Tracey Rand and Comcare
[2014] AATA 672
•12 September 2014
[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, MemberDate 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 536Casarotto 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
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’.
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]
[1] Rand v Comcare [2014] FCA 584.
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’.
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.
At that hearing, the 2011 claim relating to liability for ‘aggravation of post-traumatic stress disorder’ was abandoned. Counsel for Comcare then pointed out that if the claim was no longer a new claim for PTSD, and had become in the alternative, a claim for compensation for medical treatment (section 16) and for incapacity payments (section 19) for an aggravation of Ms Rand’s accepted claim of an adjustment disorder with anxious mood, the claim under section 14 of the Act (the section concerning initial liability) was unnecessary. Instead, a claim should have been made to Comcare under section 16 and 19 of the Act.
The Federal Court order remitting the matter to the Tribunal reflects an acceptance that it is this alternative option which is being pursued. In responding to that order, the Tribunal must be satisfied that Ms Rand is entitled to compensation for medical treatment ‘in relation to the injury’ and for incapacity for work ‘as a result of an injury’.
The Tribunal has assumed that the date 15 March 2005 in the Federal Court order represents the period immediately following Ms Rand taking leave for five months from November 2004 until mid-March 2005, that is, a period after she had joined the Authority. It is also possibly the last occasion on which compensation for ‘adjustment reaction’ was accepted.[2]
[2] Respondent’s Written Submissions 5 September 2013, 8.
The Tribunal’s findings that on 13 August 2013, the date of its initial decision, ‘Ms Rand has an adjustment disorder with mixed anxiety with depressed mood’[3] is solely a finding that she has an accepted condition on that date. There has been no evidence to indicate that liability under s 14 for Ms Rand’s condition has been ceased and the Tribunal has not so found.
[3] Re Rand and Comcare [2013] AATA 580 at [88].
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) sections 4(1), 5A, 5B, 16, and 19.
Section 16 provides that Comcare is liable to pay for medical treatment ‘obtained in relation to the injury’ that it was reasonable for the employee to obtain. Section 19 provides for Comcare to pay compensation for incapacity for work which arose ‘as a result of an injury’.
Issues
The sole issue remitted by the Federal Court was whether Ms Rand’s adjustment disorder with mixed anxiety and depressed mood, for which liability was accepted in 2002 due to her employment with the Department of Health and Ageing, was an effective and operative cause of incapacity for work and need for treatment from 15 March 2005 onwards. The order assumes liability for her accepted condition continued up to that date.
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.
Ms Rand has submitted that the expression ‘effective and operative cause’ in the Federal Court’s order is a compendious expression which
… describes the link between the compensable condition and incapacity and treatment, although that does not indicate that the magnitude of the connection is any greater than is signified by phrases ‘in relation to’ (as to treatment) and ‘as a result of ‘ (as to incapacity).[6]
[6] Applicant’s Written Submissions, 19 August 2014 at [24].
The Tribunal has accepted that the expression ‘an effective and operative cause of incapacity for work and need for treatment’ has been used in this sense. Nonetheless in deciding whether the accepted condition ‘remained an effective and operative cause of need for treatment or incapacity from 15 March 2005’, it must also be established that the compensation is for an ‘injury’ as defined in the Act.
In each of sections 16 and 19, compensation is payable only if there is a connection between incapacity or need for medical treatment and an accepted injury as defined in the Act. The continuation of an accepted ‘injury’ is a precondition to obtaining compensation under other compensation-providing provisions in the Act such as section 16 and 19. The consequence is that meeting the criteria for these provisions entails a decision by the Tribunal in the remitted matter as to whether the accepted condition continued after 15 March 2005.
Tests to be applied
The nature of Ms Rand’s claimed condition is that it is characterised as a ‘disease’ for the purposes of the Act.[7] A disease encompasses a psychiatric condition such as an adjustment disorder. However, to be categorised as a ‘disease’, the condition must meet two tests: the condition must be diagnosed as a psychiatric disorder in accordance with medical criteria, as for instance, as listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders; and the condition must be of sufficient severity to be described medically as ‘outside the boundaries of normal mental functioning and behaviour’.[8]
[7] Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5B – definitions of ‘disease’.
