Smith and Comcare (Compensation)

[2019] AATA 4473

Smith and Comcare (Compensation) [2019] AATA 4473 (5 November 2019)

Division:General Division  

File Number(s):      2017/2211

Re:Christina Smith

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:5 November 2019

Place:Sydney

The reviewable decision is affirmed.

............................[SGD]............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Respondent previously accepted liability for mild depressive disorder - Respondent subsequently revoked determination and rejected liability – whether Applicant sustained an injury significantly contributed to by her employment with the Department of Agriculture and Water Resources – whether liability is excluded by s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – consideration of Applicant’s employment and medical history – Applicant suffered from autoimmune and allergic conditions – consideration of clinical opinions in relation to Applicant’s psychiatric condition – finding in relation to date of onset – contemporaneous evidence does not show significant contribution by employment to psychiatric condition – reviewable decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 7(4), 14

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

5 November 2019

Introduction

1. Ms Smith has worked for Australian Quarantine and Inspection Service (AQIS), later absorbed by the Department of Agriculture and Water Resources (the Department), and the Department, as a quarantine officer, since 15 May 2006. Since the second half of 2006, she has suffered, from time to time, symptoms attributed to a non-specific autoimmune/allergic disease. She also suffers from psychiatric conditions, variously diagnosed. The first reference to such conditions in the evidence is a medical certificate dated 3 April 2007.

2. Her last day at work was 11 November 2013. She took leave without pay. She remains an employee of the Department.

3. Ms Smith lodged a claim for workers’ compensation dated 19 June 2014. She claimed that the injury was “anxiety, depression, PTSD” and occurred “2006 to present” “nature & conditions”. In response to the question about what she was doing when she was injured she wrote:

   I was sitting at my desk when my supervisor kept walking past my computer – I felt like I was having a heart attack and ran accross (sic) the road and rang Fiona Green (rehab).

4. It is not in dispute that that incident occurred on 23 July 2013. She has also described it as a panic attack.

5. On 22 September 2014, Comcare accepted liability for mild depressive disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The deemed date of injury pursuant to subsection 7(4) of the Act was found to be 23 July 2013. Reasonable medical treatment claims resulting from the injury were accepted up to and including 24 August 2014. Time off work claims were accepted from 25 June 2014 to 24 August 2014.

6. By reconsideration of its own motion on 31 March 2017, Comcare revoked that determination and rejected liability for the claimed condition. That is the decision under review. 

   The dispute

7. Ms Smith feels that she has not been properly supported by her employer, and has been bullied and harassed and discriminated against, because of her autoimmune health condition, which has resulted in the claimed condition. She relied on the opinions of Dr Jungfer and Associate Professor Davies, psychiatrists.

8. The Respondent relies on the opinion of Dr Champion, psychiatrist. In his report dated 7 February 2018, he concluded that Mr Smith suffered from “panic disorder with agoraphobia which has developed on the basis of underlying depression/anxiety over several years”. In his opinion, the cause of the diagnosed condition is her underlying conditions of autoimmune disease and chronic asthma, and therefore she has not sustained an injury that was significantly contributed to by her employment with the Department.

9. In the alternative, the Respondent submitted that if the evidence persuaded the Tribunal that Ms Smith has sustained a psychiatric condition that was significantly contributed to by her employment with the Department, it was as a result of reasonable administrative action undertaken in a reasonable manner, and liability is therefore excluded by section 5A of the Act.

10. The issues for the Tribunal to consider are:

    (a)Whether the Applicant has sustained an injury that was significantly contributed to by her employment with the Department.

    (b)If the Applicant suffered a psychiatric condition that was significantly contributed to by her employment with the Department, whether liability is excluded by section 5A of the Act.

    Date of onset

11. Counsel for Ms Smith asked the Tribunal to revoke the revocation decision made in 2017 which would restore the original 2014 determination. To do so would have left the deemed date of injury as 23 July 2013 which was inconsistent with his submission that the evidence shows that Ms Smith was suffering a psychiatric condition in 2007 which was attributable to her employment.

12. The Tribunal understood both parties to accept that the date of onset was sometime in 2007. It is therefore unnecessary to set out Ms Smith’s history in detail after that date.

    Consideration of the evidence

13. The evidence included 778 pages of documents produced by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), further correspondence and forms, extracts from summonsed material, medical reports, and an unsigned statement from Ms Smith that was prepared in 2015 and sent to Comcare under cover of a letter dated 17 March 2015 from Ms Smith’s solicitors. Ms Smith gave oral evidence and was cross-examined at length. Doctors Jungfer and Champion, consultant psychiatrists, gave oral evidence, in addition to providing written reports.

14. Ms Smith was born on 21 October 1980. She had a history of asthma and associated respiratory infections going back to childhood. She had been admitted to hospital for treatment as a child but did not remember that. She uses Ventolin and Seratide preventatively. She had a child in 2002. The relationship with the father of the child ended in about 2003. She has been primarily responsible for looking after the child. She worked at Symbio Wildlife Park at Helensburgh for about three years before joining the Department.

