Tervel and Comcare (Compensation)

Case [2019] AATA 1304

Tervel and Comcare (Compensation) [2019] AATA 1304 (28 May 2019)

Division:GENERAL DIVISION

File Number:           2016/2733

Re:Ms Evelina Tervel

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr P W Taylor SC, Senior Member

Date:28 May 2019

Place:Sydney

The 23 March 2016 decision under review is set aside. In substitution for that decision, the Tribunal decides that as at 1 September 2015 Ms Tervel continued to suffer a disease that had been materially contributed to by her employment. That disease therefore constituted an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth). That injury resulted in incapacity for work up to at least 1 September 2015.

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for medical expenses and incapacity payments in respect of Major Depressive Disorder – compensation claim made under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant continues to suffer a “disease” materially contributed to by her employment – whether applicant has an ongoing incapacity for work as a result of her depressive condition – decision under review set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 20, 24, 27

CASES

Bromham and Comcare [2017] AATA 1515

Cheung v Administrative Appeals Tribunal [2009] FCA 241; 176 FCR 20

Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187

Goodricke and Comcare [2017] AATA 1249

Hocking and Australian Postal Corporation [2002] AATA 963

Hopkins and Comcare [2016] AATA 742

HSDR and Comcare [2017] AATA 779

Ilsley v Wattyl Australia Pty Ltd [1997] FCA 427; (1997) 144 ALR 510

Kavas and Comcare [2011] AATA 935

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

LYHH and Comcare [2017] AATA 1586

Prain and Comcare [2016] AATA 459

Shales and Commonwealth Bank of Australia [2017] AATA 1369

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253

Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

28 May 2019

  1. Ms Tervel worked for the Child Support Agency within the Department of Human Services between April 2003 and October 2006.  During that time she suffered work related injuries - a shoulder strain injury (in May 2004) and later (in October 2006) a depressive disorder - that ultimately resulted in her ceasing work, and being assessed as unlikely to be able to return to work.

  2. In a 27 October 2008 consent decision, this Tribunal:

    (a)affirmed Comcare’s 7 November 2007 decision that Ms Tervel had no continuing entitlement to compensation for either incapacity or medical expenses (under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) ss 16 & 19) in relation to the May 2004 shoulder and arm muscle strain injury; and

    (b)determined that Comcare was liable to pay Ms Tervel compensation (under SRC Act s 14) for an “injury” (specifically, a major depressive disorder that had been materially contributed…

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AGLC
Tervel and Comcare (Compensation) [2019] AATA 1304
Case
[2019] AATA 1304
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Tervel against a decision by Comcare to cease her entitlement to medical expenses and incapacity payments. Ms Tervel sought compensation under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for Major Depressive Disorder, alleging that her employment materially contributed to this condition and that she continued to suffer an incapacity for work as a result. The Senior Member of the Administrative Appeals Tribunal was required to determine whether Ms Tervel's depressive disorder was a compensable "disease" and whether she had an ongoing incapacity for work stemming from that condition.

The Tribunal considered the interplay between the "material contribution" test for classifying a compensable injury and the requirement that an injury must "result from" employment to establish ongoing incapacity or treatment needs. While acknowledging the relevance of material contribution to the initial classification of a disease, the Tribunal found it unnecessary to definitively resolve this tension for the present proceedings. Instead, the focus shifted to whether Ms Tervel's depressive disorder, which had incapacitated her since October 2008, continued to do so up to the time of Comcare's cessation decision in March 2016. The Tribunal noted that even if Ms Tervel's condition arose from her perception of physical symptoms related to her workplace equipment and activities, this did not preclude it from being materially contributed to by her employment, distinguishing her circumstances from cases involving pre-existing conditions or time-limited adjustment disorders.

The Tribunal's reasoning emphasised that Ms Tervel's depressive disorder had never resolved and continued to have an actual and material effect on her capacity for work. Evidence indicated that Ms Tervel consistently attributed her pain to her work experience and was receptive to chiropractic advice linking physical pain to her emotional state, even when this conflicted with medical advice. Despite concerns raised by medical professionals regarding her reliability as a historian and potential exaggeration of symptoms, the Tribunal found that her condition predisposed her to focus on work-related physical pathology. Crucially, medical reports, including those from Dr Pascall and Dr Hong, indicated that her psychological condition became well-established early in her employment, was a consequence of her musculoskeletal complaints, and was not superseded by other events.

