Smith and Comcare
[2007] AATA 1796
•25 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1796
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/295
GENERAL ADMINISTRATIVE DIVISION ) Re BARBARA SMITH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date25 September 2007
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that there is no bar to Ms Smith’s claim for compensation entitlements pursuant to subs 7(7) of the Act, in relation to depression. ...............signed...............................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - disease - employment contribution - pre-employment health declaration - meaning of 'disease' and 'wilful and false representation' - declaration false - no intention to mislead - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 7
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Compensation (Commonwealth Employees) Act 1971 s104
Comcare v Porter (1996) 70 FCR 139
Re Schofield and Comcare (1995) 38 ALD 124
Re Guerrero and Comcare [1999] AATA 343
Commonwealth Banking Corporation v Percival (1988) 82 ALR 54
Johnston v The Commonwealth (1982) 150 CLR 331
Comcare v Mooi (1996) 69 FCR 439
Ianella v French (1968) 119 CLR 84
REASONS FOR DECISION
25 September 2007 Mr S. Webb, Member 1. Barbara Smith suffered a disease in the course of her employment. She claimed compensation. Her claim was denied by primary and secondary decision makers. In these proceedings, Comcare conceded that Ms Smith’s employment materially contributed to cause her disease. However, Comcare asserts that her disease is not an injury because she made wilful and false representations that she had not previously suffered from the disease.
2. The parties agreed that the only issue for determination is whether Ms Smith is excluded from compensation by operation of subs 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Comcare accepted that if the matter is resolved in Ms Smith’s favour, her disease is “a psychological injury… being depression”.[1] Before addressing the issue, there are matters concerning the applicable legislation that must be addressed.
[1] Respondent’s Statement of Facts and Contentions, 7 June 2007, point 25.
3. The definitions of ‘injury’ and ‘disease’ under the Act presently in force (that were introduced by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007) have effect only in relation to injuries or diseases after 12 April 2007 (the date of Royal Assent), and do not, therefore, have effect for the purpose of these proceedings.
4. Thus, relevantly, ‘injury’ and ‘disease’ are defined at subs 4(1) of the Act, to mean:
4(1) In this Act, unless the contrary intention appears:
injury means:
(a)a disease suffered by an employee; or
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
the facts
5. The following uncontroversial facts are established on the materials before me. In 1998 and 1999, Ms Smith was employed as a Recruitment Officer by the Commonwealth Department of Primary Industries, Agriculture, Fisheries and Forestry. She was involved in a restructuring program that resulted in redundancies, including her own. This caused her to experience stress in relation to which she consulted her general practitioner, Dr J. Reeve. Dr Reeve noted Ms Smith’s concerns and related symptoms on 6 December 1998 and 24 February 1999.[2] On 29 June 1999, Dr Reeve recorded that Ms Smith was “stressed out – can’t get leave, needs to go to Sydney – not sleeping, depressed, agitated”. He prescribed Diazepam and noted “mc 3-5 days from 2/8” and “mc 1/7 from 30/7/99”. On 2 December 1999, Ms Smith consulted Dr Reeve, who noted “attending counsellor re work situation, took some leave – then returned 10/52, over last 2/52 further work difficulties – finds no challenge with work, work volume OK, wants to get out of work. Discussion re job options. Crying most days each week”. Dr Reeve prescribed Diazepam and Zoloft.[3]
[2] Exhibit R3.
[3] Exhibit R3.
6. On 20 July 2000, Ms Smith undertook a pre-employment Health Services Australia health assessment by Dr K. Boyapati and was subsequently employed by the ACT Department of Health. The HSA assessment form posed the question “Do you have or have you ever had:” in relation to a number of specified health conditions, including “nervous or mental condition” and “anxiety or stress reaction or depression”.[4] Ms Smith ticked “No” in relation to these conditions. Comcare asserts that in so doing, Ms Smith made a wilful and false representation that she had not previously suffered from agitated stress and depression.
[4] Exhibit R1, Section 2, Part B.