[8] Comcare v Mooi (1996) 69 FCR 439 at 444.
In addition, to be compensable under the Act, the ‘disease’ must meet the legal test for an ‘injury’ under the Act.[9] In the periods involved in this matter, there have been two such standards: in the version of the Act immediately preceding the current version, a ‘disease’ would only be an ‘injury’ if it ‘was contributed to in a material degree by the employee’s employment’.[10] From 13 April 2007, the test was tightened. Under the current Act to be compensable as an ‘injury’ the ‘disease’ must have been ‘contributed to, to a significant degree, by the employee’s employment’.[11]
[9] Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A.
[10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – as in force prior to 13 April 2007.
[11] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), 5B(1).
As the Federal Court requires the Tribunal to consider the issues from 15 March 2005 onwards, the period straddles both versions of the Act and the Tribunal must consider each of the evaluative thresholds for ‘injury’.[12] That is a precondition to the decision as to whether Ms Rand is entitled to compensation for medical treatment or incapacity in relation to/in respect of the injury (sections 16 and 19 of the Act).
Medical test
[12] Comcare v Sahu-Kahn (2007) 156 FCR 536 at [13] and [15].
The standard source of diagnostic and other information relating to psychiatric conditions such as an ‘adjustment disorder’ is the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. The edition current in 2005 was the fourth edition (DSM - IV – TR, 2000).
The Tribunal in its initial decision described the nature of an adjustment disorder in the terms of DSM – IV as follows:
The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms. The symptoms must develop within 3 months after the onset of the stressor(s) (Criterion A)...By definition, an Adjustment Disorder must resolve within 6 months of the termination of the stressor or its consequences (Criterion E). However, the symptoms may persist for a prolonged period (i.e. longer than 6 months) if they occur in response to a chronic stressor (e.g. a chronic, disabling general medical condition) or to a stressor that has enduring consequences (e.g. to financial and emotional difficulties resulting from a divorce).[13]
[13] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000) (DSM – IV – TR, 2000) 679 (DSM 4).
The nature of an adjustment disorder is that it is short-term, subject only to the stressor continuing. So, in principle, Ms Rand’s work-related condition, accepted in 2002 with a date of onset of 2000, was likely to be of quite limited duration, unless the stressor which led to the condition remained operative. In that event, the adjustment disorder is regarded as chronic.
In its initial decision the Tribunal found, on the medical evidence that:
Ms Rand has a recurring and chronic psychiatric condition which can be described as an adjustment disorder with mixed anxiety and depressed mood, symptoms of which have been present intermittently since at least 1987. According to DSM 4 ‘This subtype should be used when the predominant manifestation is a combination of depression and anxiety’.[14]
[14] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000) (DSM – IV – TR, 2000) 680.
The DSM – IV definitions require examination of two relevant questions:
·Have the stressors which led to Ms Rand’s accepted condition in 2000 continued beyond 15 March 2005?
·If not, is it the case, that Ms Rand’s condition after 15 March 2005 has been episodic only in nature? In that event, Ms Rand’s condition could only be compensable if she established that she was suffering an adjustment disorder condition due to a new stressor.
The first of these questions raises a practical issue. Does the condition which Ms Rand developed due to stressors while employed by the agency continue after 15 March 2005 such that Ms Rand continues to be entitled to compensation for incapacity and for medical treatment.
Did stressors experienced by Ms Rand while at the agency continue after mid-March 2005?
Ms Rand’s principal submission is that the stressors continued. As counsel for Ms Rand put it, during her time at the Authority, incidents occurred which reactivated her underlying symptomatology or her predisposition towards experiencing an adjustment disorder with anxiety and depressed mood. That requires a finding by the Tribunal that the stressors she experienced while at the agency continued after 15 March 2005.
Bullying or harassment
Ms Rand identified the stressors as bullying and harassment in the workplace. The findings of the Tribunal in its initial decision were that ‘Ms Rand’s employment by the Authority did not contribute to a material/significant degree to Ms Rand’s condition’. By implication, the Tribunal found that, at least until February 2004 when she joined the Authority, the stressors which led to Ms Rand’s accepted condition continued. In its current decision the Tribunal is more precise in its findings as to timing.
