TANIA ROZOWSKIJ and COMCARE

[2009] AATA 256

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 256

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4661

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TANIA ROZOWSKIJ

Applicant

And COMCARE

Respondent

DECISION

Tribunal J. W. Constance, Senior Member
Dr P. Wilkins MBE, Member

Date21 April 2009

PlaceCanberra

Decision The reviewable decision made by Comcare on 10 August 2007 denying liability to compensate the Applicant in respect of an injury which occurred on 28 February 2006 is affirmed.

..................[sgd].......................

J. W. Constance, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for aggravation of pre-existing ailment – depression – employment did not contribute to ailment – employment did not contribute to aggravation of ailment – employment did not materially contribute to ailment – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 – Sections 4, 14

Comcare v Nichols [1999] FCA 209

REASONS FOR DECISION

21 April 2009 J. W. Constance, Senior Member
Dr P. Wilkins MBE, Member         

INTRODUCTION

1.      In February 2006 Ms Rozowskij experienced symptoms of a condition which was later diagnosed as Major Depression. At the time she experienced the symptoms and for some time previously she had been employed by the Department of Immigration and Multicultural Affairs. Her claim that Comcare accept liability to compensate her for this injury under the Safety, Rehabilitation and Compensation Act 1988 was rejected.

2.      Ms Rozowskij is seeking a review of Comcare’s decision to reject liability.  For the reasons which follow the decision under review will be affirmed.

EVIDENCE AND FINDINGS OF FACT

3.      Unless otherwise stated, the following findings of fact are based on the evidence of Ms Rozowskij.  We are satisfied of the facts found on the balance of probabilities.

4.      Ms Rozowskij has shown herself to be a dedicated and enthusiastic public servant.  She commenced her career in the Australian Public Service in 2000 under a one month contract.  In the same year she was appointed to a permanent position at the APS 2 level.    In about March 2005 she joined the Case Management Team in the Unauthorised Arrivals & Detention Division of the Department.  Immediately upon joining, as part of her duties Ms Rozowskij was given the carriage of a highly publicised and politically sensitive case which required her to take responsibility for providing advice and briefings to the Executive, the Minister of the Department and an associated enquiry.  This required intense, thorough, timely and accurate research, investigation, analysis and commitment.[1]

[1] Ex. A1 para. 87.

5.       In June 2005 Ms Rozowskij was assigned to higher duties at the EL1 level.  In this position she managed the Sensitive Case Support Team.  This position added to her responsibilities and duties.

6.      Ms Rozowskij described the nature of her work as follows:

The nature of the section involved extremely high pressure, long hours, short deadlines, on call after hours and weekends in understaffed circumstances with voluminous amounts of work.

It was not uncommon for staff in the section indeed Division, to still be at work long into the evening and even night. I recall that at that time I worked on average 10-11 hour days.

As an EL1 in the division I was also part of a rotational system of being on call after hours and weekends.[2]

[2] Ex. A1 para. 92-94

We are satisfied that Ms Rozowskij was an honest and open witness who was ready to provide whatever information was sought from her.  We accept her evidence without reservation.

7.      During 2005 Ms Rozowskij was confronted with a number of problems in her personal life unrelated to her employment.  In mid 2005 her parents lived with her for about two months at a time when her father was seriously ill.  She was involved in her father’s care. This was a stressful time for her.[3] At about this time she resumed excessive gambling, an addiction from which she had suffered from time to time since the mid-1990s.  Her gambling caused her to feel stressed, anxious and depressed and under financial pressure.  In August 2005 she sought counselling for this problem.[4] 

[3] Ex. R1.

[4] Ex. R1.

8.      By October 2005 Ms Rozowskij was experiencing increased financial problems by reason of her gambling and consequent failure to make her mortgage repayments.  To cope with this stress she increased her gambling and recommenced smoking cannabis.[5]  Ms Rozowskij had smoked significant quantities of cannabis during a period of about 15 years prior to 2002, but had ceased smoking in 2002.

[5] Ex. R1.

9.      On 4 November 2005 Ms Rozowskij attended a counselling session at Gambling Care.  It is recorded in the notes of that session that “Tania is now experiencing difficulties at work.  Re-structuring is occurring and she feels undervalued.”It was noted also that she was planning to address the work issues the following Monday.[6]  Apparently she did not do so.

[6] Ex. R1.

10.     In late November 2005 Ms Rozowskij transferred to a newly-formed Client Services Branch of the Department.  Ms Rozowskij had applied for this transfer and was excited at the prospect of joining the Branch.  In contrast to the area in which she had worked previously, Ms Rozowskij found her new position was far less demanding of her time and effort.  She did not undergo any form of “debriefing” when she left her position in the Detention Division.

