Taylor and Comcare (Compensation)
[2017] AATA 1327
•22 August 2017
Taylor and Comcare (Compensation) [2017] AATA 1327 (22 August 2017)
Division: GENERAL DIVISION
File Number(s): 2016/2494
Re:Wendy Taylor
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member J F Toohey
Date:22 August 2017
Place:Sydney
The Tribunal:
(i)is satisfied that the applicant’s employment contributed to a significant degree to a psychological condition that was outside the bounds of normal mental functioning and behaviour and was a disease for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
(ii)affirms the decision that the effects of the applicant’s injury ceased by 10 December 2015; and
(iii)decides that, by reason of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the disease suffered by the applicant is not an injury for the purposes of the Act.
.......................[sgd]..............................................
Senior Member J F Toohey
CATCHWORDS
Compensation – bullying and harassment – adjustment reaction with anxious mood – depression – liability accepted – subsequently disputed – whether condition outside the boundaries of normal mental functioning and behaviour – whether employment contributed to a significant degree – whether effects of injury ceased – whether applicant made wilful and false representation – Tribunal satisfied that applicant’s employment contributed to a significant degree to her condition – decision that effects had ceased affirmed – not an injury by reason of wilful and false representation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 5A, 5B, 7, 62
CASES
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Mooi (1996) 69 FCR 439
Comcare v Porter (1996) 70 FCR 139
Federal Broom Co Pty Ltd v Semlitch (1964)110 CLR 626
Ianella v French (1968) 119 CLR 84
Madden and Australian Postal Corporation [2008] AATA 411
Re Duffy and Comcare [1996] AATA 676
Re Georgoulas and National Australia Bank Limited [2013] AATA 512
Re Iliadis and Comcare [1996] AATA 602
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253REASONS FOR DECISION
Senior Member J F Toohey
22 August 2017
INTRODUCTION
Wendy Taylor was employed by the Department of Human Services (DHS) from 23 July 2007 until her retirement on 28 August 2013. On 27 January 2012, she claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for “adjustment reaction with anxious mood” as a result of bullying and harassment during her employment.
In her claim for compensation, Ms Taylor identified 21 December 2011 as the date on which she was injured or first noticed that she was ill. She identified 29 April 2011 as the date on which she first sought medical treatment for her injury.
Comcare accepted that Ms Taylor had suffered an injury to which her employment had contributed to a significant degree and that it was liable under s 14 of the Act to compensate her. The Comcare delegate noted the apparent inconsistency in the dates identified in Ms Taylor’s claim form. On the basis that her medical practitioner first certified her unfit for work due to “work-related stress” on 21 December 2011, the delegate deemed that to be the date of injury in accordance with s 7(4) of the Act.
On 10 December 2015, Comcare determined that the effects of Ms Taylor’s injury had ceased as of that date and that it was not presently liable to compensate her. On 11 March 2016, Comcare affirmed that determination. By application lodged with the Tribunal on 5 May 2016, Ms Taylor sought review of Comcare’s determination.
In these proceedings, Comcare contends that, applying the decision of the Full Federal Court in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253, the Tribunal should find that the original determination to accept liability was incorrect. Comcare contends that Ms Taylor did not suffer an adjustment disorder but, rather, a recurrent depressive disorder to which her employment with DHS did not contribute to a significant degree.
Comcare contends that, if Ms Taylor is found to have suffered a disease for which she would ordinarily be entitled to compensation, it is not liable to compensate her by reason of a wilful and false representation or representations within the meaning of s 7(7) of the Act.
Comcare further contends that, should the Tribunal find Ms Taylor was entitled to compensation under the Act, the effects of her injury ceased as at 10 December 2015.
THE LEGISLATION
By s 14 of the Act, Comcare is liable to compensate Ms Taylor if she suffered an injury that results in death, incapacity for work or impairment.
Section 5A(1) provides that injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.
By s 5B(1), disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development): s 4. Significant degree means a degree that is substantially more than material: subs 5B(3).
In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, matters that may be taken into account include: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee's health: subs 5B(2).
THE ISSUES
I have first to determine whether Ms Taylor suffered an injury in the nature of a disease for which she would ordinarily be entitled to compensation under the Act. That requires me to determine the nature of any disease and whether it was contributed to, to a significant degree, by her employment. It is not in dispute that, whether correctly diagnosed as an adjustment disorder or as depressive disorder, Ms Taylor’s condition was an ailment for the purposes of the Act.
If I am satisfied that Ms Taylor suffered a disease for which she would ordinarily be entitled to compensation, the question arises whether the effects of that injury ceased by 10 December 2015.
If Ms Taylor suffered a disease that would ordinarily be a compensable injury then I have to determine whether it is taken not to be an injury for the purposes of the Act by reason of a wilful and false representation within the meaning of s 7(7).
INFORMATION BEFORE THE TRIBUNAL
Ms Taylor provided a written statement dated 11 October 2016 and gave oral evidence. She became distressed at times while giving evidence and had to stop. Her memory for events and conversations with her doctors was poor. It is likely her poor memory was due in part to the stress of the hearing and in part to her current psychiatric ill-health. I accept that Ms Taylor gave her oral evidence as best as she could but, in my view, her evidence was not reliable.
