Tracey Rand and Comcare

Case [2014] AATA 672

[2014] AATA 672  

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/3816

Re

Tracey Rand

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

RM Creyke, Senior Member
Dr B. Hughson, Member
Date 12 September 2014  
Place Canberra

The decision under review is affirmed. That means the applicant is not entitled to compensation for medical treatment or to incapacity payments as from 15 March 2005.

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

RM Creyke, Senior Member

Catchwords

COMPENSATION – Commonwealth employees –- whether applicant’s adjustment disorder with mixed anxiety and depressed mood, for which liability was accepted, was an effective and operative cause of incapacity for work and need for treatment from 15 March 2005 onwards – matter on remittal from the Federal Court.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 16, and 19.

Cases

Rand v Comcare [2014] FCA 584
Re Rand and Comcare [2013] AATA 580
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Kahn (2007) 156 FCR 536

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Secondary Materials

American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000) (DSM – IV – TR, 2000) 679 (DSM 4).

REASONS FOR DECISION

RM Creyke, Senior Member
Dr B. Hughson, Member

  1. Ms Tracey Rand, born 1960, had sought review by the Tribunal of a decision by Comcare dated 25 August 2011 denying liability for ‘aggravation of post-traumatic stress disorder’.

  2. On 19 August 2013, the Tribunal affirmed the decision under review.  Ms Rand appealed to the Federal Court which, on 5 June 2014 allowed the appeal and remitted the matter to the Tribunal to reconsider its decision.[1]

  3. The Federal Court identified only one issue for reconsideration, namely, that Ms Rand’s employment with the Department of Health and Ageing ‘for which liability had been accepted in 2002 … remained an effective and operative cause of incapacity for work and need for treatment from 15 March 2005 onwards’.

  4. On 8 September 2013, the Tribunal reconsidered the issue remitted.  The reconsideration, with the consent of the parties, was on the papers.  Written submissions were provided by both Ms Rand and Comcare for the purposes of the reconsideration.

    Background

  5. Ms Rand had been employed by the Department of Health and Ageing (agency) between December 1998 and February 2004. In February 2004, Ms Rand moved to a position in the National Blood Authority (Authority). Prior to 1998 Ms Rand had been employed by the Australian National Parks & Wildlife Service. 

  6. In 1994 Ms Rand made a claim for compensation for anxiety/depression under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The claim was accepted by Comcare on 21 November 1994 but was ceased from 26 June 1996. Ms Rand had attributed her condition to her ‘inability to cope with conflict created by clashing work tasks and conflicting expectations of supervisor’.

  7. In 2002, Ms Rand suffered a breakdown. She attributed this to being bullied initially by her supervisor at the agency, commencing…

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AGLC
Tracey Rand and Comcare [2014] AATA 672
Case
[2014] AATA 672
Decision Date

CaseChat Overview and Summary

In the case of Tracey Rand and Comcare, the Administrative Appeals Tribunal (AAT) examined whether Ms. Rand's adjustment disorder with mixed anxiety and depressed mood, for which liability was accepted, constituted an effective and operative cause of her incapacity for work and need for treatment from 15 March 2005 onwards. The Tribunal had to decide if Ms. Rand was entitled to compensation for her condition under section 16 and/or section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The legal issues revolved around whether Ms. Rand's condition was a continuing compensable injury or if she had suffered a new injury that was employment-related.

Ms. Rand had a history of psychiatric conditions that varied over time, and the Tribunal had to navigate through these varied diagnoses to determine the current state of her condition. The Tribunal concluded that after 15 March 2005, there was no identifiable stressor, either in Ms. Rand's workplace or private life, that could have caused a new or aggravated adjustment disorder. The evidence showed that almost none of the factors impacting Ms. Rand's moods were listed after that date, and there was no new stressor to indicate a new episode of adjustment disorder. Consequently, the Tribunal affirmed its findings that Ms. Rand's claim was not caused by incidents at her employment with the Authority after 15 March 2005, and she was not suffering from a compensable injury from that date.