11.     Shortly after taking up her new position Ms Rozowskij noticed that she lacked motivation in her work.  She took four weeks leave over the Christmas/New Year period. During this break she increased her cannabis use.  On her return to work in January 2006, Ms Rozowskij decided that she was more suited for work in an operational area as she had “always thrived [on] and enjoyed high pressure jobs.”[7]She sought and accepted a temporary higher position in the Detention Reform Taskforce of the Department.  We accept the following evidence of Ms Rozowskij as to her attitude to this move:

I was extremely excited by this opportunity: it seemed like a natural progression from my previous function within the Detention Division; I had never wanted to leave the division in the first place; and I felt that my achievements in this would substantiate my competency at level.[8]

[7] Ex. A1 para. 121.

[8] Ex. A1 para. 124.

12.     Ms Rozowskij described the events following her joining the Taskforce as follows:

I had been in the Taskforce for approximately 2 weeks when I noticed ‘something wasn’t right’. For example on reviewing notes from briefings that at the time of writing made perfect sense were now almost incomprehensible. I recall this occurring even within minutes of meetings ending.

I recall not totally understanding what people were saying to me, as if I was in a dream; the feeling was surreal and almost as if they were speaking another language.

I also have recollections of being unsure if I had spoken to someone or imagined that I had (similar to when you are formulating points of discussion in your mind in preparation for the actual conversation).

On 27 February 2006 I found that I could no longer concentrate or even sit at my desk. I recall not being sure if I was holding intelligible conversations as it seemed that gobble-de-gook was coming out of my mouth. I also recall not being able to comprehend things. Even briefing notes that I had taken myself did not make any sense. At lunchtime I had an uncontrollable urge to go home and packed some work up to take with me as I thought I may be able to do some there. Once I got home I felt an overwhelming sense of relief at being there, and which over subsequent months, became my cave.[9]

[9] Ex. A1 para. 125-128.

We accept this evidence.

13.     On 28 February 2006 Ms Rozowskij consulted her general practitioner.  She was certified unfit for work.[10]  At this time Ms Rozowskij felt unable to cope with various problems which confronted her. The records of a telephone counselling session undertaken by Ms Rozowskij on 6 March 2006 indicate that at that time repossession of her motor vehicle was imminent, and she was in a depression/gambling cycle.[11] She attempted graduated returns to work in April and June 2006, and worked intermittently until September of that year.  She again attempted to return to work in 2007, but this attempt was unsuccessful.

[10] Ex. T1 p. 116.

[11] Ex. R2.

14.     On 12 November 2006 Ms Rozowskij lodged a claim for compensation for an injury described as an “(aggravation of pre-existing – secondary) depressive disorder”.[12] She described the cause of the injury as “prolonged, intense high pressure workload followed by sudden change in job to area with little intellectual demands.”[13]  Comcare subsequently treated the claim as being for an injury variously described as personality disorder, panic disorder and depressive disorder.

[12] Ex. T1 p. 71.

[13] Ex. T1 p. 73.

15.     At the time of the hearing of this application in March 2009, Ms Rozowskij had returned to part-time work in the Department, but has been unable to work full-time.

Medical and other health professional evidence

Dr Hilton and Dr Chalmers, General Practitioners

16.     On 28 February 2006 Ms Rozowskij consulted Dr Hilton at the Wakefield Gardens Surgery.  Dr Hilton formed the view that she was depressed at that time.  Ms Rozowskij consulted Dr Chalmers at the same practice on 6 March 2006 and on a number of subsequent occasions.  In the opinion of Dr Chalmers, in February 2006 Ms Rozowskij suffered an exacerbation of her pre-existing depressive and anxiety disorders.  In January 2007 she reported that:

There is an apparent relationship between Ms Rozowskij's employment and her current condition in that she states that a sudden change in pace and level of responsibility [from high to low] in November 05 occurred around the time of the deterioration in her mental health.  I am not able to state whether this amounts to cause and effect.[14]

[14] Ex. T1 p. 117.

Ms Kang, Clinical Psychologist

17.     In late July and early August 2006 Ms Kang assessed Ms Rozowskij in relation to her psychological fitness for work.  Ms Kang diagnosed Ms Rozowskij as suffering severe symptoms of Major Depression and was of the opinion that “[her] current report of the symptoms she suffered in February 2006, would have met the criteria for having had a Major Depressive Episode … [f]actors unrelated to the workplace appear the most obvious clinical issues influencing her current mental health and her inability to return to work.”[15]

[15] Ex. T1 p. 40.