Dr Selwyn Smith, Ms Taylor’s treating psychiatrist since 2012, and Dr Doron Samuell, a psychiatrist who saw her in 2015 and 2016 for assessment, provided written reports and gave oral evidence.
The Tribunal also has before it three volumes of documents lodged by Comcare in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”). They include documents concerning the incidents said to have caused Ms Taylor’s injury, and reports from psychiatrists who saw her for assessment: Dr Monir Younan, who saw her in 2006; Dr Anne-Marie Rees who saw her in 2012 and 2013; and Dr Sharon Reutens, who saw her in 2013. Also before the Tribunal are documents produced under summons by Ms Taylor’s general practitioner, Dr Y L Liew which include clinical notes from Dr C C Chan at the same practice.
THE “HANNAFORD” ISSUE
In Hannaford (above) the Full Federal Court determined that, insofar as an original s 14 decision remains in force, the Tribunal is “empowered to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision” to accept liability. Heery J observed (at [8]) that the “text, structure and underlying policy of the SRC Act do not suggest that a determination under s 14 permanently enshrines every finding of fact on which the determination was based” and, in particular, that reconsideration under s 62 of the Act is not subject to any time limit.
No challenge is made in these proceedings to the Tribunal’s power to make the determination sought by Comcare. I am satisfied that, despite Comcare’s previous acceptance of liability under s 14, it is open to the Tribunal to conclude that Ms Taylor did not in fact suffer an injury within the meaning of s 5B(1) of the Act. For reasons that follow, I am satisfied that Ms Taylor’s employment contributed to a significant degree to the development of a disease or the aggravation of a pre-existing disease.
EVENTS AT WORK 2010 TO 2012
Ms Taylor was employed as a fulltime customer service officer at DHS. She says she enjoyed her job “immensely” until March 2010 when a new manager, Mr W, was transferred to her office. She describes Mr W as “a very intimidating man”.
At a team meeting in March 2010, Mr W spoke to another worker in a manner that Ms Taylor found disturbing. She left the meeting feeling anxious, not having been exposed to such behaviour by previous managers.
In July 2010, Ms Taylor was talking to a co-worker when Mr W attempted to join in the conversation. It was the first time he had spoken directly to her. He put his arm around her, squeezed her towards him and said words to the effect of “I like this girl”. According to Ms Taylor’s written statement, his conduct made her feel “very uncomfortable”. Two union representatives who saw what happened recommended she make a complaint but she was “too afraid of the consequences” to do so.
In September 2010, Ms H, who had previously worked with Mr W, was transferred to Ms Taylor’s office. On 10 March 2011, Ms H had “strong words” to Ms Taylor about printing her payslips. Ms Taylor says her demeanour was condescending and she felt bullied. In the same month, she felt “uncomfortable” when Mr W spoke to a member of staff at a meeting in a manner that upset the other worker. In April 2011, she witnessed Mr W abusing her team leader and accusing him in a loud voice of being incompetent.
Ms Taylor says that, at a meeting in May 2011, Mr W formed a gun with his hand and pretended to shoot another worker when he did not like a question the worker had asked.
The T-documents include a statement prepared by Ms H for the purposes of an internal investigation in which she disputes Ms Taylor’s version of events. She denies targeting Ms Taylor and says the “gun incident” did not occur.
There was discussion at the hearing as to whether the Tribunal would be assisted by hearing from Ms H. I decided it would not. As their email correspondence bears out, Ms H and Ms Taylor have different perceptions of events, if not quite different accounts. I am satisfied that events occurred during 2010 and 2011 which made Ms Taylor feel very uncomfortable and, at times, upset. In all the circumstances, whether this particular incident occurred is not material in my view.
On several occasions in the months following May 2011, Ms Taylor says Mr W or Ms H acted in an intimidating manner that made her or other workers feel “very uncomfortable”. In June 2011 and July 2011, she felt targeted and belittled when Ms H “yelled” at her about how she was doing her work.
In September 2011, staff were invited to show interest in joining a new team under Ms H. Ms Taylor sent an email to a national manager saying a number of people were interested but did not want to work with Ms H. The manager’s response suggested that staff were undermining the leadership team. Ms Taylor felt “very upset” at his response. She “escalated” the matter to another manager and in December 2011 arranged to see one of the workplace counsellors. She had two days off work on stress leave.
Ms Taylor last worked in the office in February 2012. In May 2012, Comcare accepted her compensation claim. She retired on medical grounds on 28 August 2013.
MEDICAL HISTORY
Medical records and reports show that Ms Taylor has seen doctors for conditions described as stress, depression or anxiety, or a combination of those, over many years.
In her written statement, Ms Taylor described the following history:
·following the suicide of her fiancé in December 1984, she suffered a period of depression and was on antidepressant medication and had counselling;
·she suffered postnatal depression and took antidepressant medication for a short time after the birth of her son in 1989;
·she suffered postnatal depression, but does not recall taking medication, following the birth of her second son in 1991 and his diagnosis at seven months with severe haemophilia;
·she suffered depression in 1999 following the breakdown of her marriage; she could not recall any treatment other than counselling from Dr Liew; she continued to suffer from depression into 2000;
·in 2005 she suffered depression when her relationship broke down.
