Vallance and Comcare (Compensation)

[2019] AATA 2959

Vallance and Comcare (Compensation) [2019] AATA 2959 (27 August 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2017/0502
General Division  )

Re: Michael Vallance
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  The Hon. John Pascoe AC CVO, Deputy President

DATE OF CORRIGENDUM:            4 September 2019

PLACE:            Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that:

1. 1.        the words “as at 10 October 2019” in paragraph 27 of the decision are replaced with “as at 10 October 2016”.

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

The Hon. John Pascoe AC CVO, Deputy President

Division:GENERAL DIVISION

File Number:           2017/0502

Re:Michael Vallance

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:The Hon. John Pascoe AC CVO, Deputy President


Date:27 August 2019

Place:Sydney

1. The reviewable decision of the Respondent dated 1 December 2016 which denied liability for compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 is affirmed.

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

The Hon. John Pascoe AC CVO, Deputy President

Catchwords

1.       COMPENSATION – workers compensation for injuries – generalised anxiety disorder – where liability was initially accepted – where respondent later determined that the applicant no longer suffered from the condition – whether applicant continued to suffer from an injury – decision affirmed

Legislation

1.       Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5B, 14

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

27 August 2019

1. 1. The Applicant seeks a review by the Tribunal of a reviewable decision dated 1 December 2016 which affirmed an earlier determination dated 10 October 2016 that found that the Applicant had, as at that date, no entitlement to medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) nor any entitlement to incapacity payments under section 19 of the Act for his generalised anxiety disorder

   Background

2. 2.        A brief statement of the facts is as follows:

   2.(a)         The Applicant was born in 1959.

   3.(b)         The Applicant started working for the Australian Broadcasting Corporation (ABC) in May 2001 as a band 3 library officer. The Applicant was happy in this position but took leave of absence for 12 months in order to be with his partner in Sydney whilst she was undergoing medical treatment.

   4.(c)        Accordingly on 14 April 2013 the Applicant commenced employment with the Special Broadcasting Service (SBS). The Applicant understood his employment with SBS to be for a period of 12 months, with him initially signing an employment contract for a period of six months with the understanding that this would later be renewed for a further six months.

   5.(d)         During the course of his initial period of employment with SBS the Applicant became concerned as to how he was being treated by his supervisor, Janine Critchley. He felt that he was being isolated, not properly supervised and trained and that female staff members were given preference. The Applicant gave evidence that this treatment in the workplace caused him a great deal of stress and anxiety which aggravated pre-existing conditions including his esophagitis.

   6.(e)        The Applicant spoke to other staff members about the way in which he was being treated and there appeared to be some support for his views.

   7.(f)          On 23 August 2013 the Applicant attended a meeting with Janine Critchley to discuss work issues. The Applicant felt he was unfairly criticised at this meeting and he was also advised that Janine Critchley would not sign his further six-month contract. This constituted a significant problem for the Applicant because during his leave from the ABC he was only permitted to work for SBS. Ms Critchley was apparently aware of this restriction on the Applicant.

   8.(g)         Following this meeting the work situation continued to deteriorate for the Applicant causing him further stress and anxiety. He consulted his general practitioner on 17 September 2013.

   9.(h)         On 20 September 2013 the Applicant was advised by Ms Critchley that his contract would not be renewed as the role was said to have changed. Subsequently the Applicant received an email from Ms Critchley on 24 September 2013 stating that his contract would not be re-signed because of performance issues.

   10.(i)          The Applicant’s symptoms then became much worse and he was certified as unfit for work by his general practitioner on 26 September 2013.

   11.(j) On 6 December 2013, Comcare accepted liability under section 14 of the Act for ‘generalised anxiety disorder’.

   12.(k)         Subsequently Ms Critchley was transferred to the ABC, which meant that the Applicant and Ms Critchley would have to work together again if the Applicant returned to the ABC. After a significant amount of interaction with the ABC, he was advised that the ABC was unable to provide the applicant with suitable work and he received a redundancy payment early in 2016.

   13.(l)          As part of his redundancy arrangements the Applicant was provided with some counselling and retraining opportunities, working with Resilia (a workplace rehabilitation provider) which drew his attention to opportunities in the aged care sector. The Applicant expected to be able to find full-time work in the aged care sector after he had completed his training.

   14.(m)       After completing his training, in about March 2016 the Applicant was employed with Oxley Homecare as an aged care nurse. This required him to drive to patient’s homes to assist them with being able to continue to live at home. This was a role which was within the limitations imposed by the Applicant’s mental health issues, namely as he was able to work independently and did not need to report to a superior.

   15.(n) On 10 October 2016, after the Applicant had been to see Dr Kipling Walker at the request of the Respondent, the Respondent concluded that the Applicant was no longer suffering from a psychiatric condition and that any condition he may have been suffering did not result from his employment with the ABC or SBS. Accordingly the Applicant ceased to be entitled to medical expenses or incapacity payments under the Act. This was later affirmed and the Tribunal is now asked to review that reconsideration decision.

   16.(o)         The Applicant was assessed by Dr Anthony Dinnen on 11 July 2017 as suffering from an adjustment disorder with anxiety and depression. Dr Dinnen concluded that the Applicant’s condition had been significantly contributed to by his employment and that he required continuing treatment including psychiatric treatment together with medication.

