TRACY HOWE and COMCARE
[2009] AATA 116
•20 February 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 116
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0201
GENERAL ADMINISTRATIVE DIVISION ) 2008/4182 Re TRACY HOWE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr Ion Alexander, MemberDate20 February 2009
PlaceSydney
Decision
We affirm the decisions under review.
...................[sgd].......................
Presiding Member
Mrs Josephine Kelly, Senior Member
CATCHWORDS
COMPENSATION – Child Support Agency employee – Claim for anxiety disorder– Liability accepted for adjustment reaction with anxious mood – Determination revoked - Depressive disorder - Whether mental injury arising out of, or in the course of, employment – Applicant submitted cumulative stresses at work contributed to depressive disorder – Applicant’s evidence about nature and effect of work stresses not accepted – Permanent impairment claim conceded - Decisions affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 24, 27
REASONS FOR DECISION
20 February 2009 Mrs Josephine Kelly, Senior Member
Dr Ion Alexander, Member1. Ms Tracy Howe was employed by the Child Support Agency (CSA) from March 2000 to December 2007. Ms Howe claimed compensation for anxiety disorder which occurred on 23 May 2005. The primary decision maker decided to accept liability for adjustment reaction with anxious mood, but accepted the claim from 8 August 2005. That decision was reconsidered at the request of the CSA and on 30 March 2006 the decision was made that Ms Howe's current symptoms were precipitated by an incident on 23 May 2005 which was not work related (the revocation decision). Ms Howe did not seek review of that decision within 60 days.
2. On 11 January 2007 Ms Howe was advised that there had been an overpayment of $36,223.67. She then sought review of the revocation decision. The raising of the debt has understandably caused Ms Howe considerable distress. She said that she was "floored" when it was raised and when a conciliation conference in these proceedings was abandoned on 1 November 2007, she was shattered, and took sick leave from then until she resigned. She is earning less in her current job than when she worked at the CSA.
3. Two proceedings were listed for determination by the Tribunal. However, counsel for Ms Howe, Mr Anforth, requested the Tribunal to affirm the reviewable decision in proceedings 2008/4182, which refused Ms Howe's claim for permanent impairment and non-economic loss under section 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
4. Proceedings 2007/0201, which concern the revocation decision, remained for determination. For the reasons that follow, we affirm that decision because we find that Ms Howe’s undoubted mental illness in May 2005 was not relevantly caused by her employment.
ISSUES
5. There is no dispute that Ms Howe suffered a depressive disorder in May 2005. The issue as formulated by Mr Anforth was:
Did Ms Howe suffer a mental injury arising out of, or in the course of, her employment on 23 May 2005? (s 4 of the Act)
6. Although the revocation decision dealt only with s 14 liability, the Amended Statement of Facts and Contentions filed on behalf of Ms Howe also included claims for compensation for medical expenses (s 16 of the Act) and incapacity (s 19 of the Act).
THE CASE FOR MS HOWE
7. Mr Anforth argued that the combination of the stresses in Ms Howe's personal life before and after beginning work at the CSA, and stressful events at work involving dealing with difficult, mostly male clients, interacted to produce a vulnerable personality which was unable to resist the triggering event of 23 May 2005, an incident involving her daughter. Mr Anforth argued that the stressful incidents at work were a series of cumulative “mental injuries”.
8. Therefore the onset of depressive symptoms in May 2005 arose out of, or in the course of, Ms Howe's employment within the meaning of the Act. Mr Anforth did not argue that the Tribunal should treat the claim as one for an injury suffered in August 2005.
9. In support of his submission Mr Anforth relied in particular on the medical evidence of Dr Canaris and Dr Skinner, psychiatrists, Dr Chaffey, and the evidence of Ms Howe and her colleague at the CSA, Ms Johnson.
CONSIDERATION
The Claim
10. Ms Howe completed a workers' compensation claim form on 4 September 2005, after her attempts to return to work. The claim was for an anxiety disorder sustained on or about 23 May 2005. The part of the claim form filled in by the case manager states that Ms Howe was off work from 26 May 2005 when she notified her employer that she had depression, but Ms Howe did not advise that it was work related until August 2005, when she made unsuccessful attempts to return to work. Ms Howe’s retrospective linking of her depression with her employment is supported by other evidence.