Ms Taylor attended on Dr Liew or Dr Chan from 1995. Giving evidence, she acknowledged that she reported symptoms of depression to one or the other doctor in 1999, 2000, 2001, 2005 and 2006. In fact, the records before the Tribunal indicate more frequent episodes.
It is not clear on the evidence how long each episode or symptoms of stress or depression lasted on each occasion. For example, Dr O H Yeoh, the psychiatrist whom Ms Taylor saw following the death of her fiancé, no longer has records dating from 1984 but advises that he last saw her on 23 February 1987. Ms Taylor cannot recall how often she saw Dr Yeoh but his advice suggests it was over an extended period up to three years. A further instance appears in Dr Liew’s notes on July 2005 which show that Ms Taylor was prescribed Zoloft and had counselling from 21 July 1999 to 3 March 2000 after the breakdown of her relationship. The period is relevant to whether Ms Taylor suffered from discrete episodes of adjustment disorder, as Dr Smith believes, or from recurrent depression as Dr Samuell believes.
It is also not always clear on the evidence what precipitated symptoms or episodes of depression on each occasion. Some had no apparent direct connection to the events described by Ms Taylor. If they were related to the events described in her written statement, it is a reasonable inference that they lasted longer than Ms Taylor recalls and for periods more consistent with recurrent depression than adjustment disorder
For example, in 1994 gastroenterologist, Dr Philip Craig, recorded that Ms Taylor was “under a lot of stress recently” since the birth of her son (in 1989 or 1991). In June 1996, gynaecologist, Dr Michael O’Connor, commented in a letter to Dr Liew: “Her depression seems to be cyclical and I wondered whether she may in fact have a bipolar disorder”. In February 1997, Dr Craig recorded: “Wendy has been quite anxious and depressed lately”. Neither Dr Craig nor Dr O’Connor is a psychiatrist; their reports are not evidence of a psychological disorder, but they suggest symptoms of a depressive condition at other times, or for periods considerably longer, than described by Ms Taylor.
On 21 January 2005, Dr Chan recorded that Ms Taylor came in saying that she was “no longer coping with her depression”. That appears consistent with the breakup of Ms Taylor’s relationship. In November 2005, Dr Liew referred her to Dr Younan after she presented “with depression”. Dr Younan reported in March 2006 that she was suffering from “clinical non-melancholic depression” to which “traumatic life events on top of some vulnerability in the personality are the main contributory factors”. On 9 August 2006, Dr Chan diagnosed reactive depression, noting “counselling ongoing and coping [indecipherable] with 2 children one is haemophiliac”; she certified Ms Taylor unfit for three months. These records suggest an extended period of depression, or recurrent periods, from early 2005 to mid-2006.
On 5 February 2009, Dr Chan certified Ms Taylor unfit for two days on account of “work place related stress”.
From 1 July 2010, around the time of the incident with Mr W, to 29 April 2011, Ms Taylor saw Dr Liew 13 times. The first indication of psychological symptoms appears on 29 April 2011 when Dr Liew recorded “feeling low”, and prescribed Aropax. On 26 July 2011, she recorded “Unwell, sore throat, feverish, stressed”. On 21 December 2011, she recorded “Stressed out at work, doesn’t want to be there. Alleged bullying by management. Crying a lot, feeling exhausted … Aropax helping and seeing work counsellor”.
Dr Liew’s notes in the later part of 2011 and into 2012 refer to Ms Taylor being “bullied at work”, crying a lot, “feeling very anxious” and “very stressed” about work. By February 2012, Ms Taylor was seeing a workplace counsellor, and in July 2012, Dr Liew referred her to Dr Smith.
The clinical notes and reports are important when it comes to consider the conflicting opinions of Dr Smith and Dr Samuell about the diagnosis of Ms Taylor’s condition and its relationship to her employment.
DATE OF ONSET
As set out above, in her claim for compensation lodged on 27 January 2012, Ms Taylor identified 29 April 2011 and 21 December 2011 respectively as the dates on which she first sought medical treatment and first noticed her injury. She identified Mr W and Ms H as the persons responsible for her injury.
Ms Taylor appears not to identify July 2010, when Mr W put his arm around her, as the date of onset of her condition. Dr Smith certainly identifies that incident, which he says “significantly traumatised” her, as the cause of the adjustment disorder that persisted and is now a major depressive disorder. (As I will come to, those are not Ms Taylor’s words). In contrast to his oral evidence, however, in a Medical Certificate for Workers Compensation dated 3 April 2013, Dr Smith identified the date of injury as 22 December 2011. (He also described Ms Taylor’s symptoms at the time and diagnosis as “Depression, anxiety, poor concentration, loss of self-esteem and self-confidence”). As set out below, Dr Smith’s limited understanding of Ms Taylor’s medical history and of events at work undermines the value of his evidence.