15. Dr Malone carried out a pre-employment health status assessment on 24 April 2006. The doctor found that Ms Smith suffered from mild asthma but had not had an attack for 10 years and assessed Ms Smith to be medically capable of performing all duties of “the specified job”. The job was not identified in the report.

16. Ms Smith lived at Albion Park when she commenced work with the Department in May 2006. She drove two hours each way to work.

17. On 21 August 2006, Ms Smith’s other employment as a presenter at Symbio Wildlife Park was terminated, on her evidence, due to her taking excessive personal leave from the Department. That caused her a degree of financial concern.

    Identification of Ms Smith’s autoimmune condition

18. Ms Smith became unwell in around October 2006. On 7 September 2007, Dr May, consultant rheumatologist, reported to Dr Garrick, neurologist, at St Vincent’s Clinic in respect of Ms Smith. The report was produced in response to a summons in these proceedings.

    She was well until October 2006, when she developed lower leg swelling, discomfort and rash, described as lumps and bruises. At the time this was diagnosed as erythema nodosum. The problem resolved within 6 weeks, without any further episodes. She recalls no preceding infections or antibiotics, other drugs. She has a history of asthma and atopy, with intermittent chest/sinus infections. These seem to be worse and more frequent in the last 12 months, and as a result she feels frustrated and is losing time at work, a new position for her.

    ….

19. Ms Smith’s general practitioner’s pathology request on 8 December 2006 included “rheumatoid factor” which may indicate that a person suffers from an autoimmune disease.[1]

    [1] >

    Ms Smith completed her six month probation in January 2007. She had ten days of personal leave due to ongoing medical condition, moving house, and other unspecified reasons during that period.

20. Ms Smith reported that she became ill in 2006 around the time her grandfather was diagnosed with cancer. He died in February 2007. She claimed that she was told her request for a week’s leave was excessive and was requested to provide a death certificate which disturbed her. She took bereavement leave from 5 to 12 February 2007.[2] There is no corroborative evidence about the request for a death certificate.

    [2] T-Document 22, page 303.

21. She consulted her general practitioner again on 17 February 2007.

    Ms Smith’s psychiatric condition

22. On 3 April 2007, Dr Das, general practitioner, certified Ms Smith to be unfit for work until 4 April 2007 because of “Anxiety/stress/depression”. He did not relate those conditions to her employment or any other stressor. Dr Das prescribed “Stilnox Tablet 10mg 1”.[3] Dr Franco, general practitioner, noted on 25 March 2008 that Stilnox had ceased. Ms Smith claimed that she had seen Dr Das about feeling bullied at work and stated that she was extremely stressed, anxious and depressed.

    [3] Stilnox is prescribed for the short term treatment of insomnia in adults; >

    The Patient Health Summary from Wollongong Medical Centre which contains the records referred to above, begins on 15 June 2004. Ms Smith attended the centre on 16 occasions before 3 April 2007. Dr Das’s certificate is the first reference to “Anxiety/stress/depression”.

    Late attendance and personal leave

23. On 11 May 2007, Nicole Cecil, Ms Smith’s supervisor had a formal feedback session with her about her attendance record over the previous two months. She signed a record of the formal feedback session on 28 May 2007. Her agreed hours of duty were 7:30 am to 4:00 pm daily. Examples of lateness from 1 May to 9 May 2007 show she had been late once by 10 minutes, 15 minutes, 35 minutes and 55 minutes, and 45 minutes twice. One of the main contributing factors was that she lived at Albion Park and it could take up to two hours to get to work:

    Christina is aware that it was her decision to take up employment with Quarantine and travelling to and from work is her responsibility.

24. She was to arrive at 7:30 am each day from Monday 14 May 2007 and brief weekly meetings with her supervisor were to be held to discuss each week’s time keeping. She was advised that continued lateness might be recorded as leave without pay and she may be placed on a performance improvement plan if late arrivals continued, which was an option to be avoided if possible. If attendance issues were not satisfactorily addressed, she will be given to the application of other sanctions. Her high level of recreational and personal leave was noted and she was requested to seek personal leave in advance where possible. It was noted that Ms Smith was presenting supporting documentation with most of her leave requests:

    Christina does have certain health issues and we both agreed that Christina would benefit from a report from her specialist. Christina is currently progressing with this matter.

25. The reference to “her specialist” appears to be reference to Dr John Riordan to whom Ms Smith was referred by her general practitioner on 22 May 2007.

26. The record of the formal feedback session noted that Ms Smith had had a very difficult time personally over the last few months with a death in the family and her own personal financial and health issues. “This has resulted in a general lack of focus over the last few months”. It recorded that she would lose her driver’s licence for 3 months on 16 June 2007 which would impact on her work duties and she was aware that she had to advise Human Resources (HR). During her evidence, Ms Smith said that she moved to stay at Coogee three nights a week when she lost her licence.

27. Ms Cecil’s hand written comment at the end of the document was:

    Christina handles constructive feedback in a very professional manner. She is already showing improvements in attendance and the processing of flex leave.

28. On 29 May 2007, Ms Smith’s application to engage in outside employment doing bar work 5 hours per week on Friday or Saturday evenings was approved.