The Tribunal set aside Comcare's March 2016 decision and substituted its own decision. This involved finding that Ms Tervel's depressive disorder continued to incapacitate her and that her employment had materially contributed to this condition, thereby entitling her to ongoing compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

If it were necessary to resolve the apparent tension between the “as a result of” criterion and the “material contribution” proposition in dealing with Comcare’s March 2016 cessation of entitlement decision, I would favour the view that the “material contribution” criterion is relevant to the classification of a disease as a compensable injury for the purposes of the (pre 2007 version of) the SRC Act. But it is not the relevant criterion in determining whether such an injury results in contemporary incapacity or treatment need. However, it is not in my view necessary to reach a concluded view on that question in resolving the present proceedings. As will appear later in these reasons, the depressive disorder that incapacitated Ms Tervel at the time of the October 2008 decision never resolved, and continued to incapacitate her, right up until the time of the March 2016 decision. Its effect, in that regard, was both actual and material. Characterisation of employment as a material contribution to a disease (or incapacity) does not require satisfaction that it was a major or dominant cause, nor that there was no “non-employment” contribution:- Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795 at [23] & [34]; Hopkins and Comcare [2016] AATA 742 at [196]. Even if it be the case (as I consider the evidence establishes) that Ms Tervel’s depressive condition arose in 2005 / 2006 out of her erroneous perception of the significance of the physical symptoms she suffered in relation to her workplace equipment and activities, the evidence comfortably establishes that she had actually had those difficulties. Accordingly, her depressive condition nevertheless may, and should, be regarded as having been materially contributed to by her employment:- Wiegand v Comcare Australia supra – at [24]-[26]. Ms Tervel’s circumstances, where her disorder arose after, and substantially because of, her reaction to those difficulties, are distinguishable from those in cases where the claimant worker had pre-existing depressive conditions or pain syndromes, and where the compensable injury was either in the nature of an aggravation of those conditions or characterised as an “adjustment disorder” (i.e. an inherently time limited disorder):- see LYHH and Comcare [2017] AATA 1586, Goodricke and Comcare [2017] AATA 1249 and Prain and Comcare [2016] AATA 459.THE 2004 TO 2006 BACKGROUND It is necessary to outline the underlying sequence of events, before further addressing the parties competing contentions in relation to the March 2016 decision. May 2003 to July 2004:- Ms Tervel began to experience back and neck pain at work. During the following months various modifications were made to her work station equipment. Despite those changes she complained that her neck, shoulder and back pain had become worse, and that she had begun to suffer from headaches. In July 2004 Ms Tervel lodged, and Comcare accepted, a claim relating to her shoulder strain injury. However, she continued full-time work until January 2005.