Comcare contends that the most likely and reliable date of onset of the condition of which Ms Taylor now complains was April 2011. Comcare does not dispute that, from that date, she suffered a recurrence of depression that was “outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi (1996) 69 FCR 439 at 444.
Leaving aside for now the question of diagnosis, I am satisfied on the evidence that, much as Ms Taylor was upset by Mr W’s actions in July 2010 and by subsequent actions, her condition did not meet the description in Mooi until April 2011. My reasons follow.
DIAGNOSIS
In July 2012, Dr Liew referred Ms Taylor to Dr Smith who has been her treating psychiatrist since. Dr Smith and Dr Samuell agree about a number of matters but they disagree strongly about the diagnosis of Ms Taylor’s condition and its relationship to her employment.
Dr Smith
When she first presented, Dr Smith diagnosed Ms Taylor as suffering an adjustment disorder with mixed depressed and anxious mood. He described her condition as “the development of depressive symptoms in association with anxiety symptoms against the background of exposure to the bullying, harassing and sexual inappropriateness of her superior”.
Giving evidence, Dr Smith agreed with Dr Samuell that a complete and accurate psychiatric history, including an understanding of issues affecting a patient and whether a condition is long-standing, chronic, new, or a variation on a theme, is important to arriving at a reliable diagnosis.
Although he described Ms Taylor’s medical history in one report as having been “well-traversed”, Dr Smith had a limited history from her when he first saw her. Reporting to Dr Liew on 5 September 2012, he said that, apart from a depressive episode when her fiancé committed suicide, she had not previously consulted with psychologists. He first cited post-natal depression in a report on 5 June 2015 in response to a report from Dr Samuell. Going by his reports, he does not appear to have had access to a complete history until sometime in 2017. Even then, he was not aware that Ms Taylor saw Dr Liew in 2009 for work-related stress. Instead, he understood that, after commencing work at DHS, “she was fine up until the untoward events” which caused her to go off work in 2012.
Giving evidence, Dr Smith agreed with Dr Samuell that the diagnostic criteria for adjustment disorder are development of symptoms within three months. However, he was unable to identify the date of onset of Ms Taylor’s adjustment disorder. When pressed, he nominated July 2010, although he could not find a basis for that in his notes.
Dr Smith could not say when Ms Taylor first sought treatment after the incident involving Mr W. He acknowledged that, “under the normal course of events”, one would expect her to have communicated with her doctor if she was “significantly traumatised”. He acknowledged there was no reference in the general practitioners’ notes from July 2010 to March 2011 to psychological symptoms or anti-depressant medication. He acknowledged that Aropax, prescribed by Dr Liew on 29 April 2011, is indicated for conditions including major depression but not for adjustment disorder (although, without hearing from Dr Liew as to why she prescribed Aropax, I place no weight on that in itself).
Dr Smith and Dr Samuell agreed that an adjustment disorder is characterised by a response to an event or events and typically resolves within six months after removal from the precipitant. Dr Smith was not sure how long Ms Taylor’s previous episodes of depressive symptoms, which he thought were unrelated adjustment disorders, lasted after each relevant event. For example, he was not sure for how long she saw Dr Younan in 2006. Asked what he made of a certificate showing Ms Taylor was unfit for five months from 9 August 2006 (and that she had been seeing a psychologist in March 2006), Dr Smith said it was not clear, and he could only conclude that she had an episode of depression.
In Dr Smith’s view, although she has not been at work since August 2013, the stressors and its consequences have never abated for Ms Taylor; they have been persistent in her mind and she has been living with the consequences of the loss of her employment ever since and, as a result, she now has major depression.
Dr Rees and Dr Reutens also diagnosed Ms Taylor as suffering from an adjustment disorder, and Dr Smith drew on their opinions for support for his own. It is submitted for Ms Taylor that less weight should be given to the opinion of Dr Samuell, who was alone in diagnosing a recurrent depressive disorder, than to the diagnosis of adjustment disorder by the other three psychiatrists. Neither Dr Rees nor Dr Reutens gave oral evidence but a close reading of their reports shows they too had a limited history. Their opinions are considered below.
Dr Samuell
Dr Samuell considered the eight previous episodes of depression Ms Taylor described to him to be “very significant” because they made the risk of further episodes of depression “approach statistical certainty”. He referred to studies (without actually citing them) showing that the more often a person has depression, the more likely a recurrence, and, after three episodes, the likelihood of a fourth approaches “statistical certainty”.
Dr Samuell gave evidence that psychiatry relies heavily on pattern recognition and history in order to come to a reliable diagnosis, and taking an event in isolation without understanding a larger pattern would bias one into giving greater weight to a recent event. In his view, Dr Rees would not have arrived at a diagnosis of adjustment disorder had she had a full history of Ms Taylor’s recurrent depression. I cannot speculate on what Dr Rees might have done but it is evident from her reports that she did not have a complete history from Ms Taylor.