29. On 14 June 2007, Ms Smith was issued with a letter of direction to provide supporting documentation for all future unplanned absences until 14 September 2007 due to her ‘high level of personal leave usage.’ Ms Smith was issued a letter of direction to provide supporting documentation on five more occasions: 14 September 2007, 30 November 2007, 29 February 2008, 17 November 2010 and 18 February 2011. Each was valid for three months.

30. Ms Smith took recreation leave from 18 to 22 June and 25 to 29 June 2007. She took personal leave on 16 July 2007 without a certificate which was not to count as service because she was sick. She took personal leave from 18 to 20 July 2007 with a certificate for “flu”. On 30 July 2007 she took miscellaneous leave without pay, which was not to count as service. On 20 August 2007 she took recreation leave.

31. Ms Smith claims in July 2007 she went to a medical centre in Mascot presenting with bruising and lumps on legs and arms and difficulty walking ‘due to inflammation’. She says her ‘rheumatoid factor was noted to be high’ indicating there may be ‘underlying immune issues’.

    Admission to Sydney Hospital

32. Ms Smith was admitted to Sydney Hospital on 31 August 2007 under the care of Dr Garrick. The clinical notes dated 6 September 2007 include:

    Pt reports hx anxiety and previous ‘nervous breakdown’

    Poor sleeping patterns

    Imp ?underlying CT disease

    +/- anxiety/depression disorder

    Plan R/V Dr May

33. In her report of 7 September 2007, Dr May stated that Ms Smith had been admitted for assessment of two to four weeks of objective and unexplained visual loss, affecting the right eye. Dr May also wrote:

    Psycho-social issues, especially in the last year, are noted. She has a past diagnosis of depression. She does not have obvious manifestations of anxiety. She is understandably frustrated by chronic poor health.

34. When cross-examined about the references in the clinical notes to a previous nervous breakdown and diagnosis of depression in Dr May’s 7 September 2007 report, Ms Smith said that they might refer to when she saw Dr Das.

35. Dr Brown certified Ms Smith unfit for work for the period 28 August 2007 to 1 October 2007. Two certificates were issued on 14 September 2007. One referred to “autoimmune process” and the other referred to “a medical condition”.

36. On 19 September 2007, Helen Kojevnikova, HR Advisor at Crewe Place in Rosebery, wrote a letter to Ms Smith noting her absence from work because of a medical condition, that her last contact with the Department was 13 September 2007 and the information was that the earliest she would return to work would be 25 September 2007. Before requesting a medical certificate for the period of absence, a return to work date and up to date phone contact details, Ms Kojevnikova wrote:

    Without compromising your privacy or medical condition, we need to get a better understanding of your situation to develop an appropriate AQIS response to support you in your return to work.

37. Ms Kojevnikova noted that Ms Smith had insufficient Personal Credits to cover her absence but there were options they could discuss.

38. On 20 September 2017, a letter was sent to Mr Smith’s GP requesting assistance to identify suitable duties for her return to work.

39. On 24 September 2007, Dr Foran, general practitioner, certified Ms Smith fit for work from 25 September 2007.

    Post hospital admission return to work

40. Ms Smith claimed that she continued to feel bullied and victimised for being sick and treated as though her illness was illegitimate. She claimed to have requested stress leave and referred to an attachment to her statement. The attachment does not reflect that claim.

41. On 24 September 2007, Ms Smith wrote to the Department advising that as a result of her ill health over the past twelve months, she had utilised all of her personal leave entitlement and due to financial hardship she requested to use her purchase leave of fifteen days to cover her period of hospitalisation. She was absent for a further five days which “I will submit as personal leave without pay”. She also wrote:

    I am a single mother and have a responsibility to care for my 5 year old child, I have been unable to pay her child care fee’s (sic) as I have not had any income to support these payments.

42. On 3 October 2007, Andrew Burton, Assistance HR Manager NSW, emailed a rehabilitation officer in the HR Branch to request Ms Smith’s records for the purpose of providing the medical records to the occupational physician undertaking a possible Fitness for Duty assessment for Ms Smith. The email referred to Ms Smith’s increased personal leave, underlying connective tissues/systemic inflammatory disease affecting eyesight, and being highly stressed due to personal circumstances. The rehabilitation officer referred to the pre-employment health status assessment dated 24 April 2006 and confirmed there was no other medical report on Ms Smith’s file.

43. On 15 October 2007, in response to an email from Ms Kojevnikova requesting advice on whether Ms Smith is back at work, Nicole Cecil sent an email to Ms Kojevnikova and Andrew Allsop, NSW Freight Clearance Co-ordinator, recording that Ms Smith had returned to work on Friday 12 October 2007 and had completed a leave without pay form for Wednesday half day and Thursday full day. Ms Cecil wrote that she had asked Ms Smith “casually” whether she was still working “at the Pub or Symbio”. Ms Smith said she was not working outside and that her health was fine and she can perform all of her normal duties. Ms Cecil put Ms Smith on the roster for Customs House for the following week “per the standard Roster for level 2 and 3s”. Ms Smith had responded that she cannot work there “due to sports commitments 3 days each week”. Ms Cecil advised Ms Smith that she needed to work there “like everybody else” and that she would need to speak to Andrew Allsop about that. She noted that the letter requesting documentation for high usage of personal leave dated 14 June 2007 had expired and she understood a new letter was being prepared. “The sooner we can issue this letter the better”.