7. Subsequently Ms Smith consulted Dr Reeve about other matters. Dr Reeve prescribed Diazepam in March and April 2001, as it appears that Ms Smith was having difficulty sleeping at that time as a result of a knee complaint. However, the Doctor did not record any complaints about Ms Smith feeling agitated, stressed or depressed until July 2001. I accept that Ms Smith did not obtain medical treatment for any such complaints in the period from 2 December 1999 to July 2001.
8. In July 2001, Dr Reeve noted “wants more time off. Wants to resolve work issue. Feeling stressed out. Looking for another job – attending counselling. Mc 2-5/7”; and “s/b Davidson Trahaire (Carolyn) counsellor suggests try Aropax. Discussed ? feeling of agitated depression. ? Situational agitated depression”. Dr Reeve prescribed Aropax and Diazepam.[5]
[5] Exhibit R3.
9. On 28 September 2001, Ms Smith was assessed by Dr K. Boyapati for Health Services Australia. Dr Boyapati reported that Ms Smith’s “current symptoms” were “Teary on most days” with “Depressed mood, low frustration tolerance and perceived difficulties with coming to terms with poor work performance report”.[6] On examination he reported that her “mood and affect were depressed”.[7] Dr Boyapati apparently discussed Ms Smith’s case with Dr Reeve, and stated that:
“Ms Smith appears to be suffering from an Adjustment Reaction as a result of these [work and personal] events. She is not on any medication at present for this condition, although she has been on Aropax for a brief period in the past”.[8]
[6] T6 folio 24.
[7] T6 folio 25.
[8] T6 folio 25.
10. On 23 April 2002, Dr Reeve noted that Ms Smith “feels depressed run down – holds back tears – started drinking again 5 glasses of wine – can’t cope – walking dogs more feels agitated” and prescribed Zoloft and Diazepam. In August 2002 Dr Reeve noted that Ms Smith was “off Zoloft”. On 27 March 2003, Ms Smith consulted Dr Reeve in relation to a sore knee. The Doctor prescribed Diazepam. On 22 September 2003, Dr Reeve noted that Ms Smith was “feeling stressed & overworked, short fused & agitated, flexed of [sic] work last week” and diagnosed “situational agitated depression work related”. The Doctor prescribed Stilnox and Zoloft. On 29 September 2003, Dr Reeve noted “less teary – taking Zoloft. Took Stilnox – woke shaking. Now on ½ Stilnox – no shakes… Combine Zoloft/Stilnox pm”. On 10 October 2003, Dr Reeve noted that Ms Smith was “on Zoloft … less depressed”. On 30 January 2004, Dr Reeve noted that Ms Smith was “off Zoloft”. It appears that Ms Smith took Zoloft and Diazepam at various times in the period to 28 October 2004, when Dr Reeve noted that she “wants psyche referral – Ranesh Gupta”.[9] That referral was made on 9 November 2004.[10] On 18 November 2004, Dr Gupta reported “very significant clinical depression” and noted “a previous history of being treated with an antidepressant in 2001 when she was under similar stress with workplace difficulties”.[11] Previously, on 8 September 2004, Dr R. Sweeney (Health Services Australia) reported complaints of “multiple symptoms of anxiety and depression”,[12] and a previous history including “Reactive depression in 2001 to mainly a domestic matter”.[13]
[9] Exhibit R3.
[10] Exhibit R2.
[11] T39 folios 124-125.
[12] T20 folio 63.
[13] T20 folio 62.
11. On 4 April 2004, Ms Smith completed an Incident Report stating that her psychological system was affected by an incident involving her supervisor.[14] On 2 December 2004, Ms Smith lodged a claim for compensation in which she quoted “Agitated stress + depression” as the “precise diagnosis as stated on a medical certificate” from Dr Reeve.[15] In response to the questions “Have you ever had a similar symptom, injury or illness before, work-related or otherwise?” and “Have you ever received medical treatment for a similar injury or illness?”, Ms Smith ticked “No”.[16]
[14] T8.