11. In an attachment to the claim, Ms Howe described how she believed her employment had contributed to her condition. She set out her employment history as a Senior Case Officer (SCO) from March 2000 and then temporarily as an Objections Officer in early 2001 until she returned to the SCO role in October 2002. In March 2004 she took up a position in CSA's Legal and Quality Assurance (LQA) team. In essence Ms Howe stated that the SCO and Objection Officer roles involved dealing with angry, abusive clients. She was sworn at regularly, told that she would cause a client to commit suicide, and threatened, with the police being involved on one occasion. She also believed she had to deal with the more difficult cases.
12. Ms Howe acknowledged that she was involved in ongoing acrimonious Family Court matters relating to her former husband and their daughter from 1996. In 2002 she was off work for four or five weeks when she was diagnosed with depression following an incident involving her ex-husband and daughter. She described how after that time she "consistently suggested to" her supervisors that she be given other duties or participate in a rotation option, but neither eventuated. She described feeling anxious, suffering from abdominal pain, irritability at home and constantly worrying about specific cases. She would postpone entering the office and regularly had to "escape" from the office because she did not feel safe. She tried to adopt strategies to cope, such as diverting her telephone to voice mail to allow her to prepare in case it was an irate client. She had two weeks and a sprinkling of days doing other duties, but:
This peaked in November 2003 when I took approximately four weeks leave due to the recurrence of depression.
13. Ms Howe stated that at that time she looked more proactively for another job "because I knew I could no longer cope mentally with the escalated client case". She applied for the LQA position at that time, which she took up in March 2004. In her compensation claim she wrote:
Since working for LQA, I have enjoyed a reprieve from considerable client contact and would say I have been a productive member of the team. I am also part-time until February 2006.
14. Ms Howe also stated that in mid May 2005 “the ongoing issues regarding my daughter reached another flash point” and described how on 23 May 2005 when she entered the office she experienced “anxiety type feelings I experienced as a SCO and objections officer.” She was off work until she tried unsuccessfully to return to work in August.
15. She also stated that her advice from her GP and a clinical psychologist she was seeing through the CSA Employment Assistance Program (EAP) was that:
my experience of working over a prolonged period with 'family pathology' whilst at CSA exacerbates a major depressive condition.
We find that this advice, given after her attempts to return to work and her admission to hospital in August 2005, was the beginning of Ms Howe’s attributing her depressive condition to her employment.
16. Ms Howe described her feelings of anxiety and what happened on each of the occasions she tried to return to work in August 2005. On 8 August she went home after getting to her office and suffering what she described as a panic attack. On 12 and 15 August she stayed for three hours but on both occasions went home and drank an excessive amount of alcohol. On 16 August she forgot to take her children to school, stayed in her pyjamas all day and drank heavily again. On Wednesday 17 August she took her children to school, but with the prospect of work the next day, she drank a bottle of vodka, took 15 sleeping tablets and that night felt compelled to kill herself. She repeatedly crashed her husband's car into the garage and tried to cut her wrists while her husband wrestled the knife from her. The next day Mr Howe took her to her general practitioner. She was admitted into the Pialla Psychiatric unit of Nepean Hospital.
17. In answer to the question What actually injured you or made you ill? Ms Howe wrote:
When this episode of depression originally started in May 2005 my learned feeling of being unsafe in the workplace over an extended period of time exacerbated the onset of the condition. Further, when I attempted to get back to work in August 2005, my depression was instantly reignited and peaked at a level I had never experienced before, resulting in an attempted suicide and being scheduled into a psychiatric facility.
18. Ms Howe's oral evidence was mostly to similar effect. In relation to the LQA position, Ms Howe said that she had minimal client contact, the position being concerned with policy and project work, complex legal queries from staff, training, and a variety of other duties. However, she emphasised that she had taken on a particular client who was seeking compensation for faulty administration and to whom she spoke a few times. This client used a chat room which she and a colleague monitored. She was named on the website.