44. Ms Smith’s version of events was that she had a meeting with Nicole Cecil where Ms Cecil said that she could confide in her, and asked whether she was still working at Symbio or a pub. That upset her because the implication was that her sick leave was not legitimate. She was completely broken and depressed.

    Use of gym at Customs House

45. Ms Smith claimed the following in her written statement. On or about 24 October 2007 she was appointed to work off site with a variation in hours which prevented her from completing her regular fitness regime, which was part of her plan for managing her sick leave and that it was supported by her doctors. Her request for an exemption on medical grounds to allow her to continue her “health/fitness regime & family commitments” was declined. She felt unsupported. She continued to work at Customs House (located at Sydney Airport) and joined the on-site gym and was quite happy. No medical evidence supporting her claim was referred to.

46. She claimed that she was advised that she was not allowed to use the gym during her lunch break and said that she could use her two ten minute breaks to consume food. She claimed that she was not allowed to continue using the gym despite the customs manager advising that she was covered by insurance and having approval in writing. She felt victimised and bullied because she was denied the opportunity to improve her health.

1. Ms Smith provided no documentation to support her claims set out in the previous two paragraphs. In a letter dated 22 December 2016 to the Comcare Claims officer, Renee Skilling of the Department wrote that the Department had been unable to locate any evidence to support Ms Smith’s statement about the use of the gym at lunch time and confirming that the gym was the responsibility of Customs.

   Fitness for Duty

2. In a letter to Dr Kong of Health Services Australia dated 15 October 2007, Ms Kojevnikova requested a medical review of Ms Smith. She included the following information:

   ·Ms Smith’s normal hours as a non-shift AQIS Inspector were 7:30 am to 4:00 pm Monday to Friday.

   ·Ms Smith’s requests to engage in outside employment activities as a bar tender on Friday or Saturday nights for 4-5 hours and as a volunteer in the wild-life park were approved from May 2007 to May 2008.

   ·The reason for the referral was Ms Smith’s history of several, unplanned absences from work. In her six month probation period she had ten days personal leave due to ongoing medical condition and she had been advised if her medical condition continued to have an adverse effect on her attendance, a Fitness for Duty would be considered to gain better understanding of the impact of that condition on her attendance and performance of her duties and to identify measures to be taken by Ms Smith and AQIS to achieve satisfactory attendance and performance.

   ·From February 2007 to September 2007 Ms Smith had 42 days of personal leave, including leave without pay.

   ·On 17 (sic) October 2007, Ms Smith expressed her concern to the supervisor that being rostered at Customs House (Sydney International Airport), was causing her significant stress that has impacted on her driving ability and increased chances to be involved in a car accident.

3. Dr Dwight Dowda, senior occupational physician, prepared the requested report which was dated 15 November 2007, the date he saw Ms Smith. He wrote:

   ·Ms Smith does not like the work at Crewe Place, Rosebery where she is on the front counter or in the back office doing paper work and working on the computer. It is a very depressing environment and the staff morale is poor. She finds the work boring but not difficult. She enjoys client interaction and would prefer a physically oriented job and more interaction.

   ·She was driving two hours from Albion Park where she lived with her parents and six year old daughter, but was currently staying in Sydney with friends during the week near work because she is too tired to commute because of her illness. She had lost her licence for three months because of fines. It was reinstated in September. Her normal work hours were 7:30 am to 4:00 pm with a 30 minute lunch break, two 10 minute breaks which she misses, five days a week.

   ·Dr Dowda expressed reservations about Ms Smith’s capacity to travel two hours either way in a day from Albion Park to Crewe Place on top of her 7+ hour working day because of the lassitude/fatigue associated with the autoimmune condition.

   ·She tried to do training sessions of boxing three to five times a week for one to two hours a session. Intermittently she has cancelled them because of her health problems She enjoys dancing once a week.

   ·On the day Dr Dowda saw her, her living circumstances were changing following the death of her grandfather; six people would be living in the one house.

   ·Ms Smith’s autoimmune condition was sporadic but had sufficient impact upon her general health to leave her with general lassitude or fatigue, along with intermittent symptoms and flare ups characterised by fleeting arthritis.

   ·The nature of an autoimmune condition such as she describes, although no specific diagnosis has been given, in the general sense is unlikely to be aggravated by the work of the nature she is doing.

   ·The lassitude/fatigue appears to be sufficient on occasion to impact upon her capabilities not only with respect to her work capacity but also to carry out activities of daily living.

   ·The impact of the fatigue that she experiences in association with her autoimmune condition is the significant factor impacting her capacity for sustained attendance at work on a regular basis.

   ·She described considerable concerns associated with her work environment and her perception of and reaction to the work environment is such that she appears to have an element of anxiety and/or stress associated with her work environment. It is possible in this setting that elevated levels of stress could contribute to exacerbation of symptoms when she has an aggravation of her autoimmune condition. Dr Dowda could see no other reason why her work on a fulltime basis would be aggravating the condition.