The Tribunal’s initial findings as to the claimed stressors, based on Ms Rand’s evidence, was that she had not been bullied at the Authority. At the initial hearing Ms Rand asserted this to be the case, and her views were also recorded in Dr Phillips’s report of 8 May 2012.
As Ms Rand said the difference between her treatment at the agency and at the Authority illustrated the fact that she had not been bullied:
The things that happened at the NBA were just once in a while, just occasionally. They weren’t consistent, every day or every week. They were just things that, you know, come up when people work together, in my point of view. Just ordinary differences between people. And I think that my reactions were completely over the top. … I don’t regard them as bullying.[15]
[15] Re Rand and Comcare [2013] AATA 580, Transcript, Day 1, 76.
That evidence, however, was not consistent with her earlier reports to Dr Tym. In his report of 13 April 2010 Dr Tym said that, while at the Authority, Ms Rand had told him that she had been bullied by officers in the Authority. His clinical notes have references to complaints about individuals in December 2006, in November 2007 and in September 2009, and to a demeaning job given her by her supervisor, an Executive Level 1 officer (EL1), in June 2010.
Dr Tym’s evidence, based on his clinical notes for the periods covered by Ms Rand’s employment by the agency and the Authority, and the evidence from clinical notes from the general practice Ms Rand attends, was summarised by the Tribunal in its initial decision as follows:
[Dr Tym’s] record involves 15 complaints in 11 years, roughly one a year. The Tribunal notes that the greatest intensity of complaints occurred in 2000 and 2002, and led to her adjustment disorder being accepted by Comcare at that time. Only one reference to work matters appears in Dr Tym’s notes in each of 2003 and 2004. There are no further complaints until December 2006. Thereafter there are some three to four complaints, about one every twelve months, until she stops work in June 2010. This record is significant since it appears that it is Dr Tym to whom she has mostly confided her workplace concerns.
The clinical notes from her doctors are almost bereft of complaints about Ms Rand’s workplaces. The Gungahlin Medical Practice notes for 2007 to 2010 do contain two entries referring to complaints about the workplace in 2007, two more in 2009, and then a comment on 6 January 2010 that ‘work issues resolved, person who distressed her at work resigned’, a total of four negative comments over four years.[16]
[16] Re Rand and Comcare [2013] AATA 580 at [60], [61].
These findings support Ms Rand’s claim that she was not bullied at the Authority. That conclusion is supported by the two psychiatrists who provided reports for the hearing. Those reports, of Dr Phillips and Dr Champion, refer generally to Ms Rand being sensitive to others being bullied while at the Authority. Dr Champion does record her telling him of her harassment by two colleagues, and that she was mistreated by a supervisor in 2010. However, there is no reference in their reports to Ms Rand being the subject of bullying. In addition Dr Champion said in his report of 16 February 2012 that in her five months away from work in 2004 to early 2005 Ms Rand’s symptoms ‘reduced significantly’.
The Tribunal also notes that in January 2010, the clinical notes of Dr Tym record her saying of her earlier complaint concerning another colleague that she ‘now laughs at him – he no longer worries her’. These reactions may also reflect the benefit to Ms Rand of her sessions with a mentor appointed by the Authority in late 2007 to early 2008. The mentor reported that, following these sessions, Ms Rand had said she had acquired tools to handle situations at work and to restrain her anger. Again, this evidence supports the absence of bullying of Ms Rand by personnel at the Authority.
The evidence at the initial hearing, as summarised by counsel for Ms Rand, is also supportive of this finding. As counsel said:
… nobody bullied her at the National Blood Authority, and she described very good relationships with some of her supervisors there. But there were things that she saw, in particular the way other people were being treated, and the way some people behaved, which created recollections of how she had been treated at the Department of Health and Ageing.
Dr Phillips’s response to that statement was that
… she was hyper-sensitive to her environment. And she probably overreacted in the National Blood Authority … to the problems faced by others, and maybe sensitivities of her own. But I don’t think … that the National Blood Authority workplace has made more than a relatively minor contribution to her problems overall.