Contemporaneous Medical Evidence
19. In our view, the key to the correct or preferable decision in this case is to examine the contemporaneous evidence of Ms Howe’s mental health history in the context of her claim to see how it accords with her perception which has arisen since she was given the advice from her then general practitioner and a clinical psychologist in about August 2005, referred to above.
20. The contemporaneous medical evidence from the general practitioners she consulted, and Dr Smith, psychiatrist, shows that Ms Howe has a lengthy history of depression, which began with an incident when she was about 17 years old. Ms Howe acknowledged during oral evidence that she had suffered psychological reaction to that incident and had gone to a few counselling sessions about 9 years later.
21. The clinical notes from the medical practice Ms Howe attended, show that she was on sick leave in October 2002 following an incident that occurred when her daughter was at the home of her father, Ms Howe’s former husband. Ms Howe was prescribed Zoloft on 17 October 2002. On 24 October 2002 Dr Payne noted that Ms Howe was in need of counselling. The next clinical note dated 8 January 2003 stated that Ms Howe was doing well on Zoloft. Family Court proceedings followed, which resulted in March 2003 in Ms Howe's daughter residing with her for the first time since about 1996.
22. Clinical notes dated 11 November 2003 state that Ms Howe had taken Zoloft for 5 months but had stopped, that for the past three months “feeling so sick go to go work, tired weak, sleeping all day, does not want to take pills”, and that she wanted time off work. A clinical note dated 14 November 2003 recorded:
busy with adolescent, 2 & 3 yo kids, does not want to face tax reports, wants more time off, feels guilty to take antidepressants again.
23. Although there is no clinical note referring to a prescription for Zoloft then or thereafter, on 22 October 2004 a clinical note states that Zoloft had ceased.
24. On Monday 23 May 2005, Dr Payne recorded:
feeling down, emotional poor sleep, out of condition. Difficulties at work since commencing p/time in tax office. Hassles with 15 yr old daughter.
Anti-depressant medication was prescribed.
25. In a referral letter to Dr Smith, psychiatrist, dated 30 May 2005, Dr Payne described a history of "likely depression" from age 17 when a particular incident occurred to Ms Howe, with treatment on one occasion for a short period "some 3 years ago".
26. Dr Smith's notes indicate that Ms Howe attended consultations on 1 June and 21 June 2005, but failed to attend an appointment on 19 July 2005. In a report to Dr Payne dated 1 June 2006 (sic), Dr Smith reported that Ms Howe was working three days a week, that she found her work "most stressful and is fearful of making mistakes". He noted that she received little direct support from her superior who was in Queensland. She had applied for a different job and "She clearly recognises the need to shift her place of work". Dr Smith reported difficulties Ms Howe had had with first husband and another member of her family. He diagnosed Major Depressive Episode associated with heightened levels of anxiety.
27. Dr Payne's clinical notes show that Ms Howe was initially happy with Dr Smith's care. On 6 June 2005, Dr Payne changed the anti-depressant medication. She went on extended leave for one month and Ms Howe then saw Dr Chaffey. In a letter to Comcare dated 1 November 2005, Dr Chaffey reported that Ms Howe first consulted him on 26 July 2005 when she was accompanied by Ms Waters from Accent Rehabilitation "who her employer had brought in". Dr Chaffey reported that Ms Howe told him that she did not feel Dr Smith was of any benefit. In the clinical notes for the same consultation, Dr Chaffey noted that Ms Howe had emotionally decompensated at a party at her home. She had felt better “100%” but could not cope with the stress of holding this party. Other evidence shows that this occurred on 19 July 2005. The clinical note also records that Ms Waters was going to investigate whether the EAP might cover a psychologist.
28. The clinical records of Mr Philip Faber, who is a psychologist, show that he first saw Ms Howe on 2 August 2005. Mr Faber recorded that the depression Ms Howe suffered for eight weeks had been precipitated by conflict with her ex-husband regarding visitation rights to their daughter. He also recorded a full depressive episode in 2001 which had been triggered by an incident involving Ms Howe's daughter. There was no reference to Ms Howe's work until a session on 30 August 2005 when a note was made, which we understand reads:
.November, had 'nervous collapse' at work ' reactive to abusive calls, threats of death from aggrieved clients"
. Felt "rattled " – avoidance & anxiety about calls – dealing c (with)
"hard cases", calls for 36/12 eg to 6 cases p.w.