[15] see, for example, T13 folio 43.
[16] T33 folio 101.
did ms Smith make a wilful and false representation?
12. In Comcare’s submission, Ms Smith made wilful and false representations concerning her prior history of suffering stress, depression and agitation or anxiety in the HSA health assessment form she completed on 27 July 2000 and in the compensation claim form she lodged on 2 December 2004. In consequence, Comcare asserts that even though Ms Smith suffered from agitated stress and depression, being a disease that was materially contributed to by her employment, the disease is not an injury under the Act and she is not entitled to compensation.
13. As will appear, I do not agree.
14. Subs 7(7) is in the following terms:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
15. Comcare submitted, correctly, that the purpose of the subsection is to protect employers from compensation claims by employees in relation to a disease when the employee has made a wilful and false representation that he or she did not or had not previously suffered from the disease contrary to fact. The subsection removes from the scope of compensable injury a disease, as defined, if an employee has made a wilful and false representation about it. That is the basis on which previous settled cases have proceeded (Comcare Australia v Porter (1996)[17]; Re Schofield and Comcare (1995)[18]; and Re Guerrero and Comcare [1999][19]). However, there are some difficulties applying the defined meaning of ‘disease’ when interpreting the subsection. ‘Disease’ appears twice. The difficulty arises in relation to the second use of the word, being the subject of the representation. Was it the intention of the Parliament to limit the exclusionary effect of the subsection to a wilful and false representation that the employee did not or had not previously suffered from a disease as defined, being an ailment to which employment has materially contributed? I think not. Examination of relevant extrinsic materials, including the Second Reading Speech and Explanatory Memoranda concerning the subsection, does not reveal any such intention. As it appears to me, the intention of the Parliament on enactment was to exclude from the meaning of ‘injury’, and thereby from the compensation regime under the Act, claims in relation to a ‘disease’ as defined, being an ailment that is materially contributed to by the employment, in cases where the employee has made a wilful and false representation concerning any prior history of suffering the ailment that lies at the heart of the ‘disease’.
[17] 70 FCR 139.
[18] 38 ALD 124.
[19] AATA 343.
16. As subs 7(7) is a penalty provision, careful consideration must be given to the preconditioning factors. Each necessary factor must be properly established to the reasonable satisfaction standard before the section is enlivened, and the penalty imposed. Thus, six questions must be considered in order to properly determine the applicability of subs 7(7). These are:
(i) What is the claimed disease?
(ii) What are the representations that are alleged to be wilful and false?
(iii) Are the representations in relation to the disease under claim?
(iv) If so, were the representations made in connection with the relevant employment?
(v) If so, were the representations false?
(vi) If so, were the false representations wilful?
what is the claimed disease?
17. The disease Ms Smith claimed on 2 December 2004 was “Agitated stress & depression”.[20] Her evidence is that she copied this description from a medical certificate by Dr Reeve. However, I am reasonably satisfied that the disease from which Ms Smith was suffering in December 2004 was diagnosed by Dr Gupta as “very significant clinical depression”.[21]
[20] T33 folio 100.
[21] T39 folio 125.
what are the representations that are alleged to be wilful and false?
18. On 20 July 2000, Ms Smith ticked “No” in response to the question “Do you have or have you ever had: … nervous or mental condition… anxiety or stress reaction or depression…”.[22]
[22] Exhibit R1, Section 2, Part B.
19. On 2 December 2004, Ms Smith claimed compensation in relation to “Agitated stress & depression”. Ms Smith ticked “No” in answer to the questions “Have you ever had a similar symptom, injury or illness before, work-related or otherwise?” and “Have you ever received medical treatment for a similar injury or illness?”.[23]
[23] T33 folio 101.
Were the representations in relation to the disease under claim?
20. The exclusionary effect of subs 7(7) is in relation to the “disease suffered” by the employee. Thus in order to precondition the subsection it must be established that the disease suffered by the employee (being an ailment to which the relevant employment has materially contributed) is the disease about which the employee made a wilful and false representation of the requisite kind.