In Dr Samuell’s view, a diagnosis of adjustment disorder did not account for Ms Taylor’s presentation. He disagreed with Dr Smith’s view (which finds support in Dr Rees’ report) that an adjustment disorder can have insidious onset by virtue of an accumulation of events. He gave evidence that, by definition, adjustment disorders are self-limiting and brief (although he acknowledged they can become persistent). He said symptoms are most pronounced immediately after the trauma and decrease over time; the condition does not have insidious onset and requires a traumatising event. (He disagreed that the incident with Mr W met that description).
Dr Samuell considered the most likely diagnosis was of a recurrent major depressive disorder which, he said, is typically characterised by periods of relapse and remission. Reading Dr Younan’s report in 2006, he thought what Ms Taylor saw him for at that time was the same condition as in 2011. He gave evidence that, consistent with Ms Taylor’s history of some episodes without apparent cause, depression can come on without apparent cause. Finally, in contrast to adjustment disorder, he said depression can have insidious onset as events accumulate.
Dr Samuell thought it a reasonable inference that Ms Taylor was treated for depression by Dr Liew in April 2011 because she was prescribed Aropax which is indicated for major depression and is not effective for adjustment disorder. Dr Smith agreed that Aropax is indicated for depression and not for adjustment disorder.
Dr Samuell did not think Ms Taylor’s employment could account for her presentation in November 2016. He agreed that an adjustment disorder can continue and become persistent if the stressor is continuous but, within six months of the cessation of the stressor, the adjustment disorder ceases.
Dr Rees and Dr Reutens
While Dr Rees and Dr Reutens arrived at the same diagnosis of adjustment disorder as Dr Smith, their reports show that neither had a complete history from Ms Taylor. Importantly, neither described the incident with Mr W in 2010, as Ms Taylor relayed it to them, in terms resembling those used by Dr Smith. Their reports suggest effects on Ms Taylor in terms similar to those she used herself.
Dr Rees saw Ms Taylor on 20 February 2012. She took a history that Ms Taylor needed “some psychological intervention” when her fiancé died, she took Avanza for one to two months in 2005 when there were “family problems”, and she saw a workplace counsellor around 2008 when there were problems at work; otherwise she was “quite well and stable”. Dr Rees reported that Ms Taylor felt “extremely uncomfortable” when Mr W put his arm around her but there was “no further similar contact with him or any other inappropriate comments”.
In a report dated 28 February 2012, Dr Rees diagnosed Ms Taylor as suffering from a mild adjustment disorder with anxious and depressed mood which had “an insidious onset over the last few months in relation to her perception of stress in the workplace”. She thought Ms Taylor would be able to work if she was not working under her current managers, and she should be able to return “to an alternative environment as soon as possible in a graduated return to work over four to five weeks”.
Dr Reutens saw Ms Taylor in March 2012. She took a history that Ms Taylor saw a psychiatrist after the death of her fiancé but “did not have significant symptoms of depression”. She suffered post-natal depression after the births of her two children for which she did not receive treatment or counselling. She divorced her husband some years previously “but was able to cope with the divorce”. She had been bullied and harassed since mid-2010 and “developed feelings of anxiety” when she had to encounter her managers.
Dr Reutens reported that Ms Taylor described symptoms “consistent with a mild Adjustment Disorder With Anxiety” which had “significantly resolved” since she had been off work, but she continued to have “residual symptoms of irritability, and some anxiety and low mood” because the situation had not been fully resolved. Dr Reutens said the main employment factor contributing to Ms Taylor’s condition was her perception of bullying and harassment before April 2011 which “developed gradually such that by April 2011 she consulted [Dr Liew].”
Consideration
I prefer Dr Samuell’s diagnosis of recurrent depression to the diagnosis of adjustment disorder made by Dr Smith. I prefer Dr Samuell’s view that Ms Taylor’s symptoms from around April 2011 are explained by reference to recurrent depression and not to adjustment disorder. Dr Samuell had the benefit of a more complete history than Dr Smith. The clinical notes and the evidence supported his diagnosis, and he related his diagnosis to Ms Taylor’s overall history which indicates recurrent episodes of depressive symptoms.
In my view, Dr Samuell’s evidence was more measured, considered and reasoned than Dr Smith’s, and he was able to relate his opinion to the circumstances of Ms Taylor’s case. With respect to Dr Smith, he did not appear to me to draw a line between an independent assessment of Ms Taylor’s condition and advocacy on her behalf. He appeared to accept uncritically that Mr W “was responsible for the intimidating behaviour including the sexual inappropriateness of his conduct”. His statement that Ms Taylor was “significantly traumatised” does not accord with her own description and it is not supported by her doctor’s clinical notes. Dr Smith appeared to accept uncritically that the incident in July 2010 caused Ms Taylor’s condition with limited understanding of all of the circumstances and despite the absence of any report of symptoms to her doctors for approximately nine months following that event.
I am satisfied that, from around April 2011, Ms Taylor suffered from recurrent depression and not an adjustment disorder.
DID MS TAYLOR’S EMPLOYMENT CONTRIBUTE TO HER CONDITION TO A SIGNIFICANT DEGREE?
For reasons that follow, I am satisfied that, from April 2011 when Dr Liew prescribed Aropax, Ms Taylor suffered from a condition outside the bounds of normal functioning and behaviour to which her employment contributed to a substantial degree.