29. This note was made after Ms Howe's unsuccessful attempts to return to work and her admission to a psychiatric hospital.
30. The admission notes at a psychiatric facility, "Pialla" on 18 August 2005 include the following:
Worked with Child Protection Agency has had death threats, recently gone back to work on a rehab programme
Feels down, "empty", thinks that she is a bad wife & mother and useless she can't work effectively.
Had an argument c husband yesterday then tried to harm herself.
…
Evidence of CSA Employees
31. On this background, we now consider the other evidence before the Tribunal. We had evidence from several of Ms Howe's work colleagues and managers, including:
- Ms Collins, who managed Ms Howe from July 2000 to March 2001;
- Mr Cake, who was Ms Howe's temporary manager on a number of occasions from 2001;
- Ms Nunn, who managed Ms Howe from about February 2002 to September 2003;
- Ms Marsh, who was Ms Howe's manager when she was in the LQA role from March 2004 until her resignation in December 2007; and
- Ms Nolan, who initiated, coordinated and monitored Ms Howe's return to work process in 2005 – 2006.
32. Ms Marsh was Ms Howe's manager from when she began the LQA role in March 2004 until she resigned. According to Ms Marsh, Ms Howe's performance was always good – she was hard working and conscientious and worked autonomously. Ms Marsh did not need to interact with her very often. Ms Marsh's evidence was that LQA involved minimal external customer interactions in general and Ms Howe's role was more about internal customers within the CSA network. Ms Howe acknowledged at the hearing that she did not undertake work in the Courts or this Tribunal which would have involved external customer interactions. Ms Marsh could not recall whether prior to her going off work Ms Howe had had to interact with irate or combative couples, as a SCO would.
33. In March 2005 Ms Howe requested and was granted a decrease in hours of work to 30 hours per week over three days, that is, 10 hours per day. Ms Marsh understood that Ms Howe was pleased with the arrangement because it allowed her flexibility with her young family. In May 2005 Ms Howe reported to Ms Marsh that she was unfit for work due to a personal issue with her family, she was experiencing further difficulties with her ex-husband and daughter. Ms Marsh understood that there had been an ongoing dispute about custody since the marital separation some years before. Ms Marsh said that during discussions around the time Ms Howe took three months' leave from May 2005, Ms Howe emphasised that her work in the LQA team had not caused the psychological problems she was experiencing.
34. In her oral evidence, Ms Marsh recalled that some of her team members had emailed her between July and November 2005, voicing their concerns about a disgruntled client who had made threats on the Dads on the Air website. Ms Howe did not email her about that case.
35. Two staff members, Ms Johnson and Ms Cuthbert, provided evidence in support of Ms Howe. Ms Johnson joined the CSA at the same time as Ms Howe in 2000 and can fairly be described as a friend. She gave evidence of the duties of a SCO and of the adverse effects that role had on her. She was aware that Ms Howe had personal problems which had begun before Ms Howe's employment with CSA, however, Ms Johnson stated that she witnessed Ms Howe's health deteriorate from when the first met her until when Ms Howe was unable to work. She described how over time Ms Howe became more distressed about going to work.
36. Ms Cuthbert's evidence related, most relevantly, to the period when Ms Howe was working in LQA. Ms Cuthbert made it a practice to monitor daily the website "Dads on the Air” to see what was being said. Her practice was endorsed by her superiors after she advised them of something alarming that appeared on the website. She said that Ms Howe also looked at the website and that they would sometimes discuss it. She did not state that Ms Howe had been named on the website.
37. Ms Howe's evidence was that she was isolated, and did not receive appropriate training or support in the CSA. She told the Tribunal that she complained about emotional issues mainly to Ms Johnson and Ms Cuthbert. She did not confide in her managers, including Ms Marsh, who was very busy and travelled frequently.
Medical Reports for Current Proceedings
38. The medical reports prepared and relied upon for the purposes of these proceedings do not directly address the question of what Ms Howe's condition was on 23 May 2005. They are all written after her admission to Pialla in August 2005.