Dr Synnott, Consultant Psychiatrist

18.     In September 2006 the Department arranged for Ms Rozowskij to be assessed by Dr Synnott.  In his report of 26 September 2006[16] he expressed the opinion that Ms Rozowskij had a primary Anxiety Disorder (with panic attacks) and a secondary Depressive Disorder (non-melancholic type).

[16] Ex. A1 p. 50.

Dr Glaser, Consultant Psychiatrist

19.     Dr Glaser assessed Ms Rozowskij in January 2007 at the request of Comcare.  He provided a report dated 9 February 2007[17] and gave evidence.  Dr Glaser agreed with the diagnosis made by Dr Synnott but was of the opinion that in addition Ms Rozowskij suffered longstanding personality vulnerabilities which probably were sufficiently severe to meet the diagnosis of Personality Disorder.  In response to a question whether in his opinion there was a relationship between Ms Rozowskij's condition and her employment, Dr Glaser responded:

… there is no such relationship.  There are no indications that she faced any significant stressors or adverse experiences during the course of her employment.  Her current psychiatric problems can more than adequately be explained by the various non-work-related stressors …[18]

[17] Ex. T1 p. 132.

[18] Ex. T1 p. 143.

Dr Glaser maintained this opinion when he gave evidence.

Ms Stevenson, Psychologist

20.     Ms Rozowskij’s fitness for duty was assessed by Ms Stevenson in October 2007.  Ms Stevenson administered a Personality Assessment Inventory designed to measure clinical diagnoses and personality characteristics.  She concluded that Ms Rozowskij was suffering “a psychological condition involving significant symptoms of anxiety and depression.”[19]Ms Stevenson also reported that “[t]he assessment also suggests that there may be significant personality factors, which are impacting on the clinical picture and causing her ongoing difficulties in functioning both at work and at home.”[20]

[19] Ex. R7 p. 7.

[20] Ex. R7 p. 7.

Dr Knox, Consultant Psychiatrist

21.     Ms Rozowskij was assessed by Dr Knox in June 2008 at the request of her solicitor. Dr Knox found no evidence of formal Personality Disorder, but found that Ms Rozowskij had underlying emotional difficulties likely to have arisen out of general background family issues.  He reported that in his opinion Ms Rozowskij

suffered from psychiatric disorder by way of Generalised Anxiety Disorder, and Depression (Dysthymia with periods of Major Depressive Disorder), as a result of the intensity of the work she undertook in the Department of Immigration/Detention Services during the period April to November 2005, against a background of residual difficulty in the relationship with her ex-partner, concerns for her children, and her financial needs.

…

I am however strongly of the opinion that the Immigration Department workplace was a strongly material factor in the mix which led to the breakdown of her health in late 2005/early 2006.[21]

[21] Ex. A3 p. 8.

Dr Wilcox, General and Forensic Psychiatrist

22.     In July 2008 Dr Wilcox assessed Ms Rozowskij at the request of the solicitors for Comcare.  She provided a report dated 21 July 2008[22] and gave evidence.  In her opinion, at the time of assessment Ms Rozowskij suffered Major Depression (chronic, partially treated) and an underlying anxiety disorder associated with panic attacks.  She was also of the opinion that Ms Rozowskij had previously suffered from cannabis abuse, which had affected her capacity to fulfil major obligations in her life.  Dr Wilcox did not believe that Ms Rozowskij's depression was materially contributed to by her employment by the Department. In her report of 21 July 2008 she concluded:

I believe her condition occurred as a result of a series of stressors in her personal life namely the documented ongoing problematic relationship with the father of her daughter, her persistent financial problems with difficulty maintaining her mortgage and her inability to control her addiction to gambling.

It is also probable that her self medication with marijuana from the end of 2005 onwards had a detrimental impact on her mood, her cognition, her level of anxiety and her capacity to function. The more she smoked the less motivated she became.[23]

[22] Ex. R3.

[23] Ex. R3 p. 14.

23.     Dr Wilcox confirmed her opinions when she gave evidence.  In her view the various personal stressors experienced by Ms Rozowskij had built up and, in combination with the effects of prolonged cannabis use, had resulted in her inability to cope with her work in February 2006.  She said that the symptoms which Ms Rozowskij described as experiencing on 27 February 2006 were consistent with prolonged cannabis use.

Emeritus Professor Jones, Consultant Psychiatrist

24.     Professor Jones assessed Ms Rozowskij in October 2008 at the request of her solicitor.  He diagnosed Ms Rozowskij as suffering a Major Depressive Disorder which in his opinion had interacted with the particular work she was undertaking, but that her work was not the prime cause of her disability. In his view it was possible that Ms Rozowskij was developing depressive symptoms after she ceased the high pressure work rather than during it, and this may account for her impaired performance in early 2006.  He stated that:

It would be difficult to ascribe her symptoms to work related stress.  In the most high pressured job she has done, with Immigration, she appeared to thrive on stress … I would see the important factor in the deterioration of her work as the consequence [sic] emerging depression of clinical severity to which she is likely pre-disposed by her childhood background. [24]

[24] Ex. A4 p.10.