   ·It seems that she reaches a point approximately one day in the week where her general fatigue impacts sufficiently upon her to render her incapacitated to carry out her normal work activities effectively and for that matter her normal activities of daily living. Based on her history, it would be likely that she could manage a 4 day week with normal hours each day, depending on whether she was experiencing symptoms associated with her autoimmune condition.

4. Dr Dowda referred to a report from Dr May dated 7 September 2007. A copy of that report had been sent to “LMO”, which is understood to be the local medical officer or general practitioner. It is accepted that a copy of that report was provided to the Department in response to the letter dated 20 September 2007 to her GP requesting assistance to identify suitable duties for Ms Smith’s return to work.

5. Ms Smith claimed that she “cried non-stop to the doctor”, telling him that she felt extremely stressed and depressed due to being treated unfairly regarding her illness. Dr Dowda did not record non-stop crying.

6. On 26 November 2007, Andrew Burton wrote to Dr Kong seeking clarification of some matters relating to Dr Dowda’s report. He requested further answers in relation to Ms Smith’s fitness to undertake outside employment “without affecting her AQIS work attendance and performance”, her fitness to work full-time versus part-time non-shift work which is an option “in response to temporary personal needs”, and her fitness to drive extended distances in light of her visual condition. He stated that “Ms Smith’s current medical condition … is having an adverse impact on her AQIS work attendance”. The response to this request is not before the Tribunal.

7. In an email dated 29 November 2007, from Nicole Cecil to Ms Kojevnikova, with a copy to Andrew Allsop, Ms Cecil wrote:

   Wed 28th Nov arrived for work on time

   Found her crying in tea room

   She is not feeling well – always tired just wants to sleep

   She is concerned about her high leave usage, she is also worried about lack of money

   Andrew and I both said your health is the most important issue

   Went home at 7.45 am.

   Thursday 29th Nov

   Left phone message… I will not be in today.

   Ps She is currently residing with a friend in the local Roseberry (sic) area.

8. On 30 November 2007, Julie Sims, assistant regional manager, wrote to Ms Smith about her discussion with Andrew Allsop on that day concerning her high level of personal leave usage, and directing her to provide certain documentary evidence for personal leave absences for the following three months.

9. In an email dated 4 December 2007 to Ms Smith, copied to Ms Kojevnikova and Ms Cecil, Mr Allsop set out the matters discussed and the outcomes of discussion at a meeting on that day. It included reference to very specific reporting requirements for absences and referred to the issued direction letter on 30 November 2007. It concluded:

   It has been observed that you are keen to learn, are willing to assist with meeting front counter operations and the above discussed matters should be viewed as area for improvement.

   Thankyou (sic) for your support and I encourage you to develop an open and transparent communication with all the supervisory team within front counter.

10. Ms Smith’s evidence was that she felt that she was doing everything possible to manage her illness and always provided medical evidence and did not understand why it was being treated as a performance issue and did not want to sign the form, which the Tribunal understands to be the 30 November 2007 letter from Ms Sims, because she was feeling harassed about being sick. Ms Smith claimed that Mr Allsop asked her to reconsider her employment and suggested the option of Centrelink benefits which caused her extreme offence but she was too afraid to comment further.

11. Dr May wrote a report to Dr Garrick dated 21 January 2008. It appears Ms Smith had consulted Dr May on that day. Dr May recorded details about Ms Smith’s admission to Sydney Hospital in August 2007 and then stated that Ms Smith described ongoing visual symptoms and Dr May had asked her to attend Sydney Hospital Outpatient Department for ophthalmology review. Dr May stated that Ms Smith would also see Dr Gallagher later in the year for a procedure in relation to chronic sinusitis. She wrote:

    She has had transient ankle and wrist pain but otherwise has no symptoms of inflammatory arthritis currently. … Nurofen has proved helpful at times when there has been musculoskeletal pain and would appear to be sufficient medication for now.

    Psychosocial factors operating during her admission appear to have improved and she certainly had a stressful year last year with things looking up now.

12. Dr May wrote a letter addressed “To Whom it May Concern”, dated 25 February 2008. She wrote:

    Ms Smith has attended today and is fit to resume work full time and at full duties. Ms Smith has no symptoms or disorder to prevent her form (sic) conducting usual duties as a quarantine officer. There is no specific diagnosis of immune disorder or arthritis. She has been discharged from the clinic, without requirement for medication. She is welcome to attend if any new concerns arise.

    Clinical opinions on psychiatric condition

13. Ms Smith saw a psychologist for the first time on 23 July 2013 on the advice of a rehabilitation provider, Ms Fiona Green. A meeting with a rehabilitation provider had been arranged as part of an Attendance Support Plan prepared in a meeting on 10 June 2013. The Attendance Support Plan noted Ms Smith’s medical condition notified to the Department in 2006, and it was an “ongoing … issue”. Issues identified were her daughter’s health, her health, and personal issues. The actions agreed were that Ms Smith would attend her specialist and obtain an up to date medical prognosis and treatment options and the major concern was her daughter’s health “first beforehand”. A meeting with a rehabilitation provider, Ms Green, was organised for Ms Smith on 27 June 2013. Ms Green’s report was dated 23 July 2013.  It is not apparent when Ms Smith received the report.

