 indicate that Ms Shanley's consultations with Mr Woodger related mostly to issues other than those arising from the injury.
36. However, despite the improvement in her condition, I am not persuaded that Ms Shanley had recovered from the injury by 1 November 2005 or that she has fully recovered at the time of this decision. I have reached this conclusion based on the evidence of Ms Shanley, Ms K Shanley, Dr Mackay, Dr Knox and Mr Woodger. Dr Mackay and Mr Woodger have the advantage of having been able to assess Ms Shanley before and after the injury and of being treating practitioners of Ms Shanley over extended periods. Both have given evidence that she has not returned to her pre-injury condition. I accept their evidence.
37. Comcare has put that I should treat Ms Shanley's evidence with caution. I have considered her evidence carefully, particularly in view of her deliberate failure to assist in the obtaining of evidence from Dr George and her manner and demeanour whilst giving evidence before me.
38. I have taken into account the evidence of Ms McLean, who was Ms Shanley’s supervisor in the Department, as to the difficulties she experienced with Ms Shanley, The interpretation of the interaction between fellow-employees in what was obviously a tense workplace situation is very difficult. I do not make any adverse finding in relation to Ms Shanley's truthfulness based on the evidence of Ms McLean. Further I do not make any inference based on the alleged failure of Ms Shanley to provide examining psychiatrists with accurate details of her medical history as I do not have sufficient evidence of the information sought nor the state of Ms Shanley's understanding of the detail of her past diagnoses.
39. I accept the evidence of Dr Knox. He was Ms Shanley's treating psychiatrist between September 2004 and April 2006 which includes the period during which Comcare argues that Ms Shanley recovered from the injury. In his opinion Ms Shanley has not fully recovered from the injury and that her workplace conditions made a significant contribution to the injury.
40. Dr Skinner did not persuade me that Ms Shanley has recovered fully from the injury. She attributes any ongoing difficulties experienced by Ms Shanley to her personality but she agrees with Dr Knox’s view that in February 2007 Ms Shanley was incapacitated for work in the Department.[20] Notwithstanding her personality traits, Ms Shanley had worked in the Public Service for approximately six years prior to her being injured. Dr Skinner did not explain why she was of the opinion that those traits alone prevented Ms Shanley from returning to her pre-injury employment in February 2007 but had not prevented her working in the Public Service prior to the injury.
[20] Dr Skinner’s report of 27.04.07, ex.R28.
41. Despite Ms Shanley's obvious antipathy to Dr George, his opinion assists her. On the basis of her evidence and that of Dr Mackay and Dr Knox, I am satisfied that at the time Dr George assessed Ms Shanley her consumption of alcohol was not such as to have caused the symptoms from which she then suffered. Both Dr Mackay and Dr Knox said that Ms Shanley was not alcohol dependent. I prefer their evidence as each of them had greater opportunity to asses Ms Shanley than did Dr George in this respect.
42. I accept that Ms Shanley probably contributed to Dr George’s misunderstanding of her circumstances and I am satisfied that in some respects she deliberately misled him. This does not reflect well on Ms Shanley. However, having not accepted Dr George’s opinion as to the role of alcohol abuse in explaining Ms Shanley's symptoms I am left with his view that in July 2005 she was suffering Chronic Adjustment Disorder with anxious and depressed mood which was precipitated by her workplace situation. This is at odds with the opinion of Dr Skinner that Ms Shanley would have recovered from the Adjustment Disorder and the aggravation of the condition within several months of May 2003.
DECISION
43. The decision of Comcare made 7 March 2006 (ref.663568/04) is set aside.
44. In accordance with subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the matter is remitted to Comcare for reconsideration in accordance with these Reasons for Decision.
45. The costs of the proceedings before the Tribunal incurred by Ms Shanley shall be paid by Comcare.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed
……….…….............................................................................
Peter Strauch
AssociateDate of Hearing 21, 22 & 23 May 2008
Date of Decision 7 August 2008
Counsel for the Applicant David Richards
Solicitor for the Applicant Robert Coen
Pamela Coward Higgins
Counsel for the Respondent Elanne Ford
Solicitor for the Respondent Peter WoulfeDibbs Abbott Stillman