Evidence

Evidence Before The Court

Much the same view is apparent in Dr Friend’s attendance note of 12 June 2009. It records Ms Tervel’s continued attribution of pain to her CSA work experience, and the influence of her chiropractor’s opinions (apparently linking physical pain to her emotional state) in preference to the opinions and diagnoses of her medical advisers. That pre-occupation with the significance of her workplace experience, her receptiveness to chiropractic advice linking emotions and pain, her “invested interest” in being sick, and Ms Tervel’s resistance to medical advice about the real nature of her condition, is again evident in a note of a telephone discussion in late November 2010 between Dr Friend and Ms Tervel’s treating psychologist, Dr Robinson. About three months after that discussion, Dr Robinson took the matter up with Ms Tervel’s chiropractor. She obtained from him a history where Ms Tervel sometimes presented with severe muscular spasms and sometimes (but not consistently) with symptoms suggestive of nerve damage or compromise. Irrespective of the existence of observable physical signs, Ms Tervel typically reported the same level of pain. In the light of this history Dr Robinson asked the chiropractor for his view about the likelihood that Ms Tervel was deliberately exaggerating her symptoms. But, despite conceding that Ms Tervel’s presentation and complaints did not “fit any logical category at all” he was quite unsure that Ms Tervel was intentionally exaggerating. His doubt related to the fact that she inconsistently presented both with and without physical signs related to her pain complaints. And, in that context, it may not be irrelevant to note that it was only a few months later when Ms Tervel was formally diagnosed with chronic fatigue syndrome:- see paragraph 68 above.DR HONG’S 2016 REPORT AND HEARING EVIDENCE Dr Hong re-assessed Ms Tervel in late November 2016, and provided a further report dated 19 December 2016. His report addressed Ms Tervel’s intervening history, some of the medical reports he had previously considered, and a number of medical reports additional to those he had specifically noted in his 2015 report. Those additional reports included: (a)Dr Pascall’s reports of 12 April 2006 and 19 June 2008:- see paragraphs 19, 35 & 48 above.(b)Dr Friend’s report of 16 February 2010 – (apparently reporting that Ms Tervel’s psychological symptoms had improved but that she was experiencing some side effects from her psychiatric medication); and(c)Dr Champion’s 9 August 2008 report – see paragraph 49 above. The intervening history Dr Hong obtained from Ms Tervel included an unexplained period of exacerbated pain in the first half of 2016. That had triggered a worsening in her depressive condition and increased anxiety – neither of which had improved despite the lessening of her pain symptoms in the latter half of 2016. This appears to have led Dr Hong to the view that Ms Tervel suffered from “melancholic depression”. He speculated that either her exacerbated physical symptoms had caused deterioration in her psychiatric condition, or her psychiatric deterioration had exacerbated her physical symptoms. But whichever of those possibilities was the more accurate, and consistent with the views summarised in the preceding section of these reasons, Dr Hong rejected the idea that there was any proper basis to conclude that Ms Tervel was either intentionally or unintentionally exaggerating her symptoms.

Decision

Reasons for decision

Perhaps rather surprisingly, Comcare’s 13 November 2007 decision did not refer to the psychiatric reports of either Dr Prior or Dr Miller. Instead it relied principally on Ms Canli’s reports of 11 October 2006 and 6 February 2007. In so doing it applied essentially the same reasoning process as that involved in the 8 May 2007 decision. It accepted Ms Canli’s 11 October 2006 “Generalised Anxiety Order” diagnosis. But it also had regard to parts of Ms Canli’s 11 October 2006 report (where Mr Tervel had expressed frustration at not having been allocated to a more satisfying role within the CSA) and her 16 February report (where she had described Ms Tervel’s reaction to the 13 October 2006 return to work meeting). Comcare interpreted those passages as justifying the conclusion that an operative cause of Ms Tervel’s diagnosed condition was her failure “to obtain a promotion … or benefit in connection with” her employment. The effect of that conclusion was to preclude Ms Tervel’s condition from characterisation as a compensable “injury”, having regard to the then current SRC Act provisions. 2008 - THE AAT REVIEW APPLICATION AND DECISION On 25 January 2008 Ms Tervel lodged applications at the Tribunal to review Comcare’s 7 and 13 November 2007 decisions. The application relating to the 7 November 2007 decision was rather ambitious, given the contents of the April, July and November 2006 occupational physician’s reports, and the most recent (12 April 2007) report. On the other hand, my earlier description of the reports relied on, and the reasoning contained, in Comcare’s 13 November 2007 decision, suggests there was ample justification for the application to review that decision. In the following months, other information provided further justification. That information included the following additional reports:- (a)2 January 2008:- Dr Kathryn Lovric, consultant psychiatrist(b)24 April 2008:- Dr Burman, consultant psychiatrist(c)27 May 2008:- Dr Clark, consultant psychiatrist(d)19 June 2008:- Dr Virginia Pascall, occupational physician(e)9 August 2008:- Dr Champion, rheumatologist(f)17 October 2009:- Dr Anne-Marie Friend, consultant psychiatrist In January 2008 Dr Lovric had been asked to assess Ms Tervel as a follow up to Dr Miller’s 16 May 2007 assessment, and Dr Miller’s opinion that Ms Tervel would likely be fit to undertake a graduated return to work by July or August 2007. Dr Lovric recorded Ms Tervel’s denial of any past history of depression, anxiety or any other psychiatric symptoms, and noted Dr Miller’s previous diagnosis. Based on the history of Ms Tervel’s complaints, Dr Lovric opined that Ms Tervel had probably became frankly depressed in 2006 and developed symptoms that satisfied the Major Depressive Episode diagnostic criteria. Dr Lovric thought that Ms Tervel’s January 2007 presentation had significantly improved since May 2007, but she did not believe that Ms Tervel was yet ready to resume work. She had suffered from a Major Depressive Disorder (that was in partial remission) and a Chronic Pain Disorder with problems associated with psychological factors that were difficult to assess. Dr Lovric perhaps lamented that both Ms Tervel’s (by then) long period off work, and her current perception of chronic pain, were poor prognostic factors in relation to the prospect of Ms Tervel’s recovery and return to work.