14. Ms Smith left work on 23 July 2013 after what she described as a panic attack because of  “extreme anxiety and stress at work”. She was on leave without pay from about 11 November 2013 until 1 August 2014.

15. Ms Smith attended a total of five sessions with that psychologist, Ms Aslin, who prepared a letter “To Whom It May Concern” dated 1 July 2014 and an undated report. In the letter she wrote:

    ·Ms Smith attended due to being bullied and harassed at work because of her constant absences due to chronic illness and her daughter’s seizures (sic) and hospitalisation.

    ·On returning to work, Ms Smith’s “acting higher duties” were taken off her without consultation because of her high personal leave usage.

    ·Ms Smith was extremely distraught because she felt discriminated against when she had a legitimate medical condition and caring responsibilities for her sick daughter.

    ·Human Resources in Canberra decided that she had been treated unfairly and she received back pay and would be moved for her own wellbeing.

    ·Ms Smith was still in contact with other employees and management who had proved difficult in the past. At this point she was experiencing panic attacks.

    ·She asked for and was refused a transfer. They said that she could take leave without pay which was her position to date.

16. The undated report from Ms Aslin quotes a claim reference number and a claimed condition of “anxiety, PTSD, depression”. In addition to the matters set out in the previous paragraph, Ms Aslin provided the following information:

    ·Ms Smith suffers from “acute stress disorder” and has symptoms of panic disorder.

    ·Ms Smith’s autoimmune disease in 2006 could have predisposed her to the stress she had been experiencing at work. Ms Aslin was unsure whether that condition was still present.

    ·Employment stressors were: demoted in position, supervisor caused problems, no communication from manager.

    ·Non-employment stressors were: separation from partner, 11 year old child to attend to, autoimmune disease onset, living with parents.

    ·It is difficult to assess the level of contribution of each factor.

    ·Ms Smith could return to employment on a part-time basis as long as she believes she is supported by management, is placed in a harmonious environment and has a conducive relationship with other staff, in conjunction with regular counselling independent of work.

    ·Ms Smith should continue with her antidepressant and needed to attend psychological appointments weekly for at least 2 months and would then need to be reassessed.

17. Ms Julijana Stanojevic, psychologist, commenced counselling with Ms Smith on 18 June 2014. Ms Smith attended a session on 25 June 2014. Ms Stanojevic was located in the Wollongong area where Ms Smith lived. Ms Aslin was located in the Miranda area. Ms Stanojevic provided a one page Psychological Summary Report dated 10 July 2014 in which she wrote:

    ·Ms Smith reported concerns about events that occurred in her work environment of which she had kept a record.

    ·Her symptomatology (which was listed) most clearly matches an Adjustment Disorder with Anxiety under DSMIV.

18. There was no evidence of a contemporaneous record of workplace events kept by Ms Smith.

19. The reports of Ms Aslin and Ms Stanojevic were enclosed with the Workers Injury Claim form dated 19 June 2014 and a WorkCover Certificate of Capacity dated 25 June 2014, and served on the Department under cover of a letter dated 15 July 2014 from Ms Smith’s solicitors.

20. Associate Professor Davies, psychiatrist, assessed Ms Smith at the request of the Respondent and the Department. He prepared reports dated 27 August 2014, 16 June 2016, 6 September 2016, 29 September 2016, 5 November 2018 and 4 December 2018. He saw Ms Smith on 25 August 2014, 14 June 2016, 29 August 2016 and 1 November 2018.

21. In his report dated 27 August 2014, Associate Professor Davies’ wrote:

    (Ms Smith) presents with a complex history of auto-immune disorder complicated by depression and anxiety. Her recurring symptoms have led to excessive time off work, which has imperilled her employment because although a competent employee when at work, she is unreliable in her attendance. This has led to action by her employer, which has created further stress and aggravation of her symptoms as Mrs Smith seems to lack insight into the issues involved for the employer.

    …

    The question of diagnosis is complex as there is no clear contemporaneous medical documentation of her auto-immune state. At least a copy of her discharge summary from the Sydney Eye Hospital should be sought. Auto-immune and psychological symptoms are commonly both present because of psychosomatic interaction and Mrs Smith noted that since she has left work her symptoms have improved. If her present symptoms are taken in isolation I would think the most appropriate diagnosis is of Mild Depressive Disorder. (ICD 10)

    It would be reasonable to date the onset of Mrs Smith’s illness from her admission to hospital in 2007.  

    …

    If it is accepted that Mrs Smith’s condition is psychosomatic (i.e. involving an interaction of stress and her immune system) then a psychological component is likely to have been present from the onset of the disorder. I note that there is evidence of potentially stressful interactions in her personal life involving both her relationships and care for an autistic child. However, it is difficult to be definitive without contemporaneous evidence.

    …

    I note that there were a number of personal issues affecting Mrs Smith early in her career with the Department and these are likely to have acted synergistically with other stressors and any underlying organic illness.

    …

22. In his 16 June 2016 and 6 September 2016 reports, Associate Professor Davies’ opinion was that Ms Smith’s depressive disorder had been superseded by the diagnosis of Agoraphobia with panic disorder.