In Dr Samuell’s view, conduct by Mr W of the kind described by Ms Taylor would not have traumatised her in the sense required for diagnosis of adjustment disorder (and, as I understand his evidence, would not have triggered depression). He thought that, as Ms Taylor described it, the incident, did not seem like an event “of sufficient moment to be able to cause a serious mental health condition”. Dr Samuell noted that Ms Taylor did not appear traumatised and did not complain of trauma, for many months after July 2010. He did not think it possible that she would see her doctor frequently without trauma of the magnitude now claimed being noticed or recorded. He acknowledged that the continued presence in the workplace of a “harasser” could continue the problem but said it did not accord with his clinical experience.
In arriving at this view, Dr Samuell took into account that there is no record of anti-depressants prescribed or any psychiatric symptoms, between July 2010, when the event said to have “significantly traumatised” Ms Taylor occurred, and April 2011 when Dr Liew prescribed Aropax. He thought, given her long history with Dr Liew, it was reasonable to expect it would show up in her notes if it was discussed, and reasonable to infer Ms Taylor would have discussed it with her. I accept that view. Dr Liew’s notes show a detailed history of regular consultations including past distressing episodes. I find it improbable that Ms Taylor would not have discussed with Dr Liew events at work that distressed her, let alone significantly traumatised her, or that Dr Liew would not have recorded it if she did.
I have difficulty with Dr Samuell’s view that Mr W’s actions could not cause “trauma” sufficient to cause an adjustment disorder or depression. He appeared to think it unusual that such behaviour could occur in the workplace at all and, if it did, that it was improbable a person would suffer a psychological condition of the kind described in Mooi (above). Even if unusual, in my view, both are plausible. Sexual harassment in varying forms and degrees is not uncommon in a workplace and an individual’s response depends on circumstances including his or her personal history. That said, I am not satisfied that Ms Taylor experienced trauma to the extent described by Dr Smith because it is not borne out by the other evidence including her own description of her feelings at the time.
I do not accept Dr Smith’s view that Ms Taylor would not have developed her condition had she not been bullied and harassed. However, I am satisfied that her employment did contribute to a significant degree to the development of her condition around April 2011 when Dr Liew prescribed Aropax. By the end of that year, Ms Taylor was seeing a workplace counsellor, and her doctor’s records show regular references to workplace stress and so on. The fact that something else might have also caused her to develop symptoms around that time is not to the point. There is no evidence to suggest she was experiencing difficulties outside of work around that time. I accept that the accumulation of events at work was distressing to her.
I accept Dr Samuell’s evidence that depression can come on without apparent cause but I am satisfied that, more probably than not, Ms Taylor’s employment contributed to a significant degree to her depressive condition from around April 2011.
HAD THE EFFECTS OF MS TAYLOR’S INJURY CEASED BY DECEMBER 2015?
For the reasons below, I find that Ms Taylor’s depressive condition was not an injury for the purposes of the Act by reason of a wilful and false statement she made around the time she commenced employment with DHS. For convenience, I will first consider whether the effects of her employment-related condition had ceased by 10 December 2015.
Dr Smith and Dr Samuell agree that it is characteristic of an adjustment disorder that once the stressor, or its consequences, have ended, symptoms do not persist for more than a further six months. In Dr Smith’s opinion, Ms Taylor’s adjustment disorder has persisted and is now major depression, even after being out of the workplace for four years because the stressor, being the “ongoing bullying she had experienced, the intimidation from [Ms H] and the intimidation of [Mr W] and so on” has become “indelibly imprinted on her” and continued after she went off work (although he could not recall exactly when that was). Dr Smith explains the continuation of Ms Taylor’s condition as being “exposed to a constellation of stressors surrounding her work circumstances and predominantly attributable starting with [Mr W], compounded by the untoward interactions with [Ms H]”.
Ms Taylor gave evidence that she saw Dr Smith and psychologist Melda Nazenin regularly from 2012 and she had consultations with a “life coach” after her sessions with Ms Nazenin ended in March 2014.
In March 2014, Ms Taylor stopped seeing Ms Nazenin. Dr Liew’s notes for April 2014 to February 2015 record no psychiatric symptoms. Ms Taylor gave evidence that, by the end of 2014, she was going out with friends and to the gym, and had reconciled with her sister, who was a reason for the breakup of her relationship in 2012. Ms Taylor gave evidence that her life started to improve until around March or April 2015 when Comcare required her to see Dr Samuell; they did not establish a good relationship and her condition rapidly deteriorated.
From April 2014 through to February 2015, Dr Smith was monitoring Ms Taylor’s care. He gave evidence that she was “doing quite well” and had “improved significantly”. He said she had “significantly improved” by the end of 2014 because she was “away from the toxic environment that had contributed to her psychological problems” and her claim had been accepted. She was “finally at the point where she had been able to recover from the disabling effects” of her relationship with the workplace. He acknowledged there is no record of Ms Taylor suffering psychiatric symptoms in Dr Liew’s consultation notes for the period April 2014 through to February 2015 and he said it was only after March 2015 that she deteriorated again and “spiralled down”. The next record in Dr Liew’s notes of stress is in May 2015.