Dr Champion’s evidence on that issue was:
… it seems to be claimed that [Ms Rand’s complaints about incidents at the Authority] were due to memories of what happened previously. I don’t think that that necessarily follows on the basis of that repetitive pattern that I’ve pointed out, of problems before the [Australian National Parks & Wildlife Service], problems at the Department of Health and Ageing, and problems after. It’s a recurrent pattern which is likely to repeat; the manner in which Ms Rand goes about relating to her workplace.
As the Tribunal concluded in its initial decision:
The applicant’s predisposition to depressive disorders has played a significant role in her life, including her employment, but her symptoms have been periodic and have shown a marked diminution while at the Authority.[17]
[17] Re Rand and Comcare [2013] AATA 580 at [72].
So there is nothing in this overall history of Ms Rand’s interactions at the Authority to indicate that the stressors Ms Rand had experienced in the agency continued while at the Authority, and certainly not from mid-March 2005. As the Tribunal concluded in its initial decision:
In summary, after 2002, Ms Rand’s complaints about events and personalities in her workplace diminished. Although there was a level of dissatisfaction by management with Ms Rand’s output, and there is an indication from her that this was a trigger to her leaving her employment, there is no indication that the tasks were excessively demanding or beyond the competence of someone at her level. The Tribunal has been unable to identify from the evidence any particular event while at the Authority which caused Ms Rand to leave work.[18]
[18] Re Rand and Comcare [2013] AATA 580 at [66].
The Tribunal concludes, accordingly, that after 2002, Ms Rand’s complaints about events and personalities in her workplace diminished and that the incidents referred to at the Authority were of considerably less moment than the reports of bullying while at the agency. As Ms Rand put it at the hearing, these incidents were ‘just ordinary differences between people’.
Such incidents as occurred are twelve or more months apart, were not regarded by Ms Rand as of any moment, and despite them, Ms Rand remained working at the Authority until June 2010. The incidents to which reference was made by Ms Rand and her reactions to them also generally reflected her response to the treatment of others, rather than herself, and the incidents themselves were of minimal seriousness. Ms Rand’s evidence was also that when she first joined the Authority in February 2004, ‘things were quite good’. That is reflected in the fact that the first recorded complaint did not arise until nearly two years after February 2004.
In summary, the evidence is that Ms Rand was not bullied at the Authority. In addition, there is no concrete evidence that she was harassed. There is evidence of some stressful interactions with colleagues, as reflected in Dr Tym’s notes, but no claim of harassment was made, and such information as was available does not indicate that the interactions were of particular concern to Ms Rand. The Tribunal finds accordingly that the history of complaints does not suggest that the stressors she experienced at the agency continued after mid-March 2005.
Need for treatment
Nor is the information concerning her treatment with anti-depressant medication suggestive of a continuous pattern of bullying or harassment of Ms Rand. The record of prescription of anti-depressants is incomplete. However, Dr Tym’s clinical notes indicated that in 2005 he had prescribed such medication in March, June and September, and again in June 2006, and in April 2007. At the same time, he said in his report of 6 April 2005 that Ms Rand was off all medication other than for ADHD, so there is an inconsistency in his notes relating to the prescription in March 2005.
Dr Tim Watson, her general practitioner, said she was on an anti-depressant in September 2006, but there is no further record of him recording anti-depressants in the period to 2008. Dr Phillips view was that ‘the use of anti-depressants was relatively short’.
This evidence indicates that there are significant gaps between prescriptions for antidepressant medication: nine months between September 2005 and June 2006; and another seven months to April 2007. Thereafter, there is no evidence from the clinical notes to the end of 2008, of Ms Rand being prescribed an antidepressant.
Ms Rand also said in evidence that although prescribed antidepressant medication she would on occasion not take it, either because she felt better or because of the side effects of the medication.[19] Ms Rand conceded at the hearing that she tended to go back on her medication when she found herself getting angry. However, as she said in evidence, she was more off her medication than on it, she estimated in the percentage of 55 to 45. That means the history of prescriptions is an overstatement of the periods she was needing medication.
[19] Transcript of Proceedings, Monday 3 June 2013, 58.
This intermittent prescription of medication supports the periodic nature of her adjustment disorder and that she had periods when she had recovered. The episodic feature of Ms Rand’s illness is also supported by the medical reports. These indicate Ms Rand suffered periods of depression and anxiety from about 1987 when she was in her 20s, but that these episodes too were intermittent.