23. Associate Professor Davies addressed specific questions from the Comcare delegate in his report dated 29 September 2016. The Comcare delegate set out incidents Associate Professor Davies had provided of Ms Smith’s employment between 2007 and 2013:

    ·Feeling bullied and harassed due to needing to take sick leave as a result of an auto-immune disorder.

    ·Being refused a promotion despite having acted in a higher role.

    ·Being criticised for taking time off work after her daughter had a seizure.

    ·Having her higher duties revoked.

    ·Having a panic attack at work.

    ·Receiving an apology but still being paid at a low rate.

    ·An application for compassionate transfer to Wollongong not being approved.

24. The question was whether Ms Smith’s “current condition related to her employment with the Department” during this period and if so, sought specific details in respect of the contribution to her condition in 2016.  Associate Professor Davis responded:

    Mrs Smith’s current condition originally derives from these issues with the Department.  What has happened since is that these symptoms, and particularly her problems with anxiety have been reinforced by secondary avoidance behaviour, which is presently the major problem to be addressed.

25. Ms Smith relied on reports dated 5 November 2018 and 4 December 2018. In the November report, Associate Professor Davies said:

    ·(Ms Smith) originally manifested a depressive disorder following problems within the workplace and the anxiety component of this had been reinforced by her avoidant behaviour.

    ·There appears to have been a small improvement in this since he last saw her which is attributable to some behaviourally oriented psychotherapy.

26. The December 2018 report was a response to questions from the Department which may be described as quibbles with his report. It does not cast light on the issue to be decided. He was critical of the Department, saying that there seemed to be a degree of inflexibility regarding any attempt to modify the work environment to allow a return to work.

27. Ms Smith engaged extensively with external rehabilitation consultants and related providers from mid-August 2014 to April 2017. In her report dated 29 August 2014, Michelle Barratt, senior rehabilitation consultant/registered psychologist, noted that Ms Smith lost her grandfather to cancer, with whom she was very close, and this upset her greatly.  

28. Dr Geoff McDonald, consultant psychiatrist, assessed Ms Smith at the request of the Department in the context of her fitness to return to work and rehabilitation. He saw her on 25 November 2014 and 9 June 2015 and prepared reports dated 3 December 2014 and 23 June 2015. He was not asked to consider the date of onset of her condition. He described Ms Smith’s premorbid personality as a shy person who loved animals and was physically fit. He reported that in 2007 she was under stress, her grandfather (to whom she was very close) having died of cancer. She told him she believed that she became depressed about 2009 and developed anxiety about 2011.

1. Ms Smith was referred to Dr Victoria Kim, consultant psychiatrist, by her general practitioner. She prepared two reports dated 8 April 2015 and 21 April 2015. In her first report Dr Kim reported that Ms Smith presented with up to eight years’ history of gradually worsening depressive and anxiety symptoms in the context of work place harassment and lack of support. In Dr Kim’s opinion, the likely diagnosis was “Major Depressive Disorder with marked anxiety symptoms.” Dr Kim’s second report explores treatment options.

2. On 2 June 2015, Dr Patricia Jungfer, consultant psychiatrist, saw Ms Smith and wrote a report at the request of Ms Smith’s solicitors. Ms Smith’s solicitors sent Dr Jungfer a briefing letter and several reports from Dr May and Associate Professor Davies, reports from Ms Aslin and Ms Stanojevic, and a statement from Ms Smith that had been given to Comcare. Dr Jungfer was advised that Ms Smith’s workers compensation claim had been accepted and ongoing payments made from 22 July 2014. Dr Jungfer was asked to provide her views as to whether Ms Smith was incapacitated for work during the period 11 November 2013 to 22 July 2014. She was not asked the date of clinical onset.

3. Dr Jungfer reported that Ms Smith had developed a non-specific autoimmune disorder in 2006, had substantial periods of time off work, management became very critical and micromanaged her to the point of her being harassed and bullied. She wrote:

   In response to the stress at her place of work, (although some symptoms may have arisen within the context of autoimmune disorder), she developed anxiety symptoms in 2007 and these progressed to incorporate depression, and agoraphobia. Her current clinical presentation is consistent with a major depression, and a panic disorder with secondary agoraphobia

4. Ms Smith began seeing Ms Cartwright, clinical psychologist, on 3 November 2016 because her case manager at the insurance company had advised her to see a clinical psychologist. On 17 December 2016, Ms Cartwright sent Comcare an email in response to a request for information. She prepared a report dated 6 March 2017 at the request of Ms Smith’s lawyers. She reported Ms Smith’s history of autoimmune disorder and lengthy history of lack of support and micro-management at work. In her opinion, the development of her anxiety and depressive symptoms were due to the culmination of a number of work incidents over time rather than to one specific incident.

5. Ms Smith saw Dr Lim, consultant psychiatrist, on 18 May 2017, in the context of assessing her fitness for duty. Dr Lim prepared a report dated 23 May 2017 for the Department. He diagnosed major depressive disorder and panic disorder. Dr Lim was not asked to consider the date of onset and based his opinion on the history reported by Ms Smith.