21. The disease Ms Smith suffered at the time she lodged her claim for compensation was diagnosed by Dr Gupta as “very significant clinical depression”. The representations she made were, in part at least, in relation to depression. Thus, at least in general terms, the representations Ms Smith made were in relation to the disease under claim.
were the representations made in connection with the relevant employment?
22. The answer is yes. Ms Smith’s representation was, in the first instance, in a pre-employment health assessment, and in the second instance, in a compensation claim form. In both cases it is clear that the representations were for purposes connected with her employment.
were the representations false?
23. The term ‘false representation’ connotes objective falsity and knowledge (Comcare v Porter (1996)[24]). These are matters of fact and degree. It is clear enough from the clinical notes of Dr Reeve,[25] that Ms Smith felt depressed and agitated in December 1999, and that she had a stressed reaction to circumstances in her employment at that time and during preceding months, in all likelihood from May 1998. Dr Reeve described Ms Smith’s symptoms at that time as a ‘situational depression’. On that evidence, which I accept, it can thus be seen that the information Ms Smith disclosed was objectively false. I so find.
[24] 70 FCR 139, at 150.
[25] Exhibit R3.
24. Ms Smith accepts that she provided the information on the HSA assessment form and the compensation claim form herself. As can be seen, she ticked ‘Yes’ in relation to some parts of the question posed in the HSA assessment form, and ‘No’ in relation to other parts. I am satisfied therefore that she knew that she was making the specific representations in that form. The same can be said in relation to the compensation claim form.
25. It follows that I am satisfied that Ms Smith made a false representation on 27 July 2000 and a further false representation on 2 December 2004. However, that is not the end of the matter.
26. If one considers that subs 7(7) requires that the false representation must be in relation to the disease suffered by the employee, it can be seen that the falseness of the representation Ms Smith made in relation to ‘situational depression’ must be carefully considered in relation to the disease she later suffered. If Ms Smith did not make a false representation concerning the disease she later suffered then the subsection is not properly preconditioned. There is a difficulty in relation to the generality of the question Ms Smith was required to answer in the HSA form. The word ‘depression’ has a variety of meanings and may connote situational responses or illnesses with different characteristics and effects. There is no explanation of what is meant by the terms used in the HSA form. So long as such a form is open to interpretation by an employee in this manner, difficulty will attach to any representations so made for the purposes of subs 7(7). Thus, it would be desirable for relevant authorities to ensure that such forms contain clear and precise information about the meaning of the terms used. It is not necessary to go further on this point as this matter resolves in Ms Smith’s favour on other grounds. Nevertheless, as will appear, I am not satisfied that the disease Ms Smith suffered at the time she made claim for compensation is the same disease about which she made a false representation. On that basis I am reasonably satisfied that the false representation she made was not in relation to the specific disease she later suffered. The same cannot be said of the representation she made in the compensation claim form.
were the false representations wilful?
27. The meaning of ‘wilful’ was discussed by Jenkinson J in Comcare v Porter.[26] His Honour accepted as apposite Barwick CJ’s discussion of the meaning of the word in Ianella v French (1968).[27] From these authorities, it can be seen that the word ‘wilful’ in this context connotes knowledge, intention, and importantly, purpose: “It is not merely that the mind goes with the act but that the mind intends by the act to achieve something”. While the term ‘false representation’ connotes objective falsity and knowledge, the conjunctive addition of the word ‘wilful’ imports an element of purpose, whereby to be wilful, the representation made must be made without any belief that it is true (Porter[28]).
[26] Above n 38, at 148-150.
[27] 119 CLR 84, at 94-95.
[28] Above n 38, at 150.
28. Ms Smith’s sworn evidence is that she believed the representations she made were true and that she completed the HSA form and the compensation claim form truthfully on the basis of her understanding of her medical history and her understanding of the forms and the questions set out therein.