The Tribunal's reasoning was grounded in the medical evidence presented, including Dr. Tym's clinical notes and the reports of other psychiatrists, which did not indicate any new stressors or episodes of adjustment disorder after the specified date. Given that Ms. Rand's condition was accepted up to 15 March 2005, she was entitled to compensation for medical treatment and incapacity payments up to that date. However, from 15 March 2005, her condition did not remain an effective and operative cause of need for treatment or incapacity. The Tribunal thus upheld the decision that Ms. Rand was not entitled to compensation from 15 March 2005.

In conclusion, the Tribunal's decision reaffirmed that Ms. Rand's claim for compensation after 15 March 2005 was not substantiated by the evidence presented. The Tribunal's findings were based on the absence of identifiable stressors and the lack of medical evidence supporting a new or aggravated adjustment disorder from that date.

Orders

Orders of the court

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Background

Background to the litigation

On 8 September 2013, the Tribunal reconsidered the issue remitted. The reconsideration, with the consent of the parties, was on the papers. Written submissions were provided by both Ms Rand and Comcare for the purposes of the reconsideration.Background Ms Rand had been employed by the Department of Health and Ageing (agency) between December 1998 and February 2004. In February 2004, Ms Rand moved to a position in the National Blood Authority (Authority). Prior to 1998 Ms Rand had been employed by the Australian National Parks & Wildlife Service. In 1994 Ms Rand made a claim for compensation for anxiety/depression under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The claim was accepted by Comcare on 21 November 1994 but was ceased from 26 June 1996. Ms Rand had attributed her condition to her ‘inability to cope with conflict created by clashing work tasks and conflicting expectations of supervisor’. In 2002, Ms Rand suffered a breakdown. She attributed this to being bullied initially by her supervisor at the agency, commencing in December 1999. In June 2000, Ms Rand moved to a different section of the agency. After some months, she claimed she was being bullied by her new supervisor. Comcare accepted liability on 20 December 2002 for a condition it later described as: ‘adjustment reaction with anxious mood’, with a date of injury of 11 June 2000. Liability for that condition continues. Although the Tribunal accepted the revised diagnosis of adjustment disorder with anxious mood, as has the Federal Court, it is pertinent to note that the diagnoses of Ms Rand’s psychiatric conditions have varied over the 20 year period of her applications to the Tribunal. On 30 June 2001, Dr Kathy Rohan, a psychiatrist who had a consultation with Ms Rand in 2001 with a view to becoming her treating psychiatrist while her treating psychiatrist was overseas, had diagnosed major depression. Dr Robert Tym, Ms Rand’s long-standing psychiatrist, has at various times diagnosed post traumatic stress disorder, adult attention deficit hyperactivity disorder, and major depressive disorder. Dr Klent, who was her general practitioner in 1991, had diagnosed her with ‘reactive depression’. Dr Jonathan Phillips, a consultant psychiatrist, advised in his reports of 8 May 2012, and 5 July 2012 that she had ‘a persisting group of depression spectrum symptoms’, although he accepted the adjustment disorder diagnosis. Dr John Champion, a consultant psychiatrist, in his report of 16 February 2012, diagnosed chronic anxiety/depressive syndrome. The absence of agreement as to the diagnosis of her psychiatric conditions over the course of Ms Rand’s applications for compensation, including this current application, has added to the complexity of this matter. Ms Rand moved to the Authority in 2004. She ceased work on 17 June 2010, but has not resigned from the Authority. At the initial Tribunal hearing of the 2011 claim, the Federal Court accepted that the Tribunal disposed of the following issues:·The diagnosis of Ms Rand’s condition, which was that she suffered from an adjustment disorder with mixed anxiety and depressed mood, symptoms of which have been present intermittently since at least 1987.·The condition from which Ms Rand suffers was a disease but was not compensable under the Act in terms of the issues next considered.·Ms Rand did not suffer an aggravation of her condition while employed by the Authority. ·The recurrence of Ms Rand’s condition was not contributed to, to a material degree/significant extent, by her employment by the Authority.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that although there were many factors outside the workplace, some long-standing, which impacted on Ms Rand’s moods, almost none were listed after 15 March 2005, either together or on their own, in Dr Tym’s contemporaneous clinical notes, or in the clinical notes of the Gunghalin Medical Practice. In those circumstances, there is no evidence of an identifiable stressor which was capable of giving rise to a new adjustment disorder condition after that date. Nor is the evidence based on Ms Rand’s treatment regime sufficient to indicate she was suffering a new episode of adjustment order.Conclusion In summary, Ms Rand did not have stressors which continued from 15 March 2005 while she was employed by the Authority. So she did not have a chronic form of adjustment disorder. Nor did she suffer an aggravation of her adjustment disorder after 15 March 2005. There is no new stressor which has been identified either attributable to her employment with the Authority, or from matters in her private sphere, to indicate that they precipitated an aggravation of an adjustment disorder. In those circumstances, the Tribunal affirms its findings that Ms Rand’s claim was not caused to the relevant standards by incidents at the Authority. The consequence is that after 15 March 2005, Ms Rand was not suffering from a compensable injury. That means her condition did not remain an effective and operative cause of need for treatment or incapacity from 15 March 2005. As Ms Rand’s adjustment disorder had been accepted up to 15 March 2005, she would be entitled to compensation under section 16 for medical treatment in respect of her injury, and to incapacity payments under section 19 in relation to her injury up to that date, but not from 15 March 2005.

