Speakman and Telstra Corporation Limited (Compensation)
[2016] AATA 856
•31 October 2016
Speakman and Telstra Corporation Limited (Compensation) [2016] AATA 856 (31 October 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0438
Re
Barbera Speakman
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 31 October 2016 Place Brisbane I affirm the decision under review.
................................[sgd]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – whether applicant has an ongoing entitlement to compensation – applicant previously granted compensation for medical expenses and incapacity for work – determination later made that respondent no longer liable – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 64
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
31 October 2016
INTRODUCTION
Ms Barbera Speakman (“the applicant”) seeks a review of a determination of Telstra Corporation Limited (“the respondent”) that from 12 November 2014 onwards the respondent was not liable to pay the applicant compensation for medical treatment and incapacity for work. I have to determine whether the applicant’s injury has, since 12 November 2014 to the present date, resulted in a need for medical treatment and an incapacity for work.
BACKGROUND
On 18 November 2007, the applicant commenced employment with the respondent as a full-time Call Centre Operator/Consultant.[1] On 21 December 2012, the applicant was diagnosed as suffering from an acute stress disorder and referred for psychological counselling.[2]
[1] Exhibit C, Statement of Ms Speakman dated 2 June 2016 at [12].
[2] Exhibit A, T-Documents, T8 at p. 47.
On 18 January 2013, the applicant lodged a claim for workers' compensation in respect of “acute stress disorder”.[3] The applicant stated that the injury arose “due to bullying at work”.[4]
[3] Exhibit A, T-Documents, T5 at p. 25.
[4] Ibid.
On 15 May 2013, the respondent made a determination accepting liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of an “adjustment disorder with anxiety” condition deemed to have been sustained on 21 December 2012.[5] The applicant received compensation for medical expenses and for incapacity for work under ss 16 and 19 of the Act.
[5] Exhibit A, T-Documents, T13.
On 12 November 2014, the respondent made a determination that it was not then presently liable to pay compensation for medical expenses or incapacity for work.[6] On 10 December 2014, the applicant sought reconsideration of this determination.[7] On 9 January 2015, the respondent made a determination affirming the determination dated 12 November 2014. The determination of 9 January 2015 is a reviewable decision under s 64 of the Act.
[6] Exhibit A, T-Documents, T32.
[7] Exhibit A, T-Documents, T33.
ISSUES
I have to determine whether the applicant had an ongoing entitlement to compensation under the Act for an injury as of 12 November 2012 and thereafter. This involves a consideration of three issues. First, whether, as at 12 November 2012, the applicant continued to suffer the injury for which liability was previously accepted. Second, whether, as at 12 November 2012, the applicant was incapacitated for work. Third, whether, as at 12 November 2012, the applicant was incapacitated for work as a result of the injury for which liability was previously accepted. The third issue will only arise for consideration if the preceding two questions are answered in the affirmative.
LEGISLATIVE FRAMEWORK
Section 14(1) of the Act provides that, subject to Pt 2 of the Act, an employer is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A(1)(a) of the Act provides that, for the purposes of the Act, “injury” may mean a disease suffered by an employee. Section 5B(1) of the Act provides that for the purposes of the Act, “disease” means either an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee's employment with the respondent. Section 5B(3) states that “significant degree” means a degree that is substantially more than material.
Section 5B(2) provides that the following matters may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment with the respondent:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
CONTENTIONS OF THE APPLICANT
The applicant contends that she continues to experience psychological symptoms. She contends that she continues to have an ongoing incapacity and need for treatment as a result of the accepted injury sustained on 21 December 2012.
The applicant contends that her employment with the respondent continues to be the cause of her complaints and incapacity. She contends that any psychological distress following the death of her brother in 2011 was not outside the realms of a normal grief reaction and had ceased at the time of her compensable injury.
The applicant contends that in the event that she has experienced intervening events that have caused her psychological distress, her compensable psychological injury forms the originating causative event. She contends that in the event that she continues to experience psychological distress as a result of intervening events, her distress from these events would have resolved but for the accepted injury.