29. Comcare sought to attack Ms Smith’s credit. However, I found Ms Smith to be a straight-forward witness who gave her evidence without apparent guile, despite having some difficulty recollecting the details of events that occurred more than seven years ago. Such difficulties do not render other aspects of her evidence, where her memory is not beset with doubt or uncertainty, so unreliable that it cannot be accepted. I am not persuaded that her evidence concerning the representations she made is either incongruous with the facts or inconceivable. Nor am I persuaded that she deliberately set out to withhold information or to deceive her employer or this Tribunal.
30. The representation Ms Smith made by completing the HSA assessment form in July 2000 must be considered in context. Completing the form was one part of the assessment conducted by Dr Boyapati. The question “Do you or have you ever had:” appears in the “Medical History” section of the assessment form and refers to 33 listed health complaints, from point 8 concerning “heart disease or condition (eg heart attack, heart surgery)” to point 42 concerning “any other health complaints”. The health complaints listed there are general in character, such as “liver disease (eg hepatitis, cirrhosis)” or “allergies” or “dizziness, faints or turns”. Some of the listed items are so broad in scope that it is difficult to ascertain from the form precisely what information is required, for example, “arm or shoulder pain” or “pain in legs or feet”. It is difficult to conceive of anyone who has not at some time experienced “arm or shoulder pain” or “pain in legs or feet”. The same could be said in relation to “anxiety or stressed reaction or depression”. Are such common experiences within the scope of the question posed? As the terms appear in the context of a health assessment are they to be given a medical meaning of some sort? Plainly enough the form is open to interpretation.
31. In the context of a health assessment, in the absence of clear guidance it may be reasonable to assume (possibly wrongly) that “arm or shoulder pain” does not refer to any minor pain in those regions that is within the scope of common experience, as a result of any number of minor knocks or bumps in the course of a lifetime, for example. The question concerning “anxiety or stressed reaction or depression” may be interpreted in a similar way to exclude ordinary experiences of feeling anxious, stressed or depressed that are commonplace and do not constitute an illness.
32. Ms Smith says that she interpreted the particular question and the information sought as referring to significant health complaints in the form of illnesses. She did not consider that her previous experiences of feeling stressed, depressed and agitated in response to her employment in 1998 and 1999 were significant health complaints or an illness. That evidence is given some support by Dr Reeve’s evidence concerning the situational nature of her complaints in 1999.[29] Furthermore, Ms Smith says that after leaving her previous employment she did not experience the same problems and was in good health when she completed the HSA form in July 2000. There is no evidence that Ms Smith sought medical treatment in relation to any feelings of stress, depression or agitation from 2 December 1999 to 12 July 2001, when she again consulted Dr Reeve about stress in relation to particular circumstances in her employment at that time.
44. Ms Smith’s interpretation of the form can be accepted as reasonable and open. The particular questions posed are ambiguous and open to interpretation in the absence of clear direction in the assessment form. The directions set out on the cover of the form are general in nature and are not likely to assist a person in relation to any doubt about how to address the specific health complaints listed in points 8 to 42 inclusive. The form directs that “if you have any difficulties with any questions in the form, please discuss these with the examining doctor”. Dr Boyapati was the examining doctor, but was not called to give evidence. Thus, there is no objective evidence as to whether Ms Smith discussed her responses to the particular questions in issue with Dr Boyapati during the assessment. Ms Smith could not recall whether she did, or if she did, the content of such discussions.
45. The issue of what was in Ms Smith’s mind at the time she completed the HSA form and the compensation claim form must be addressed. Ms Smith says that she believed the information she provided in the forms to be true and that she did not intend to conceal anything about her health history from her employer. These assertions are consistent with the explanations she has given under oath concerning her understanding of the information required in the HSA health assessment form and the compensation claim form. Her understanding is not incongruous with the facts and is not inconceivable or contradicted by compelling evidence.