Ratio Decidendi

Legal Principle Established

In effect that requires an examination of two issues:·Does Ms Rand continue to suffer from the effects of the accepted adjustment disorder which had been contributed to by her employment with the agency; or·Has Ms Rand suffered a new injury, being an aggravation of a pre-existing condition which was, to the requisite standard, contributed to by her employment by the Authority. Consideration Ms Rand has an accepted condition of ‘adjustment disorder with mixed anxiety and depressed mood’. It is that condition which was accepted by Comcare in 2002 and which is the subject of the Federal Court’s order. Matter No 2011/3816, the current and relevent claim by Ms Rand, concerned an application for acceptance of liability for post-traumatic stress disorder, with a date of injury of 17 June 2010. That claim, reframed as an aggravation of post-traumatic stress disorder, was rejected by Comcare on 25 August 2011, and was the subject of the initial application to the Tribunal. On the first day of the initial hearing by the Tribunal it was agreed to abandon the claim for post-traumatic stress disorder (PTSD) as diagnosed by Dr Tym. Another condition she was alleged to have suffered, according to Dr Tym was adult attention deficit hyperactivity disorder (ADHD). The first condition was abandoned because the criteria were not made out, and the second was not pursued because the nature of the condition precluded it being employment-related.[4] Accordingly the rehearing has proceeded on the basis that the claim only relates to whether Ms Rand is entitled to compensation under section 16 and/or under section 19 of the Act for her accepted condition of an adjustment disorder with mixed anxiety and depressed mood.[5][4] Transcript of Proceedings, Monday 3 June 2013, 2, 3. [5] Respondent’s Written Submissions, 5 September 2014, at [18]. Ms Rand has asserted in her submission for the purpose of this hearing:…it is sufficient for the Tribunal to set aside the decision under review, and substitute a decision that the Applicant continued to suffer (at least as at the date of the last Tribunal hearing) from the effects of the compensable adjustment disorder which was contributed, to a material degree, by her employment with DOHA, and for which liability was accepted in 2002, and that she is entitled to compensation under ss 16 & 19 to the extent that such treatment or incapacity was incurred ‘in relation to’ (as to treatment) and ‘as a result of ‘ (as to incapacity) that compensable condition. The Tribunal notes that the date of the last Tribunal hearing was 13 August 2013. Accordingly, Ms Rand’s submission is that her accepted condition continued at least between 15 March 2005 and 13 August 2013. Comcare’s submission in response was:… the evidence before the Tribunal, particularly the evidence of Dr Champion and the contemporaneous medical reports of Dr Tym and Dr Rohan, establishes that the applicant has periodically suffered from an Adjustment Disorder since 1987; that it was temporarily aggravated during her employment with the Department of Health but that upon ceasing employment with the Department of Health that temporary aggravation resolved leaving the episodic Adjustment Disorder in the same periodically symptomatic state as it had been prior to her employment with the Department of Health. Accordingly, no entitlement to compensation under s 16 or s 19 arises because relevantly, there is no ‘injury’ giving rise to an incapacity for work or need for medical treatment.