In Dr Samuell’s view, this history is consistent with Ms Taylor having recovered from the work-related episode of depression by the end of 2014 and being in remission. Dr Samuell did not disagree with Dr Smith that the Comcare process and the cessation of her benefits appeared to be a major stressor from around May 2015 and I find that, more probably than not, it reactivated her symptoms after they had resolved by the end of 2014.
Assuming that Ms Taylor suffered a new condition (or aggravation of her previous condition) around May 2015, it is not necessary finally to determine whether it resulted from her employment. I am satisfied that it was not a continuation of her previous condition, the effects of which had resolved by the end of 2014 (and by 10 December 2015). Any condition that developed around April or May 2015 is not the subject of this decision.
Moreover, a condition caused by the compensation process itself is not compensable. In Federal Broom Co Pty Ltd v Semlitch (1964)110 CLR 626 per Windeyer J at 641:
When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of employment or some characteristic of the work performed or the conditions in which it was performed.
In Madden and Australian Postal Corporation [2008] AATA 411 (20 May 2008), the Tribunal found that the applicant’s condition, which was causally associated with the rejection by the respondent of his claim for compensation, was not a compensable injury; and see Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 which applied Semlitch (above).
SECTION 7(7)
Section 7(7) of the Act provides:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation he or she did not suffer, or had not previously suffered, from that disease.
Carelessness or mistake is not enough to exclude an applicant from compensation. “Wilful” connotes “elements of purpose”: Ianella v French (1968) 119 CLR 84 at 94-95. Section 7(7) requires that the representation be objectively false and made without any belief that it is true: Comcare v Porter (1996) 70 FCR 139 at 150.
“For purposes connected with his or her employment” comprehends representations made at the time an employee enters employment with the employer from whom he or she seeks compensation: Re Makin and Comcare [2010] AATA 432.
On 26 June 2007, Ms Taylor completed a pre-employment Health Status Assessment before commencing employment with DHS. In response to questions about her medical history, she ticked “No” to the question whether she had, or had ever had, “nervous or mental condition” or “anxiety or stress reaction or depression”.
By her own evidence, and according to the medical records, Ms Taylor had a history of depression, or symptoms of depression, on multiple occasions from 1984, including in 2006, the year before she completed the pre-employment form.
In her written statement dated 11 October 2016, Ms Taylor stated with reference to the Health Status Assessment:
24. I applied for employment with Centrelink in early 2007.
25. As part of the employment application I was required to undergo a Health Status Assessment, which was conducted by Dr Jane Malone on 26 June 2007. My solicitor has shown me a copy of the health status assessment. I confirm that my signature appears on page 4 of the report. Above my signature in Section B I have indicated
a. I did not have or ever had a nervous or mental condition,
b. I did not have or ever had anxiety, or stress reaction, or depression
26. I admit that I did not accurately answer those questions. I did not answer those questions accurately because I was afraid that I would not get the job with Centrelink if I did. At the time of the assessment I had my depression under control. I was moving forward with my life. I had gotten over the betrayal of my sister and [my partner] and I did not want my past to dictate my future, or prevent me from gaining employment.
27. I was also embarrassed that I had, at times, suffered from depression and I did not want my potential new employer to know about it, or treat me differently because of it. The actions of [my partner and sister] caused me to lose a lot of confidence in myself and trust in other people. I did not want people knowing what had happened to me.
Ms Taylor concluded her written statement as follows:
67. Apparently now my integrity (e.g. honesty, good character, ethics, morals, fairness, sincerity) as a human being is under question because I made a mistake by not stating on the health assessment that I had suffered some depression in the past. Yes, I wasn’t being honest in that instance which I explained above but after everything I have been through, and what they have taken from me already, I will not let them take anything else from me. I am very proud of my exemplary work record and positive comments received whilst I was working for Centrelink.
68. I have given this statement to the best of my recollection. I cannot remember every single thing that has happened over the past 30 or so years or every doctor I have been to and what we spoke about. My mind gets muddled due to my condition and the medication.
Giving oral evidence, Ms Taylor said she could not recall completing the pre-employment form. As to her statement (above) she said:
MS TAYLOR: I don’t remember filling that form out, so I made an assumption when I – when I put these comments in. Or when I – you know, with the statement. I – unfortunately I don’t recall a lot of things because my medication makes me very confused and I just don’t remember filling out that form at all. So I made an assumption that that would be the reasons why.
…
COUNSEL: Just to be very clear, because there’s a few things that you’ve said in paragraphs 26 and 27. Do I take it that what you have said in those two paragraphs was the assumption that you are describing that you’ve made, as opposed to what you actually recall? --- Sorry, I do not understand what you mean
You talk about recalling certain things in paragraphs 26 and 27. What you have just said is that you actually made an assumption, that you did not recall that? --- I made an assumption. Yes.