46. For Ms Smith’s false representations to be found wilful, I must be reasonably satisfied that she did not have any belief that they were true. Her strenuous assertion that she believed what she declared on the forms to be true was tested under cross-examination. Having heard her evidence I accept that she believed that she had not suffered from any illness in the terms set out in the HSA form as she understood them, and that she drew attention to the commencement of the disease under claim, in her own mind at least, when she declared in the compensation claim form that she had first obtained medical treatment for the condition from Dr Reeve in “2 2001” (T33 folio 100). Her knowledge that Dr Reeve treated her complaints of feeling stressed, depressed and agitated in December 1999, does not compel a conclusion that the false representation she made was either intentional or purposeful to the extent of being wilful. I am satisfied that it was not and so find.
[29] Transcript, 30 August 2007 pp 5, 14-15.
33. Comcare says that Ms Smith’s symptoms in 1998 and 1999 form part of the disease she claimed in December 2004. Thus, in Comcare’s submission, her denials of having had depression or any similar illness or symptoms, without requiring any degree of self-diagnosis, were factually false and wilful.
34. The symptoms of a disease form part of the disease for compensation purposes (Commonwealth Banking Corporation v Percival (1988)[30]). However, the scheme the Act provides in relation to disease does not found a disease-related injury on the emergence of symptoms of the disease, but deems such an injury to have occurred on the date medical treatment was first sought for the disease, or when the disease caused incapacity for work, impairment or death, whichever occurred first (subs 7(4)). One can conceive of a case in which symptoms over a period were not sufficient to indicate the presence of disease, and preceded medical diagnosis or treatment of the disease. Thus, for the purposes of the Act, as was said by Gibbs CJ, Mason and Wilson J in Johnston v The Commonwealth (1982)[31]: “in the context of a remedial Act such as the one under consideration, symptoms do not become apparent until they are recognised for what they really are, namely, as symptoms evidencing the presence of the disease”.[32] Even though those obiter remarks were in relation to s.104 of the Compensation (Commonwealth Employees) Act 1971, they are apposite here.
[30] 82 ALR 54, at 57.
[31] 150 CLR 331.
[32] Ibid, at 342-343.
35. Thus, in a case such as this, one must carefully determine whether the specific symptoms at a particular point in time are the symptoms of a disease that are outside the boundaries of normal functioning and behaviour (Comcare v Mooi (1996)[33]), and if so, whether that disease is the same disease in relation to which representations were made.
[33] 69 FCR 439, at 443-445.
36. This is a difficult area in which the boundary between ‘normal functioning and behaviour’ and illness or disease is not sharply defined. It is a grey area in which elements that may be considered unexceptional in one case at a particular time may, in another case or at another time, be considered symptomatic of disease. I accept that feeling depressed, stressed or agitated may be common situational responses to circumstance. Like other situational responses, for example, grief or joy, such responses are not necessarily outside the range of normal functioning and behaviour and do not always connote illness or disease. In other words, a person who is not suffering mental disease could reasonably be expected to exhibit such situational responses without being considered ill or unwell. Nevertheless, such responses may be rendered outside the boundaries of normal functioning and behaviour by clinically significant symptoms in the form of a disease (Comcare v Mooi (1996)[34]). These are matters of fact and degree that must be assessed on the evidence in each case. Even though ‘disease’ is defined at subs 4(1) to mean an ‘ailment’, there are elements of the defined meaning of ‘ailment’─ “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”─ that may, in ordinary usage, refer to mental functions that are not in their ordinary state without connoting the presence of disease.[35] For example, as Dr Reeve made clear, the experience of grief or bereavement may appear to be an indisposition outside the ordinary mental state of a person, whereas for most people these experiences are a part of normal functioning and behaviour. The same may be said of many situational responses, including feeling stressed, depressed or agitated, without any connotation of disease or illness. Few are those who have not experienced such conditions in response to situations and circumstances from time to time.
[34] Ibid, at 444.
[35] Ibid.