In his report of 30 January 2012, Dr Tym said that ‘the conditions from which Ms Rand suffered as a result of certain incidents occurring whilst she was employed at the Department of Health and Ageing (DOHA) fluctuated such that they became significantly more symptomatic from time to time’.
Dr Champion referred to ‘an overall pattern … that led to regular adjustment disorders’, that Ms Rand had had ‘episodes of anxiety/depressive symptoms’ since 1991 which ‘tend to be transient’, and that Ms Rand was ‘prone to recurrent bouts of depression’.
Only Dr Phillips noted that Ms Rand ‘believes that she remained ill at the time when she began to work [at the authority]’. As he said ‘she has an ongoing perception that her workplace will remain aversive, and that she will be further harassed and intimidated in that setting. This is the ongoing stressor which will explain why her symptoms persist’.
The Tribunal prefers the views of Dr Tym and Dr Champion to those of Dr Phillips. Dr Champion’s opinions were carefully reasoned and took into account the contemporaneous reports from Dr Tym and Dr Rohan. Dr Tym’s views were preferred where his clinical notes refer to reported information from Ms Rand as to her mood state, and because of his lengthy treatment of her.
Dr Phillips’s views, as he acknowledges, depends on his acceptance of the history provided to him and he did not attempt to base his evaluation more squarely on his clinical judgment, nor did it take into account all the available information. For example, as he agreed in evidence, he preferred to accept the account he obtained from Ms Rand in 2012 where it was in conflict with the contemporaneous notes of the two psychiatrists who had seen her, an approach for which he gave no explanation and which was not helpful to the Tribunal. Both Dr Phillips and Dr Champion only saw Ms Rand on one occasion, a common situation with medico-legal consultants, so their reports, on this basis, have equal validity.
In short, the periods when Ms Rand was prescribed an antidepressant, were episodic, relatively short, and diminished from September 2005. In addition, Ms Rand’s own evidence was that she frequently did not take the medication when prescribed and her reliance on such medication was probably ‘more off than on’. So on balance the evidence from her prescribed treatment does not support a continuation of stressors on Ms Rand.
In conclusion the evidence of continuing complaints of bullying and harassment, the significant reduction in her symptoms and of her need for medication, and the intermittent occasions on which medication was prescribed for her condition do not suggest that the stressors to which Ms Rand was subject continued after 15 March 2005, or that she continued to suffer from an adjustment disorder.
Legal tests
Nevertheless, the Tribunal is bound to consider whether Ms Rand’s accepted condition from 15 March 2005 remained the effective and operative cause of her need for treatment or entitlement to incapacity payments. In order to meet that requirement, the Tribunal must also establish that Ms Rand’s condition from that time remained an ‘injury’. That requires the Tribunal to establish that it was Ms Rand’s employment which contributed either in a material degree or, after April 2007, to a significant degree, to her condition.
The evaluative threshold posed by ‘in a material degree’ was described by the courts as ‘substantially, considerably’ and more than a ‘de minimis contribution or one which did not influence the course of events’.[20] For the period 15 March 2005 to 13 April 2007 this is the test to be applied. From 13 April 2007, the test is that the contribution by employment was ‘to a significant degree’. Although the test for ‘in a significant degree’ does not appear at first sight to be qualitatively different from the earlier test as interpreted by the courts, it is apparent from the substitution of ‘significant’ for ‘material’ that the intention was that the bar be raised.
Causative ‘in a material degree’
[20] Comcare v Sahu-Khan (2007) 156 FCR 536 at [15] and [14] respectively per Finn J, relying on comments by French J and Stone J in Comcare v Canute (2005) 148 FCR 232 at [63] – [64].
In the period to 13 April 2007, although the evidence discussed earlier indicates that incidents in Ms Rand’s employment had a lesser impact than those she experienced at the agency, it is accepted that there was an impact, given Ms Rand’s evidence that her complaints related to the reactivation of her memories of the experiences at the agency. The issue is whether the incidents meet the relevant threshold test or bar imposed by the Act.