Ratio Decidendi

Legal Principle Established

The bare fact of Ms Tervel’s history of chiropractic treatment was known to Comcare by at least early March 2006. It was at that time she sought compensation for chiropractic treatment, and the fact that she had previously found it helpful was one of the reasons why consideration was given, at that time, to Comcare funding future treatment costs. Perhaps more significantly, in her June 19 June 2008 report Dr Pascall had considered both Ms Tervel’s history of back complaints and chiropractic treatment, as well as the consultations around the time of the August 2003 motor vehicle accident. It may be that Dr Pascal had limited information about the nature and extent of Ms Tervel’s pre-employment chiropractic treatment. But it is quite clear from Dr Pascall’s report that she was alert to the possible causal significance of Ms Tervel’s pre-employment history. It is also clear that Dr Pascall thoroughly considered the available evidence relating to the potential causes of Ms Tervel’s spinal pain complaints. Notwithstanding her awareness of the chiropractic treatment history, the 2003 GP attendances, and her own suspicions about the likelihood of Ms Tervel having had some pre-CSA employment vulnerability, Dr Pascall was quite emphatic in her views. These were that (i) Ms Tervel’s psychological condition became well established at an early stage of her CSA employment, (ii) was a consequence of her original musculoskeletal complaint, (iii) was not superseded by the effects of the August 2003 motor vehicle accident and, (iv) was properly characterised as a work related condition, notwithstanding that her original musculoskeletal complaint was, in reality, a temporary condition of short duration. MALINGERING AND EXAGGERATION It is readily apparent from at least some of the medical reports that Ms Tervel was not regarded as an impressively consistent and reliable historian. At the end of 2008 Dr Lovric had expressed concern to that effect:- see paragraph 52 above. In her June 2008 report Dr Pascall had commented on Ms Tervel’s apparent unreliability as a historian, particularly in the light of the adverse comments Dr Burman had made in his report. However, Dr Pascall recorded her doubt that Ms Tervel was being intentionally obtuse or evasive. Her view was that Ms Tervel’s condition itself predisposed her to “nullify any factors that are contradictory to her paradigm of significant physical pathology caused by work related factors”. Much the same view is apparent in Dr Friend’s attendance note of 12 June 2009. It records Ms Tervel’s continued attribution of pain to her CSA work experience, and the influence of her chiropractor’s opinions (apparently linking physical pain to her emotional state) in preference to the opinions and diagnoses of her medical advisers. That pre-occupation with the significance of her workplace experience, her receptiveness to chiropractic advice linking emotions and pain, her “invested interest” in being sick, and Ms Tervel’s resistance to medical advice about the real nature of her condition, is again evident in a note of a telephone discussion in late November 2010 between Dr Friend and Ms Tervel’s treating psychologist, Dr Robinson. About three months after that discussion, Dr Robinson took the matter up with Ms Tervel’s chiropractor. She obtained from him a history where Ms Tervel sometimes presented with severe muscular spasms and sometimes (but not consistently) with symptoms suggestive of nerve damage or compromise. Irrespective of the existence of observable physical signs, Ms Tervel typically reported the same level of pain. In the light of this history Dr Robinson asked the chiropractor for his view about the likelihood that Ms Tervel was deliberately exaggerating her symptoms. But, despite conceding that Ms Tervel’s presentation and complaints did not “fit any logical category at all” he was quite unsure that Ms Tervel was intentionally exaggerating. His doubt related to the fact that she inconsistently presented both with and without physical signs related to her pain complaints. And, in that context, it may not be irrelevant to note that it was only a few months later when Ms Tervel was formally diagnosed with chronic fatigue syndrome:- see paragraph 68 above.DR HONG’S 2016 REPORT AND HEARING EVIDENCE