37. Ms Smith’s evidence, supported by Dr Reeve’s clinical notes, is that she consulted the Doctor in 1998 and 1999 because she was stressed, depressed and agitated about her experiences in employment during a period of restructuring, in which she and others were made redundant. Dr Reeve’s notes reveal that Ms Smith was looking at her employment options and wanted “to get out of work”.[36] His evidence is that Ms Smith’s complaints and behaviours in 1999 were responses to particular circumstances in her employment. He described her responses as ‘situational’[37] and gave evidence that he would “probably” have diagnosed depression on 2 December 1999 when he first prescribed the anti-depressant Zoloft,[38] although no such diagnosis is recorded in his clinical notes. I accept this evidence and note in passing that ‘situational depression’ or ‘situational agitated depression’ are not recognised as diseases in the Diagnostic and Statistical Manual of Mental Disorders.[39] It appears that Dr Reeve proceeded on the basis that Ms Smith’s feelings would pass once the particular stressor was removed and her circumstances changed. He considered that prescriptions of Diazepam (Valium) and Zoloft may assist her to that end. Ms Smith’s evidence, which I accept, was that she did not fill the prescription for Zoloft. There is no evidence that she obtained medical treatment for any form of stress or depression in the period from 2 December 1999 to July 2001. Thus, it appears that Dr Reeve’s prognosis in 1999 was correct.
[36] Exhibit R3.
[37] Transcript, 30 August 2007, p5
[38] Transcript, 30 August 2007, p13
[39] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed, 1995.
38. In July 2001, Ms Smith consulted Dr Reeve about difficulties she was experiencing in her employment at the Canberra Hospital that time. It appears that those difficulties persisted and her situational responses to them deteriorated into a clinically significant depression by November 2004.
39. Doctor Reeve clearly distinguished between Ms Smith’s mental state in 1998-1999 and her subsequent mental state after July 2001 at the Canberra Hospital in the following terms:
“And so that particular condition, “situational agitated depression” is that a disorder that’s recognised, a psychological or psychiatric disorder?---No, it’s more of a description of the nature - - -
It’s a description?---Depression is feeling hopeless, helpless, sad, miserable, wanting to cry, ahedonistic, can’t enjoy yourself, losing weight, can’t initiate, immobilise. Agitation is where you’re feeling tense, up in the air, tremor, worked up.
And so would you say that - and I think your evidence was that what was being experienced around this time in 2001 was similar to what was being experienced in 1999 by Ms Smith?---Yes.
Both situational responses. Is that right?---Yes.
And would you characterise those responses as a disease?---Grieving is a state and it’s not a disease. Bereavement is a state and it’s not a disease. It can become a disease at a time when it becomes to the point that it immobilises or causes the person unable to function correctly.
And so I put my question again: would you characterise these responses, these situational depressions, as you’ve described them, as a disease, either in 1999 or 2001?---I think the earlier ones are probably more a reaction to the circumstances happening around her. I think the subsequent ones when she was in the hospital was more of an illness to the point that she was becoming so totally possessed by the circumstances, overwhelmed by it; whereas in between these first episodes she had episodes which were quite satisfactory, quite normal.
And in relation to anxiety, did you diagnose any sort of anxiety disorder at any point in this woman?---No, I think it was all response or reactionary to what was happening.”[40]
[40] Transcript, 30 August 2007, pp14-15.
40. On Dr Reeve’s evidence, experiencing a situational response to particular circumstances, such as feeling depressed or dejected, is one thing, and experiencing the clinically significant symptoms of depression that render a person unable to function correctly, is entirely another. Dr Reeve clearly (and correctly) distinguished between the two states on medical grounds. For most people the former are experiences within the scope of normal mental functioning and behaviour. On Dr Reeve’s evidence, the episodes Ms Smith experienced in 1999, and in all likelihood in July 2001, may be characterised in this way, and he considered that Ms Smith’s condition only later became symptomatic of disease. The fact that her mental condition deteriorated into the “very significant clinical depression” Dr Gupta diagnosed on 18 November 2004, supports that opinion. The development of disease after 2001 does not mean that her earlier situational responses in 1999 were symptoms of the disease she suffered after 2001. Simply put, in 1999, that disease was not then present or apparent to her treating doctor. I so find.