The applicant relies on the report of Ms Justine Baulch, Psychologist, dated 28 January 2016. The report stated that the applicant has attended clinical interviews with Ms Baulch on a consistent and regular basis since 10 January 2013.[8] Ms Baulch states that the applicant developed an “Adjustment Disorder with Mixed Anxiety and Depressed Mood (chronic)”.[9] She opined that the applicant's psychological symptoms were precipitated by work related stressors.[10]
[8] Exhibit B, Report of Ms Baulch, Psychologist, dated 28 January 2016 at p. 1.
[9] Ibid at pp. 2, 4.
[10] Ibid at p. 4.
Ms Baulch stated that it is unlikely that the applicant would present with her current symptoms in the absence of the work stressors.[11] She also stated that the work-related injury has not ceased[12] and that the applicant continues to require further treatment for the injury.[13]
[11] Ibid.
[12] Ibid at p. 5.
[13] Ibid.
In relation to possible intervening events, Ms Baulch stated that the applicant reports a normal period of grief following the passing of her brother in 2011. She considered that the applicant has not suffered from post-natal depression.
The applicant relies on the report of Dr Curtis Gray, Consultant Psychiatrist, dated 16 June 2015. Dr Gray stated that the applicant developed an adjustment disorder in the context of the workplace stressors during her tenure with the respondent.[14]
[14] Exhibit E, Report of Dr Gray, Clinical Psychologist, dated 16 June 2015 at pp. 11, 13.
Dr Gray opined that the applicant has been incapacitated for work from the date she ceased work.[15] The applicant has an ongoing incapacity for work for the foreseeable future because of the psychiatric condition.[16]
[15] Ibid.
[16] Ibid.
Dr Gray opined that the adjustment disorder condition was probably ameliorated during the applicant's pregnancy and immediate post-partum period.[17] The applicant improved in her mental state around the time of her baby.
[17] Ibid at p. 13.
Dr Gray stated that the injury evolved over time.[18] The original causative events of the work-related adjustment disorder sensitized the applicant to the development of anxiety-depressive symptomology. This provided a substrate or template for the applicant's current diagnosis of a generalized anxiety disorder.[19]
[18] Ibid at pp. 12-13.
[19] Ibid.
Dr Gray stated that the applicant is likely to continue to have generalized anxiety disorder into the foreseeable future.[20] The applicant continues to require further treatment for her symptoms.[21]
[20] Ibid at p. 14.
[21] Ibid.
Dr Gray considered the diagnosis of major depressive disorder made by Dr Varghese to be incorrect. He observed that none of the applicant's examiners or treating doctors between 2013 and 2014 made a diagnosis of a major depressive disorder.[22]
Dr Gray stated that the applicant's symptoms are not associated with a premorbid personality or any other pre-existing psychiatric disorder. He also reported that the applicant is likely to have suffered a reasonably normal bereavement process after the passing of her brother.
The applicant contends that the report of Dr Gray should be given weight over the report of Dr Varghese.
CONTENTIONS OF THE RESPONDENT
The respondent contends that the applicant is no longer suffering from the injury for which compensation was initially granted and hence is not entitled to ongoing benefits pursuant to the Act.
The respondent contends that any condition outside the boundaries of normal mental functioning and behaviour suffered by the applicant on or after 12 November 2014 was not contributed to, to a significant degree, by the applicant's former employment.
The respondent relies on the two reports of Dr Frank Varghese, Consultant Psychiatrist, dated 30 September 2014 and 8 September 2015.[23]
[23] Exhibit A, T-Documents, T31; Exhibit F, Report of Dr Varghese, Consultant Psychiatrist, dated 8 September.
Dr Varghese in his report of 8 September 2015 expressed the opinion that the applicant was “significantly psychologically destabilised by the death of her brother [in 2011] and has suffered recurrent depression since [then]”.[24] He opined that the diagnosis and cause of the applicant's ongoing psychological complaints is major depression as a recurrence that occurred in the post-natal period.[25]
[24] Exhibit F, Report of Dr Varghese, Consultant Psychiatrist, dated 8 September 2015 at p. 13.
[25] Ibid.
The respondent contends that any condition suffered on or after 12 November 2014 was contributed to, to a significant degree, by the applicant's ongoing “claim relationship” with the respondent in respect of her entitlements under the Act (ie compensation related issues), financial stressors, and family and marital issues. In support of this contention, the respondent refers to Dr Gray’s comments that “if I had to apportion causative events in respect of the current diagnosis, I would certainly be looking at a number of events or issues other than the original causative events as described”.[26]
[26] Exhibit E, Report of Dr Gray, Clinical Psychologist, dated 16 June 2015 at p. 11.