And just to be clear, are you saying that that applies to the evidence that you’ve given in paragraphs 26 and 27? They’re effectively assumptions, not recollections? --- No, they’re assumptions, they’re not –- I don’t remember filling that form in, it was such a long time ago.
And just to be clear, when you signed the statement, did you have a recollection of filling out that form --- No.
So when you filled out this statement, your evidence is that what appears in paragraphs 26 and 27 was an assumption? --- Yes, it was an assumption.
The transcript shows that counsel then asked Ms Taylor about paragraph 67 of her statement in which she said she was not being honest in filling out the form:
COUNSEL: … When you’re say you explained above, that’s your ---? --- Assumption.
--- assumption. So do I take it that was an assumption that you were not being honest? --- Yes.
So just for absolute clarity, do you recall that when you filled out the form you were not being honest? --- I don’t recall filling out the form, so I cannot recall – I just don’t remember it, I’m sorry. I really don’t remember.
… When you signed this statement had you made the assumption in terms of your lack of honesty, as you say at paragraph 67, or was it a recollection that you had? --- Sorry, I do not know what you mean.
I am not being overly clear. Again, you’ve indicated that you recall not being honest at paragraph 67? --- I don’t remember it, so I --- … --- I can’t recall being dishonest because I don’t remember filling the form out.
In cross-examination, Ms Taylor was asked:
MR HAWKER: You’ve given evidence about your explanation in your statement being an assumption. Do I understand what you are saying is: that’s my best explanation. I’ve seen the form. That’s the best I can explain the form to this Tribunal? --- The assumption that I made?
Yes? --- Yes.
For Ms Taylor it is submitted that the Tribunal cannot find on the evidence that she made any wilful representation; that the Tribunal should accept her evidence that her written statement represents no more than assumptions made without any recollection of her state of mind at the time she completed the pre-employment form.
The oral evidence above is not particularly easy to follow but I am not persuaded that Ms Taylor’s written statement represents no more than assumptions about her statement of mind when she completed the pre-employment form. Her written statement is unequivocal; she made unqualified statements about her reasons for not declaring her previous depression that were entirely consistent with her circumstances at the time and explained her motivation for not declaring her history to a prospective employer. She referred in detail to events in her life, that she had her depression “under control”, and she acknowledged unequivocally that she was not honest in completing the form.
Even if Ms Taylor has no recollection of actually completing the form, nothing in her written statement suggests any difficulty recalling her reasons for answering as she did. I am not satisfied her written statement represents “assumptions” only. Taking into account her circumstances at the time, I am satisfied that Ms Taylor made the declarations in the pre-employment form concerning her history without any belief that they were true.
There is nothing to suggest that Ms Taylor was suffering memory loss when she completed the pre-employment form. Her evidence was that, at the time, her depression was “under control”. The inescapable conclusion, based on her own statement, is that she made a false statement without any belief that it was true.
Turning to the claim for compensation which Ms Taylor completed on 27 January 2012, she described her illness or injury as “severe headaches and blood pressure problems. Anxiety, extreme emotional distress”. In response to the question “Have you ever had a previous similar symptom, injury or illness work-related or otherwise?” she ticked “No”.
For the purposes of s 7(7), the wilful and false representation must be a representation that the employee did not suffer, or had not previously suffered, from that disease. There may be no deliberate misrepresentation where, for example, an applicant had suffered only minor back complaints previously, or where she had not been diagnosed or treated for a particular condition at the time of the representation: Re Iliadis and Comcare [1996] AATA 602; Re Duffy and Comcare [1996] AATA 676.
A representation that an employee did not suffer, or had not previously suffered, from that disease is a reference to a condition that is the same, or substantially the same, as the disease in respect of which compensation is claimed. The representation must concern that disease and not merely failure to disclose that he or she previously suffered from a symptom: National Australia Bank Limited v Georgoulas [2013] AATA 512.
Ms Taylor gave evidence that she does not see herself as “a depressed person”, rather as someone who had difficulty dealing with some difficult situations such as her fiancé’s suicide, being a single mother, caring for a child with haemophilia, and the break-up of her later relationship. She sees herself as having bad days and times when she was not coping. She acknowledged that she had suffered periods of depression in the past but said they were not the same as what she was experiencing at work at the time she completed the claim form.
In my view, there is sufficient room for doubt as to Ms Taylor’s state of mind when she completed the claim form in 2012 that I cannot be satisfied that her representations about her history were wilful and false but, in the end, nothing turns on this.
CONCLUSION
For these reasons, I am satisfied that:
(i)Ms Taylor’s employment contributed to a significant degree to a psychological condition that was outside the bounds of normal mental functioning and behaviour and was a disease for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
(ii)the effects of her injury ceased by 10 December 2015; and
(iii)by reason of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the disease suffered by Ms Taylor is not an injury for the purposes of the Act.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey
............................[sgd]....................................
Associate
Dated: 22 August 2017
Date(s) of hearing: 25 May 2017, 26 May 2017 & 1 June 2017 Counsel for the Applicant: Mr H Somerville Solicitors for the Applicant: Stacks/Goudkamp Counsel for the Respondent: Mr M Hawker Solicitors for the Respondent: Sparke Helmore
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