According to Dr Tym’s notes, there are no references after February 2005 to the two persons in the agency whom she claimed had bullied and harassed her. As for complaints about persons at the Authority, Dr Tym’s clinical notes show only one such complaint was made prior to 13 April 2007, namely, in December 2006, some two and half years after she commenced work at the Authority and some twenty months from March 2005. The Tribunal also notes Ms Rand’s evidence that when she first started at the Authority things were ‘quite good’. There were no complaints about people at the Authority in Dr Watson’s notes prior to 13 April 2007.[21]
[21] Dr Watson’s clinical notes refer only to two such complaints made after 13 April 2007.
At the same time, there were other events impacting on Ms Rand during this period. These may be summarised as follows:
·Dr Tym’s clinical notes indicate that in June 2004 Ms Rand was concerned about her anger towards her mother. Her relationship with her mother had deteriorated during the five or so months Ms Rand was on leave between November 2004 and March 2005, particularly following Ms Rand’s assault of her mother in December 2004. As a result Ms Rand has been alienated from her mother since then. There was evidence too that Ms Rand’s mother’s health had been deteriorating since 2001 which meant she was dependent on Ms Rand to an increased extent and that this put pressure on Ms Rand when she was also in full-time employment.
·Ms Rand’s relationship with her sister had been affected by an assault on her sister in early 2005. There is also evidence in Dr Tym’s clinical notes in 2004 that Ms Rand had concerns about her relationship with her partner. So there was evidence in 2004-2005 of inter-familial pressures.
·Ms Rand had two motor vehicle accidents, the second being in 2005. This had led to Ms Rand having ‘more difficulties with headaches, neck pain and back pain’. A report, dated 25 October 2005, concluded that Ms Rand had chronic pain syndrome related to soft tissue injuries sustained in the accident.
·Ms Rand had suffered back pain since 1986 and had a chronic lower back problem. She had also suffered migraines since the 1990s. The effect of the increase in pain from these non-employment related conditions, including the motor vehicle accident in 2005, led to her needing injections from Dr Watson from 2007.
·According to the history taken by Dr Phillips, Ms Rand was also obese during this period.
·Dr Champion referred to her suffering panic attacks from 2006.
·Ms Rand, by her own admission, had concerns about her being prone to anger. That had led her, during her time at the Authority, to become angry about the treatment generally of others. What disturbed her was that on those few occasions, as she said she regarded her own reaction as being ‘completely over the top’.
·Ms Rand’s temper and tendency to overreact was described by Dr Champion and Dr Phillip as due to her having obsessive personality traits. As a consequence she became frustrated when she or others were not treated, in her eyes, appropriately. On occasion, her anger had led to her becoming physically violent, such as when she badly damaged a toilet door at work when she was at the agency, or her assaults on her mother and sister in late 2004 and early 2005 respectively.
When evaluating whether it was employment or matters outside employment that, in the years from mid-March 2005 to 13 April 2007, had caused Ms Rand’s psychiatric conditions, the Tribunal gives more weight to the non-employment related events over those which arose in the Authority. The Tribunal is not satisfied when assessing the evidence of her complaints made while at the Authority or the history of her periodic needs for anti-depressant medication during this period, that Ms Rand’s condition reached the evaluative threshold of ‘in a material degree’. Accordingly the Tribunal is not satisfied that Ms Rand was suffering an ‘injury’ from mid-March 2005 onwards until 13 April 2007.
Post 13 April 2007
It follows logically that if the stressors to which Ms Rand was subject at the agency did not continue beyond mid-March 2005, and the evidence shows that what stresses Ms Rand was experiencing at the Authority were diminishing, they were even less likely to be operative after 13 April 2007. Accordingly there is no need to consider whether Ms Rand was suffering an ‘injury’ from 13 April 2007.
Did Ms Rand suffer from an aggravation of her adjustment disorder condition from 15 March 2005?
The Tribunal notes that an ‘aggravation’ includes an ‘acceleration or recurrence’ of the condition.[22] For an ‘aggravation’ to arise the condition must become more severe and for an ‘acceleration’ to occur its progression – usually of a progressive disease - must be hastened.[23] A ‘recurrence’ of a condition is present when a condition experienced in the past occurs again. In Ms Rand’s case, there would be a recurrence if she developed an adjustment disorder after 15 March 2005 as a result of some identifiable stressor.