39. On 6 September 2005 Dr Chaffey certified Ms Howe unfit to work because of Adjustment Disorder caused at work by chronic exposure to threats of personal harm from clients and the emotional effects of the nature of her work. His detailed report of 1 November 2005 repeats that principal finding. Dr Chaffey wrote a report dated 31 May 2007 which repeated his opinion, however at that time he had not seen Ms Howe for over a year.
40. Dr Synott, psychiatrist, saw Ms Howe 7 December 2005. Ms Howe told Dr Synott that her first significant psychological difficulties commenced in 2002 when personal problems were excacerbated by her work environment at CSA and that, in the SCO role, there was increased client contact. He noted no past psychiatric history but there may be a history on the mother's side of depression in women. Dr Synott diagnosed probable “Major Depressive disorder which is now in partial resolution.”He was not asked for and did not express an opinion about causation.
41. Dr Skinner prepared four reports. In the first report dated 13 July 2007 she took a history including Ms Howe's statements about not coping with her work. In that report, Dr Skinner gave the opinion that Ms Howe had suffered from major depression in 2005 as a result of an accumulation of stressors at home and work over several years, and that work stressors were a factor, among others, contributing to Ms Howe’s condition.
42. Dr Skinner prepared a supplementary report dated 19 November 2007 after receiving the statements of Ms Nolan, Ms Nunn, Ms Marsh, Ms Collins and Mr Cake. Dr Skinner refers to Ms Howe's becoming depressed from "about October 2004" and decompensating in 2005 when she was treated at a psychiatric hospital -
Her account of her employment differs from the perceptions of supervisors and others who worked with her, However, I am not able to rule out the possibility that employment factors might have made some contribution to her psychiatric disorder.
43. In the same report, Dr Skinner said:
Issues of causation are often difficult to determine with respect to any medical condition. It is clear from the documents provided, and from the account given by Ms Howe, that Ms Howe had a number of personal problems… She gives a retrospective history of not coping with her work at the Child Support Agency from about 2002. Determination as to whether employment factors made a material contribution to her depressive illness depends on the accuracy of her retrospective account of her ability to cope at work.
44. In her report of 21 February 2008, Dr Skinner expressed the opinion that it was unlikely that work factors contributed to Ms Howe’s condition. She provided a further report dated 15 April 2008 after receiving Ms Johnson's statement which did not cause her to change her opinion given in February 2008. Dr Skinner's change of opinion was not well justified.
45. Ms Howe told Dr Skinner that she had a problem with the "Dads on the Air" website and "went mental". Ms Howe's evidence at the hearing about this website was less dramatic.
46. During her oral evidence, Dr Skinner said that Ms Howe had not recovered from depression in May 2005 and going back to work in August 2005 was too stressful and led to decompensation. During cross-examination Dr Skinner accepted that a history of sustained stress can impact on vulnerability, or to put it another way, if you are anxious and fearful, you would not cope with other stressors.
47. Dr Canaris provided a report dated 22 June 2007 and gave evidence. Ms Howe told that doctor, apparently in the context of her LQA role, in relation to the workplace atmosphere that "we all had our 'cunning plan' go get out … we all had our Zoloft jokes". She said that people got medical certificates for time off work when the real issue was work related stress. Ms Howe did not repeat this evidence at the hearing. She also told Dr Canaris that around the time she had "numerous client specific crises" and gave an example of her "weird" behaviour at work. She advised that her new job as an LQA involved 20% client contact and that she found herself dealing with more difficult clientele often encountering men whose cases had become politicized; escalation was par for the course. Dr Canaris took a history that she had not had any prior history of depression or other history of psychiatric illness.
48. Dr Canaris’ second report dated 9 September 2008 was provided following receipt of additional material. He commented “clearly your client's situation is complicated" and considered that:
her work with very difficult clients would therefore have very likely lowered her capacity to cope with events at home contributing substantially to her major depressive disorder.
49. Dr Canaris concluded that:
In the presence of a less stressful workplace and better workplace supports, she may well not have become as severely depressed, needed hospitalisation, nor needed as much time off work.