41. It is necessary to deal briefly with Dr Bannerman’s evidence. Dr Bannerman examined Ms Smith once on 18 May 1998. At the time she was a locum in Dr Morrison’s general practice. Neither she nor Ms Smith has any memory of the consultation. All that remains is a clinical note.[41] In that note, Dr Bannerman recorded:
“work stresses +++ Building up over 6 months. Worse since Easter. No sleeping. Poor appetite or binging ↑Drinking & gambling. Waking up after 1-2 hours feeling ↓↓ and stressed. Avoiding usual pleasure activities etc. Has arranged work counselling Wed week
Start Aurorix 150 bd”[42]
[41] Exhibit R4.
[42] Exhibit R3.
Dr Bannerman gave evidence that Aurorix is an antidepressant medication that is used to treat major depression and that she would have prescribed it because she considered that Ms Smith was suffering from depression. I am not persuaded by Dr Bannerman’s evidence. Dr Reeve’s clinical notes reveal that Ms Smith attended on him four days later on 22 May 1998: “off colour, nauseated throat sore. No diarrhoea headache”, in relation to which Dr Reeve prescribed Panadol and certified that Ms Smith was unfit for work for 1½ days. There is no record of Ms Smith complaining of stress or depression or symptoms that may indicate major depression at that time. The first record of Dr Reeve concerning work stress is on 6 December 1998, and that note does not refer to depression of any kind or related symptoms. Dr Reeve’s note on 29 June 1999 indicates that Ms Smith wanted time off and was “stressed out” but was unable to get leave to go to Sydney; she was “not sleeping, depressed, agitated”.[43] On that evidence, the proposition that Ms Smith was suffering from depression in May 1998 is not made out.
[43] Exhibit R3.
42. I am satisfied that Ms Smith’s situational responses in 1998 and 1999 were not symptoms of the disease that was medically diagnosed and treated in 2004, and so find. Even though Dr Reeve described her presentation as ‘situational depression’ and ‘situational agitated depression’, and prescribed anti-depressant and anti-anxiety medications, he did not consider her presentation to be consistent with an illness or a disease in 1999. With hindsight, one may be able to trace the progress of Ms Smith’s depressive disease in 2004 from earlier symptoms in 2001. It is possible that her complaints in 1999 were precursors to the emergence or recognition of the subsequent disease. However, even if that is correct, it would not compel a conclusion that the disease Dr Gupta diagnosed in 2004 was present and active before July 2001.
conclusion
47. Thus, in conclusion, I am reasonably satisfied that Ms Smith did not make a wilful and false representation to her employer in the HSA assessment form she completed and signed on 27 July 2000, or in the compensation claim form she completed and signed on 2 December 2004. Furthermore, the false representation she made on 27 July 2000 was not in relation to the disease she later claimed in December 2004. It follows that there is no bar to Ms Smith’s entitlement to compensation pursuant to subs 7(7) of the Act. Comcare does not dispute Ms Smith’s depressive disorder was materially contributed to by her employment and is an injury under the Act. Those matters were not agitated before me. It follows, therefore, that Comcare is liable to pay compensation to Ms Smith in relation to the injury in accordance with her entitlements under the Act.
48. The decision under review is set aside and in place thereof the Tribunal decides that there is no bar to Ms Smith’s claim for compensation entitlements pursuant to subs 7(7) of the Act in relation to depression. The matter is remitted to Comcare to determine Ms Smith’s entitlements to compensation under the Act.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: signed
Jane Gribble
AssociateDate of Hearing 30-31 August 2007
Date of Decision 25 September 2007
Representative for the Applicant Self
Counsel for the Respondent Andrew Dillon
Solicitor for the Respondent Carolyn Scarr
Australian Government Solicitor
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