The respondent contends that the applicant was, as at 12 November 2014 and to the present date, not entitled to compensation under s 16 of the Act as any need for medical treatment did not arise as a result of the accepted condition which had remitted by that date. Further, the applicant was, as at 12 November 2014 and to the present date, not entitled to compensation under s 19 of the Act because any incapacity for work did not result from the accepted condition which had remitted by 12 November 2014.
CONSIDERATION
Was the applicant, as at 12 November 2012, continuing to suffer the injury for which liability was previously accepted?
The reviewable decision of 9 January 2015 refers to the workplace injury of the applicant as “an adjustment disorder with anxiety”.[27] This was the diagnosis of the condition that was provided by Associate Professor AD Macleod, Psychiatrist, in his report dated 13 February 2013.[28]
[27] Exhibit A, T-Documents, T34 at p. 165.
[28] Exhibit A, T-Documents, T10 at p. 59.
I have considered the medical evidence and consider that the condition of the applicant for which liability was accepted on 15 May 2013 had resolved before 12 November 2014.
Ms Baulch in her report dated 28 January 2016 has identified that a criterion of an adjustment disorder is that the symptoms do not persist for more than an additional six months once the stressor or its consequences have terminated.[29] Dr Gray in his report dated 16 June 2015 diagnosed the applicant as then having a generalised anxiety disorder having regard to the absence of the applicant from the workplace.[30]
[29] Exhibit B, Report of Ms Baulch, Psychologist, dated 28 January 2016 at p. 4.
[30] Exhibit E, Report of Dr Gray, Clinical Psychologist, dated 16 June 2015 at p. 11.
I accept the report of Dr Varghese who reported on 30 September 2014 that the applicant suffered from recurrent major depression.[31] Dr Varghese considered that “where there are biological symptoms and a recurrent pattern constitutional factors are of particular importance and the illness can be regarded as essentially biological although a multifactorial approach is preferable”.[32] While Dr Varghese considers that the applicant was in a state of major depression when she ceased work with the respondent, he considers that her then current episode of depression was a postnatal episode.[33]
[31] Exhibit A, T-Documents, T31 at p. 146.
[32] Exhibit A, T-Documents, T31 at p. 150.
[33] Exhibit A, T-Documents, T31 at p. 147, 150.
Dr Varghese in giving evidence before this Tribunal gave cogent reasons why he considered that the applicant had major depression as opposed to an adjustment disorder. Dr Varghese explained that if the applicant had an adjustment disorder then by definition (under DSM III, IV or V), the adjustment disorder ought to be in remission within six months of the event or circumstances that gave rise to it and her symptoms extended beyond that period.[34]
[34] Transcript of proceedings, at p. 39.
While Dr Varghese diagnosed the applicant as being in a state of depression at the time of his assessment on 2 September 2014. He considered that her then current episode of depression “has not been contributed to by employment”.[35]
[35] Exhibit F, Report of Dr Varghese, Consultant Psychiatrist, dated 8 September 2015 at pp. 13-14.
In his report dated 16 June 2015 Dr Gray considered that the onset of the adjustment disorder appears to have been primarily related to perceived workplace bullying and harassment.[36] Dr Gray expressed his opinion that “it would be reasonable to regard the original stressors that gave rise to the Adjustment Disorder diagnosis of 2013 and 2014 as having now ceased to be significant, in the context of later events”.[37] Dr Gray also remarked that “if I had to apportion causative events in respect of the current diagnosis, I would certainly be looking at a number of events or issues other than the current causative events as described”.[38]
[36] Exhibit E, Report of Dr Gray, Clinical Psychologist, dated 16 June 2015 at p. 11.
[37] Ibid at p. 10.
[38] Ibid at p. 11.
One of the matters raised by the applicant is whether the symptoms of the applicant at the time of the assessment could be regarded as having been contributed to by her employment. Dr Varghese emphasised in his report dated 8 September 2015 that “If employment was an issue in the episode of the depression present when she ceased work, then the effects of employment have long since ceased”.[39] Dr Varghese reported that there may have been residual dysthymia after the remission of major depression after she ceased employment. In giving his evidence Dr Varghese explained that dysthymia is a low mood which does not affect functioning to a significant degree but is a source of happiness.[40]
[39] Exhibit F, Report of Dr Varghese, Consultant Psychiatrist, dated 8 September 2015 at pp. 13-14.