He did not consider she showed an abnormal personality.

25.     In a second report dated 10 November 2008 he reported that “it does seem on balance of probability that the change in her work that occurred in late 2005 was a significant contributing factor to the onset of depression at that time.  It need hardly be said that in view of the now clear evidence of the adverse effect of chronic high marijuana usage, that usage should cease.”[25]

[25] Ex. A5 p. 3.

MS ROZOWSKIJ’S ARGUMENT

26.     Ms Rozowskij argued that although she had experienced many significant stressors in her lifetime, she had always been able to manage these stressors until the incident on 27 February 2006, and the only recent change in her circumstances was the extremely stressful period of work as a member of the Detentions Branch. She said that the reason she did not complain about the pressure of her work when she fell ill was that at the time she did not realize the effect her work was having upon her.  It was not until she was diagnosed as suffering depression by Ms Kang (in August 2006) that she recognized that her employment had contributed to her illness.

27.     Ms Rozowskij argued also that the change from the extremely high-pressure of the Detentions Branch to the extremely relaxed atmosphere of the Client Services Team in November 2005 contributed to her illness.

28.     Dr Knox supports the argument that Ms Rozowskij's illness was contributed to by the pressure of work in the Detentions Branch.  Professor Jones supports the view that the change in workload was a significant contributing factor.

ISSUE FOR DETERMINATION

29. Under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work. In section 4 “injury” is defined to include a disease and “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.

30.     It is not in dispute that, as at 28 February 2006, Ms Rozowskij suffered from an ailment that was outside the boundaries of normal mental functioning and behaviour.[26]  Comcare conceded that the ailment had been described in various ways, but included depression.  We are satisfied on the evidence that these are proper concessions to have been made.

[26] Respondent’s Outline of Submissions para.1.

31.     The issue for determination is whether the aggravation of the depression suffered by Ms Rozowskij was contributed to in a material degree by her employment by the Department.

REASONING

32.     Ms Rozowskij is claiming that her work contributed to her ailment.  If we are not satisfied of this on the balance of probabilities (i.e. that it was more probable than not) her claim must fail: Comcare v Nichols. [27]

[27] [1999] FCA 209.

33.     Having considered carefully the evidence of the health professionals to which we have referred, we are not satisfied on the balance of probabilities that Ms Rozowskij's employment contributed to her depressive condition, nor to an aggravation of it.

34.       Dr Chalmers was unable to say whether the change in Ms Rozowskij's work environment was a cause of the condition she suffered.  Ms Kang, Dr Synnott, Dr Wilcox and Ms Stevenson suggested that factors other than her employment contributed to Ms Rozowskij's depression. Dr Glaser was of the view that there was no relationship between her employment and her mental condition.  On the other hand, Dr Knox strongly supported Ms Rozowskij's contention that the pressure of her working in the Detention Branch contributed to her depression.  Professor Jones supported the argument that the change in working conditions was a contributing factor.  We have taken into account that Ms Rozowskij was experiencing some difficulties arising from her employment in November 2005.

35.     There is nothing in the evidence which causes us to conclude that the opinions of either Dr Knox or Professor Jones should be preferred over the opinions of the other medical practitioners and health professionals.  Further, we are satisfied on the balance of probabilities that over a considerable period of time Ms Rozowskij suffered from a number of personal stressors (other than her work) which may have contributed to her condition.  These include her gambling addiction, her prolonged cannabis use, her financial problems, her relationship with her former partners and her relationship with her parents.  In our view it is equally probable that one or more of these factors was the cause of Ms Rozowskij's ailment.

36.     Even if we had been satisfied that Ms Rozowskij's employment contributed to her ailment, we would not have been satisfied on the balance of probabilities that the contribution was material.  Our reasoning in reaching this conclusion is the same as that which caused us not to be satisfied that there was any contribution by her employment to her ailment.

DECISION

37.     The reviewable decision made by Comcare on 10 August 2007 denying liability to compensate Ms Rozowskij in respect of an injury which occurred on 28 February 2006 is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of J. W. Constance, Senior Member and Dr P. Wilkins MBE, Member.

Signed:         ....................[sgd]............................................................
  T. Aviram, Associate

Dates of Hearing  23-24 March 2009
Date of Decision  21 April 2009
Applicant self-represented               
Counsel for the Respondent     Ms E. Ford
Solicitor for the Respondent     Ms C. King, Dibbs Barker