TMLP and Comcare

[2010] AATA 218

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 218

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0719

GENERAL ADMINISTRATIVE DIVISION		)
Re		TMLP

Applicant

And COMCARE

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date22 March 2010

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

...............................................

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2009/0719

TMLP

and

COMCARE

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

MONDAY, 22 MARCH 2010

MR R. TYLER appears for the applicant
MR J. WALLACE appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

As far as the medical evidence is concerned, I had a 2003 report by Dr Greenberg who is a psychiatrist, and a 2009 report by Dr Greenberg.  The latter report was a comprehensive report that took in to account the information that was provided to Dr Greenberg and although reference is made in that report to the reluctance of Ms TMLP to provide full and frank disclosures of various issues, in my view, the report by Dr Greenberg is a comprehensive and reasonable report from a psychiatrist who is an extremely experienced practitioner, not only in this field, but in other fields related to psychiatric illness and diagnoses.

In her report, dated 13 March 2009, Dr Greenberg concluded that Ms TMLP suffers from a personality disorder rather than a psychological illness, and said that there was no evidence that she was depressed or clinically anxious.  Dr Greenberg noted that Dr Saxena had referred to Ms TMLP suffering from anxiety and depression and Dr Greenberg stated that it was her belief that as a general practitioner, Dr Saxena when reaching that conclusion, may not necessarily have been taking the criteria set out in DSM-IV, which is the publication that medical practitioners are required to use when making a diagnosis, that he didn’t necessarily take all those into account and that it was as possible that in using those terms Dr Saxena was speaking as a general practitioner when describing symptoms of those illnesses, rather than making a diagnosis of depression and anxiety.

She also stated that its was possible that as Ms TMLP’s treating general practitioner, that Dr Saxena may not have necessarily had the degree of objectivity that somebody who is not the treating general practitioner might have in making a diagnosis.  That is not to say that Dr Saxena is not a competent general practitioner.  It is just that when diagnosing a psychological condition of one’s own patient there may well be a less than total objectivity in doing that.

Dr Syrota said that it would appear that Ms TMLP has developed symptoms of depression in the context of work related difficulties and, once again, Dr Syrota did not make, what I would conclude from her brief report, to be a DSM-IV diagnosis of anxiety or depression.  She referred – in fact, she did use the words symptoms of, and there is no dispute that there are in this case, and even the respondent had conceded, that on many occasions in the time line of Ms TMLP’s difficulties with Centrelink and complaints against Centrelink, there were symptoms of anxiety and depression.  She felt upset and she felt stressed on various occasions.  And there is no denying that these occurred.  The question is whether those symptoms constitute a diagnosis under DSM-IV.

I have already referred to Dr Saxena in the context of Dr Greenberg’s report.  Dr Saxena said in his report that he diagnosed her as having stress and anxiety and that tends to support Dr Greenberg’s conclusion that what he meant there was that she was showing symptoms of anxiety and depression.  The other main medical evidence comes from Professor Burrows, who is an extremely eminent psychiatrist of many years experience in diagnosis and in clinical matters and he said in his report that she suffered from stress, anxiety and depression and they were the words he used.  And when I asked him to clarify his diagnosis he said that he agreed with Dr Greenberg that she showed symptoms – that is, Ms TMLP showed symptoms of stress and anxiety and, in fact, he also said that she had paranoid tendencies which he referred to her lack of being forthcoming and providing information to him and to other doctors and government agencies.

He said that that had caused him some difficulty and he would have preferred to have carried out more tests and he would have preferred to speak to Dr Saxena and others.  However, he was quite clear in his conclusion that although she showed, at times, symptoms of anxiety and depression, he was clear that – he agreed with Dr Greenberg – that she suffered more from a personality disorder rather than a diagnosable psychological condition.

In the case of Comcare v Mooi (1996) 137 ALR 690, it was held that a psychological condition must be outside the boundaries of normal mental functioning. Now, I refer to the relevant sections of the Act [Safety, Rehabilitation and Compensation Act 1988].  But there is also in the Act, I see, that injury is defined to include disease and the definition of disease is couched in broad terms, having regard to the width of the definition of its first component, which is ailment, and ailment includes any disorder and disorder is not defined but according to the Macquarie Dictionary, Third Edition, the relevant meaning of that word is a derangement of physical or mental health or function.  And, in fact, section 4(1) of the Act refers to ailment itself and the word must be given its ordinary English meaning, and ailment includes a morbid affection of the body or mind or indisposition, and the word morbid is defined in the dictionary to include affect by, proceeding from or characteristic of disease.

So, putting all that together, there has to be a diagnosable condition in relation to psychological condition, as set out in Comcare v Mooi, that has to be outside the boundaries of normal mental functioning.  And as this matter does refer to a psychological condition, I am required to take note of all the evidence but, given that I am not a doctor and I am guided by the medical evidence, I have to reach a conclusion based on the medical evidence unless there is some reason why I should not do so.  In that regard, I accept the evidence of Professor Burrows and Dr Greenberg.  They are, as I have already indicated, experienced and highly qualified practitioners, and both refer to symptoms of depressive symptoms and make no formal diagnosis of a depressive disorder or any other similar psychological condition.

I have not only been bound by their evidence.  I also take into account my earlier comments that for some time after 18 March 2008, Ms TMLP did not mention any stress or anxiety to Dr Saxena and he did not provide any treatment for anxiety or depression so that even if he had made a diagnosis at the time, which examination of his clinical notes suggests quite clearly that he didn’t, there would probably have been some treatment prescribed.  Whether that was – would probably have been by way of medication – it may have been cognitive therapy or other type of treatment.  There was none in this case, which supports the conclusions drawn by both Dr Greenberg and Professor Burrows that there was no diagnosis of an anxiety or depressive disorder at the time.  And I have already referred to the Stilnox and Valium.  Well, the Stilnox is certainly not an anti-depressant.

For those reasons, I find that there was not a psychological condition outside the boundaries of normal mental functioning as required under the Act and I find that in those circumstances there was no ailment in relation to a psychological condition and, as such, there could be no injury.  And, consequently, as there was no injury, Ms TMLP cannot succeed in her application for compensation and, consequently, given my findings in relation to the first of the issues, there is no need for me to consider the other issues such as contribution, if any, by her employment, and the question of reasonable administrative action.

Because even if I were to find that those matters were made out, the fact that there is no injury under the Act would preclude her from succeeding in her application and, on that basis, I affirm the decision under review.

Ms TMLP, I am terribly sorry that I cannot find in your favour but it would be pointless for me to go on and for Mr Tyler to go on to make submissions which I may have given some weight to.  And I will give weight to them but you understand from the way I have structured my decision that, unfortunately, you did not quite meet the first criterion and, therefore, there is no way I can find in your favour.  So I am not suggesting in any way that you have not suffered or that you haven't had a difficult time and I accept what you say, that you believe you have suffered a number of grievances with your employer, and I cannot really make any decision on those, only to apply the Act.  And in applying the Act, once again, I am unfortunately unable to find in your favour.

END OF EXTRACT