6. Dr Champion’s opinion is summarised at the beginning of this decision. His report was comprehensive. It included Ms Smith’s unsigned statement of evidence dated 2015, an undated statement from an officer of the Department, consideration of Dr Dowda’s report of 15 November 2007 and reports from Dr May, Fiona Green, Ms Aslin and Ms Stanojevic, Associate Professor Davies, Dr McDonald, Dr Jungfer. He referred to epidemiological studies which he said were consistent with his opinion that Ms Smith’s psychiatric disorder most probably resulted from her underlying physical illnesses associated with immune system dysfunction, that is asthma and atopy and later, autoimmune disorder developed in 2006.

7. Ms Smith’s solicitors requested Dr Jungfer to comment on Dr Champion’s report. Her report was dated 6 April 2018, Dr Jungfer wrote:

   Ms Smith has a long standing history of asthma and atopic state but only developed the anxiety/depressive problems after issues arose regarding the amount of leave that she was taking related to her autoimmune disorder. If her anxiety and depressive condition was related to this primary diagnosis of asthma then it would have been expected prior to the work related stress.

8. During her oral evidence, Dr Jungfer said that the more remote the onset of psychiatric condition was from Ms Smith’s autoimmune disorder, the less likely that there was an association.

   Conclusion

9. Ms Smith’s case was that her employment caused her psychiatric condition. In her 2014 workers’ compensation application she specified that it began in 2006. At the hearing, her case was that the date of clinical onset was sometime in 2007. Various WorkCover - certificates of capacity record a date of injury in January 2007. The case was not put that she had suffered an aggravation of an existing psychiatric condition.

10. A difficulty with the expert evidence in this case is that Ms Smith did not consult a psychologist or psychiatrist until 2013, six years after she claims she first suffered that condition.  She continued to suffer symptoms from the unspecified autoimmune condition, she had personal challenges, and she continued to work for the Department and outside the Department.  A summary chronology prepared by the Department for the period 24 April 2006 to 24 July 2014 is 14 pages long. The focus of the expert evidence was on her condition as it was when she was assessed or treated by the relevant clinician.  It was not until the hearing that the focus shifted to 2007.

11. Ms Smith’s grievance against the Department was well entrenched by 2013. She blames her employment for causing the unspecified autoimmune disease and her psychiatric condition, and the loss of her job. Her witness statement dated 2015 sets out a detailed history of work incidents which caused her distress. She has given a generally consistent history since July 2013.  However, her evidence was not reliable.  For example, she claimed that Dr May had recommended that she be moved to a work role that was not office based.  None of Dr May’s reports recommend a role that was not office based.  Her claim that she attributed her anxiety/depression to her employment in April 2007 is not supported by Dr Das’s medical certificate.  She downplayed the impact on her of events in her personal life.  

12. The Tribunal has the benefit of contemporaneous documentary evidence not available to clinicians. The onset of Ms Smith’s unspecified autoimmune disorder was around October 2006, not August 2007.  She continued to suffer symptoms of that condition from time to time until after 2014. The first recorded symptoms of anxiety/depression were 3 April 2007. That was after the death of her grandfather, which was clearly a very difficult time for Ms Smith.

13. The Tribunal concludes that Ms Smith’s symptoms of anxiety/depression recorded on 3 April 2007 arose in the context of the autoimmune disorder. There is a close temporal connection between the autoimmune disorder and the first report of symptoms of anxiety/depression. 3 April 2007 is the date of clinical onset of Ms Smith’s anxiety/depression.

14. Dr Champion’s evidence supports that conclusion. As does the following evidence of Associate Professor Davies and Dr Jungfer.

15. Associate Professor Davies’ analysis was persuasive:

    ·Ms Smith had presented with a complex history of auto-immune disorder complicated by depression and anxiety.

    ·Autoimmune and psychological symptoms are commonly both present because of psychosomatic interaction.

    ·If it is accepted that Mrs Smith’s condition is psychosomatic (i.e. involving an interaction of stress and her immune system) then a psychological component is likely to have been present from the onset of the auto-immune disorder.

    ·There were a number of personal issues affecting Mrs Smith early in her career with the Department and these are likely to have acted synergistically with other stressors and any underlying organic illness.

16. In her June 2015 report, Dr Jungfer qualified her opinion that Ms Smith developed anxiety symptoms in response to the stress at her place of work in 2007: “although some symptoms may have arisen in the context of autoimmune disorder”. The corollary of Dr Jungfer’s statement during her oral evidence set out above, is that the closer the onset of the psychiatric condition was to the onset of Ms Smith’s autoimmune disorder, the more likely that there was an association.  Dr Junger’s history of onset of the autoimmune condition was not correct.

17. The contemporaneous records, including the leave records and the formal feedback session, do not support a finding that Ms Smith suffered anxiety/depression that was contributed to, to a significant extent, by her employment with the Department.

18. It is unnecessary to consider whether liability is excluded by section 5A of the Act.

    Decision

19. The reviewable decision is affirmed.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

.............................[SGD]...........................................

Associate

Dated: 5 November 2019

Date(s) of hearing:	3 and 4 April 2019
Counsel for the Applicant:	Mr L Gray
Solicitors for the Applicant:	Mr D Potts, Kells Lawyers
Counsel for the Respondent:	Ms D Forrester
Solicitors for the Respondent:	Ms A Fernandes, Sparke Helmore Lawyers