[22] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘aggravation’.
[23] Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 405.
The Tribunal notes the significance of the following requirement in DSM-IV that ‘The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms’. [24] (emphasis added) In other words, the evidence must establish a specific stressor which relates to the onset of a new episode of adjustment disorder for the diagnosis to be fulfilled. An ‘aggravation’ is considered to be a new ‘injury’ provided it meets the evaluative thresholds referred to earlier.
[24] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000) (DSM – IV – TR, 2000) 679.
As mentioned earlier the Tribunal’s initial findings were that Ms Rand did not suffer an aggravation of her condition while employed by the Authority. The Tribunal also found that there was no recurrence of Ms Rand’s condition which had been contributed to, to a material degree/significant extent, by her employment by the Authority. Nonetheless in deciding whether the condition remained an effective and operative cause of incapacity for work or need for treatment the Tribunal has been required to reconsider its initial decision, including the issue as to whether there was an aggravation, bearing in mind the date of 15 March 2005, and whether the liability of the agency continued as from that date.
Despite Dr Phillips referring to Ms Rand’s stressors continuing, he also said she developed ‘a new, pervasive and chronic adjustment disorder with depressed mood’, and that although her condition may have continued, it was ‘exacerbated/aggravated by incidents within the NBA workplace’. In support of his contention that she was suffering a new condition, he said although her previous symptoms persisted she had a number of new ones:
She was excessively moody, she became increasingly angry (with difficulties controlling emotion), she was hypersensitive about bullying in any form, she became sensitised to the bullying of others and she made complaints on behalf of fellow workers, she complained more generally to management about a number of matters, she had increasing difficulties with memory, and she found herself unable to plan.
In summary, his view appears to be that Ms Rand had an underlying predisposition to experiencing episodes of adjustment disorder, that this predisposition had been triggered by bullying in the agency, but was later exacerbated or aggravated by events at the Authority.
Dr Tym noted that during her employment with the Authority Ms Rand ‘developed a fresh episode of Post-Traumatic Stress Disorder (PTSD)’, which led to an increase in the symptomatology of, among others, her ‘Major Depressive Disorder’. He did not specifically address the issue of an aggravation of an adjustment disorder.
Dr Champion’s view in February 2012 was that her condition was in remission although, looking at her entire history, he said ‘there’s an overall pattern ... that led to regular adjustment disorders’. He agreed with Dr Tym’s report in 2010 that Ms Rand had ‘been struggling over the last two decades with depressive disorders and anxiety disorder’. His opinion was that ‘the problems in the workplace had not caused the disorder (unstable personality function) but had been manifestations of the disorder’.
As he said ‘she is likely to have suffered a constitutionally based syndrome of depression/anxiety on a chronic basis over many years with the claimed work related problems merely being passing phases of her unstable personality function’. He also noted that Ms Rand’s ‘episodes of anxiety/depressive symptoms tend to be transient’, and that Ms Rand was ‘prone to recurrent bouts of depression’.
The Tribunal prefers the views of Dr Champion and of Dr Tym to those of Dr Phillips for the reasons referred to earlier.
The Tribunal, therefore, accepts that Ms Rand suffered periods of adjustment disorder for over 20 years, pre-dating and during her employment with the Australian Public Service, but the predominant view of the medical experts was that these were generally transient and episodic.
Turning to the specific period involved in this matter, that is, whether Ms Rand’s accepted condition of adjustment disorder, provoked by the events in the agency, had resolved by 15 March 2005, the evidence is as follows.
Dr Tym’s clinical notes record Ms Rand’s delight in January and February 2004 that she was free of her later supervisor from the agency, and the Tribunal notes Dr Tym’s record that in March 2005 she was off all medication other than for ADHD. Ms Rand had also just returned from about five months leave in mid-March 2005.
Ms Rand denied that she had been bullied or harassed at the Authority. As she said the incidents to which reference has been made earlier were ‘just things that, you know, come up when people work together, in my point of view. Just ordinary differences between people’. Ms Rand also said in evidence when she ‘first started at the National Blood Authority, things were quite good’. That is consistent with the other evidence in this paragraph. This evidence is sufficient to satisfy the Tribunal that at that time Ms Rand had recovered from her previous episode of adjustment disorder.