50. During cross-examination, it was put to Dr Canaris that Ms Howe had returned to her pre-injury duties, that she had not seen Dr Chaffey from February 2006 until 20 August 2007, when Dr Chaffey noted that she had become upset because of the request for overpayment. Dr Canaris said that it was a plausible hypothesis that Ms Howe's decompensation was unrelated to work. It is unclear whether Dr Canaris was referring to what happened in May or August 2005.
CONCLUSION
51. The case put by Mr Anforth depends upon our accepting Ms Howe's evidence and her reports to medical practitioners after May 2005 about the effects on her of her duties while working at CSA in the SCO, Objections and LQA roles before May 2005. We accept that Ms Howe may now perceive that her employment caused her the stress and anxiety she has spoken about. That is in the context of her claim having been accepted, revoked and a large debt raised. However, having considered all the evidence before us, we do not accept Ms Howe’s evidence for a number of reasons.
52. First, on the evidence, we find that Ms Howe did not attribute her illness to her work until after her unsuccessful efforts to return to work in August 2005, her admission to "Pialla", and being advised by her doctor and psychologist that her work had caused or contributed to her illness. The claim before us is not for an injury suffered in August 2005.
53. Secondly, her statements to doctors at various times have not been accurate or entirely consistent. For example, she did not give an accurate psychiatric history to either Dr Synnott or Dr Canaris, and she exaggerated the nature of and the effect upon her of her workplace conditions. For example, her comment to Dr Canaris about Zoloft jokes, and the comment to Dr Skinner about going mental about the Dads on the Air website.
54. Thirdly, we do not consider that there is cogent objective contemporaneous evidence of work stress having the effects Ms Howe asserts. For example, Mr Anforth relied on the clinical note of 14 November 2003 that Ms Howe "does not want to face tax reports" as referring to work stresses. We found Ms Howe's evidence unhelpful on this matter. During cross-examination, she said that this related to tax returns that she had to fill in relating to her previous legal studies, a personal matter, however, during re-examination after a break and we infer after discussion with her counsel, she said that this referred to matters at work.
55. Fourthly, we find that Ms Howe did not exhibit or complain of work stresses or difficulties to any of her managers before her attempt to return to work in August 2005, although some of her managers were aware of her having personal problems.
56. Fifthly, Ms Johnson's evidence in support of Ms Howe is based on recollections given more than two years after, and consequently influenced by the events of August 2005. We do not find Ms Johnson’s evidence persuasive.
57. Sixthly, we find Ms Howe's evidence of the extent of stresses in her positions as a SCO, in Objections, and particularly in the LQA role, exaggerated. She referred to a particular case in the latter role. We prefer the evidence of Ms Marsh that the case she referred to occurred during the period that Ms Howe was off work, and there was no material available linking Ms Howe to that case. We find that the LQA role involved little client contact and that Ms Howe coped well with that work. That is the effect of her statement in support of her workers compensation claim. Further, she returned to that work in April 2006 and carried out the same duties without apparent difficulty until the debt was raised. Finally, Ms Cuthbert's evidence did not support Ms Howe's evidence that she had been named on the Dads on the Air website.
58. As of 23 May 2005, we do not consider that Ms Howe's work had resulted in the stresses she asserted and therefore the case must fail. We consider that the reviewable decision made on 30 March 2006 that Ms Howe's current symptoms were precipitated by an incident on 23 May 2005 which was not work related is correct. It is therefore unnecessary to consider the legal questions raised by Mr Anforth's submission.
59. This is a most unfortunate case. If the original decision-maker for Comcare had not changed the date of Ms Howe's injury to 8 August 2005, the debt may not have been raised. From the evidence, Ms Howe is probably aware of the Scheme for Compensation for Detriment caused by Defective Administration, however we mention it in case she has overlooked that possible avenue of redress.
DECISION
60. For the above reasons, we affirm the decisions under review.
I certify that the preceding 60 paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr Ion Alexander, Member.
Signed: …….[sgd]………..
Steven Mulipola, Associate
Dates of hearing: 17, 18 & 19 September 2008
Date of decision: 20 February 2009
Counsel for the Applicant: Mr A Anforth
Solicitors for the Applicant: Slater & Gordon
Counsel for the Respondent: Mr M Gollan
Solicitors for the Respondent: Sparke Helmore
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