[40] Transcript of proceedings at p. 37.
The applicant was questioned by the respondent about a number of entries in the clinical notes of her general practitioner and psychologist. These entries evidence a number of stressful situations experienced by the applicant in relation to her family. In particular on 5 March 2014 Ms Baulch noted that there were additional stressors in respect of an event concerning the applicant’s brother and the compensation claim process.[41]
[41] Exhibit D, Clinical notes of Ms Baulch.
Having regard to the evidence of both Dr Varghese and Dr Gray I conclude that whatever the diagnosis of the medical condition of the applicant as at 12 November 2014, that condition was not contributed to, to a significant degree or at all, by the workplace events.
While Ms Baulch in her report of 28 January 2016 has opined that the applicant’s clinical history “suggests” that her psychological symptoms were precipitated by work stressors, that report does not provide any reasons for that conclusion. Despite the contention of the applicant that she had consistent and regular clinical interviews with Ms Baulch, there were only two appointments that were held with Ms Baulch in 2013.[42] Ms Baulch indicates that she had the report of Dr Gray dated 16 June 2015 before her when she made her report.[43] However, she does not provide any reasons why she disagrees with the conclusion of Dr Gray who remarked that there were a number of events or issues other than the workplace events which caused the applicant’s current diagnosis.[44]
[42] Exhibit B, Report of Ms Baulch, Psychologist, dated 28 January 2016 at footnote 1.
[43] Ibid at p. 1.
[44] Exhibit E, Report of Dr Gray, Clinical Psychologist, dated 16 June 2015 at p. 11.
Ms Baulch accepts the self-report of the applicant that she had a normal grief reaction in respect of the loss of her brother. However, Ms Baulch has not provided any cogent reasons why the contrary opinion of Dr Varghese, with which she was briefed, should not be accepted.
I do not consider that the accepted injury has given rise to a need for medical treatment since 12 November 2014 to the present date.
Was the applicant, as at 12 November 2012, incapacitated for work?
The applicant has contended that this is a case where an injury may resolve and yet leave the employee with an ongoing incapacity. However, after the applicant ceased work with the respondent the notes of her general practitioner record that on 27 June 2013 she had been “going wel [sic]” when working as a medical receptionist for four days per week.[45] Under cross-examination the applicant stated that she worked at the medical centre for about eight hours per day and four days per week. She stated that she reduced her workload to two days per week because she was being constantly monitored by the practice manager.[46]
[45] Exhibit G, Summonsed materials obtained from Bushland Beach Medical Centre.
[46] Transcript of proceedings, p. 7.
Ms Baluch has opined in her report of 2 September 2014 that the applicant then had a limited capacity for work of less than five hours per week.[47] The applicant had previously advised Ms Baluch on 21 May 2014 that she was working one to two days per week in a salon.[48] In her statement of 2 June 2015 the applicant remarked that she had a work capacity of five to eight hours per week.[49] But in giving evidence she remarked that she was able to work for up to 15 hours per week at her hairdressing business.[50] I do not consider that the applicant was incapacitated for work on 12 November 2014 or thereafter.
[47] Exhibit A, T-Documents, T30 at p. 140.
[48] Exhibit D, Clinical notes of Ms Baulch at p. 276.
[49] Exhibit C, Statement of Ms Speakman dated 2 June 2016 at [26].
[50] Transcript of proceedings at p. 5.
CONCLUSION
I consider that the workplace injury of the applicant had resolved by 12 November 2014. I do not consider that the applicant was incapacitated for work on 12 November 2014 or thereafter. Accordingly I do not consider that since 12 November 2014 to the present date the applicant is entitled to compensation under ss 16 and 19 of the Act.
DECISION
I affirm the decision under review.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .............................[sgd]...........................................
Associate
Dated 31 October 2016
Dates of hearing 11 April 2016; 12 April 2016 Date final submissions received 31 May 2016 Counsel for the Applicant Mr M Black Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Mr C Clark Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Remedies
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Statutory Construction
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Appeal
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