In order for the Tribunal to find an aggravation of her adjustment disorder, it is an essential criterion that there be an identifiable stressor. The Tribunal is not able to be satisfied that any employment related stressor has been identified. The four incidents discussed earlier generally related to others and Ms Rand’s reaction was vicarious. In other words, the employment actions did not impact directly on her. The one incident affecting Ms Rand to which there is reference in Dr Tym’s clinical notes is on 19 October 2009. A colleague had left, and he was nominated in one of the incidents of which she complained.
The note concerning this incident records Ms Rand telling Dr Tym that she had three weeks leave because of this person. However, Dr Tym did not prescribe any medication on this occasion. So it appears to have been of insufficient significance for him to consider she needed treatment. In addition, at that time he had not prescribed an anti-depressant for her since April 2007. So the Tribunal is not satisfied that this event was a stressor which led to the development of an adjustment disorder.
Although there is reference in Dr Tym’s notes to her experiencing flashbacks to events at the agency, these reactions appear to be focused on symptoms of a post-traumatic stress disorder, not on her depressive or anxiety symptoms, nor adjustment disorder.
So there is insufficient evidence that Ms Rand suffered an adjustment reaction during her period at the Authority. Dr Phillips’s diagnosis that she was suffering from that disorder when he saw her in 2012 is dependent, as he says, on her history. It was not based on his contemporaneous observations or clinical judgment. His diagnosis is not supported by Dr Champion, nor by Dr Tym’s clinical notes.
Ms Rand did have lengthy periods of leave, particularly in the early part of her time at the Authority. The first five months of such leave until March 2005 pre-dates the period under consideration. A second period of leave commencing on 24 February 2010 was for a major surgery for medical condition unrelated to her employment. So this second period was not for her psychiatric condition.
Other evidence supports these findings. The mentoring Ms Rand received in late 2007 to early 2008 indicated she had heeded advice about how better to handle her anger, and the record of leave taken between July 2009 and June 2010 when she ceased work was that she only took 12 days’ leave, not taking into account the period for the major surgery. That suggests she was more comfortable in the Authority environment at that time.
In any event, as the discussion under the previous heading illustrates, Ms Rand maintains she was not bullied at the Authority, her need for anti-depressants diminished markedly, and factors outside her workplace, were the more likely to be implicated in her tendency to suffer bouts of depression and anxiety. These included long-standing problems such as family stress, a quite traumatic break-up with her first husband in 1987, difficulties with her mother, migraines, back pain, neck pain (there is a reference to her having injections in her neck to relieve pain on 13 November 2007), and a belief she should have been promoted earlier than occurred.
Other external factors included difficulty with her nephew who had been living with her but whom she asked to leave in 2004; her mother’s refusal since Christmas 2004 to have contact with her; her assault of her sister early in 2005; a motor vehicle accident in 2005; her need for a different, more interesting workplace, referred to in Dr Tym’s notes on 7 September 2005; financial pressures relating to the property in rural NSW where she lived; her relationship with her partner, to which reference is made in a report to Dr Tym on 19 February 2003, and by Dr Phillips in his report of 8 May 2012; her partner’s being diagnosed in 2010 with a degenerative disease and being forced to retire; her disappointment about the implications from his condition and retirement for a proposed specialty yarn business he and Ms Rand were to develop; and her own feelings that she was not able to measure up to the standards required of her in the workplace and lacked the energy to try to improve her performance. As she said at the hearing ‘I don’t think they were happy with me. And the problem was that I was so ill that I didn’t feel that I could ever achieve – you know, pick up my performance to achieve what was required’.
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.
I certify that the preceding 99 (ninety- nine) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member and Dr B. Hughson, Member. .....................[sgd]...................................................
Associate: S. Wardell
12 September 2014
Date of hearing on the papers 8 September 2014 Counsel for the Applicant Leo Grey Advocate for the Applicant Nigel Gabbedy Solicitors for the Applicant Pappas J - Attorney Counsel for the Respondent Ben Dube Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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