   Legislation

3. 3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) provides as follows:

   Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

4. 4. An ‘injury’ is defined in section 5A of the Act as follows:

   “injury” means:

   1.(a) a disease suffered by an employee; or

   2.(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment…..

a. 5. A ‘disease’ is defined in section 5B of the Act as follows:

“disease” means:

1.(a) an ailment suffered by an employee; or

2.(b) an aggravation of such an ailment;

that was contributed to, by a significant degree, by the employee’s employment by the Commonwealth or a licensee.

medical evidence

1. 6.        Evidence as to the Applicant’s medical condition was presented by a number of highly qualified health professionals who had seen the Applicant at various times. Dr Dinnen, a consulting psychiatrist who had been in practice since 1971, assessed the Applicant on 11 July 2017 and prepared a report at that time. Dr Dinnen also prepared a second report after the Applicant had been seen by Mr George Haralambous, a clinical psychologist, at the request of the Respondent. This second report was dated 14 November 2018. Dr Dinnen completed an extensive history of the applicant and reviewed reports from other treating doctors noting a range of pre-existing conditions. Dr Dinnen diagnosed the Applicant with an ‘adjustment disorder’ with anxiety and depression which Dr Dinnen believed had been caused by the Applicant’s treatment at SBS. He noted that these significant psychiatric symptoms were continuing and required ongoing treatment.

2. 7.        In his second report Dr Dinnen took issue with the report of Mr Haralambous and affirmed his previous opinion, saying that Mr Haralambous reaches conclusions that ‘are not consistent with persistent or current manifestations of a genuine work-related diagnosable psychological condition.’

3. 8.        Mr John Carmody, an accredited mental health nurse, gave evidence that he had been treating the Applicant since 2014 and that in his view he was suffering from post-traumatic stress disorder. Mr Carmody also noted that the Applicant had previously been diagnosed with Asperger’s disorder which is part of the autism spectrum. Mr Carmody felt that the Applicant required ongoing treatment with psychotropic medication. Mr Carmody also disagreed with the opinion of Mr Haralambous and stated that he believed that the Applicant’s symptoms were exacerbated and continued to be exacerbated by his treatment at SBS and subsequently.

4. 9.        When asked during his evidence if the Applicant could have successfully taken a similar role to the one that he formerly held at the ABC, Mr Carmody said the Applicant would continue to have issues with self-esteem. He said that the Applicant’s win against the ABC (in getting a redundancy payment) was not a ‘quick fix’ and that the feeling of well-being would fade over time.

5. 10.      Counsel for the Applicant asked  Mr Carmody about an email dated 21 September 2016 from Ms Fiona Simson which referred to a case conference participated in by the Applicant, which reported the following in relation to what the Applicant said:

   Michael confirmed he received his redundancy payout of $80,000.

   Michhael confirmed that he no longer feels stressed by his situation, and Dr Malhotra agreed that he is now able to move forward and continue to explore alternate employment opportunities.

   Michael advised his anxiety has alleviated now knowing that he is not returning to ABC, and is no longer employed by them.

   Michael confirmed there are no existing triggers to his condition…..

6. 11.      Mr Carmody stated that the Applicant had a level of relief that he had a win against the ABC but that this did not mean that all of the Applicant’s problems had ‘gone away’. He noted particularly the Applicant’s loss of self-esteem and the need for ongoing support.

7. 12.      Mr George Haralambous, a qualified psychologist, gave evidence that he had seen the Applicant on 15 August 2017. Mr Haralambous prepared two reports in relation to the Applicant at the request of the Respondent. In the first dated 11 September 2017, having conducted a detailed examination of previous medical reports and a lengthy consultation with the Applicant, Mr Haralambous concluded that the Applicant did not currently present:

   ‘manifestations of a diagnosable psychological condition that, on the basis of probabilities may be reasonably attributed, either by way of cause or persistent aggravation, to the purported circumstances of his employment with SBS.’

8. 13.      Mr Haralambous disputed the diagnosis of Asperger’s syndrome. Mr Haralambous went on to say that:

   ‘…..it is my opinion to a reasonable degree of certainty, that Mr Vallance is fully psychologically capable of all duties commensurate with his education, training and experience but that he has taken the opportunity of his workers compensation claim to retrain and work in the field he finds more enjoyable, ‘rewarding’, ‘meaningful’ and ‘worthwhile’.’

9. 14.      Mr Haralambous confirmed his opinion in his further report dated 5 April 2019.

10. 15.      Dr Kipling Walker, a forensic psychiatrist, saw the Applicant on 21 September 2016. It was on the basis of Dr Walker’s report that Comcare terminated ongoing compensation payments to the Applicant. It is relevant that on or about 14 September 2016 Mr Carmody had contacted Dr Walker and advised him that the applicant had accepted a redundancy from the ABC and that he was now working in a new job that he was happy with.

11. 16.      Dr Walker concluded that:

    Mr Vallance does not have a psychiatric condition of anxiety or depression. Generalised anxiety disorder is characterised by excessive worry about a range of issues. People with this condition are worriers, and are often reserved and shy. He does not have a specific phobia or obsessive compulsive disorder, because he does not describe impairment from the life long fear of heights, and/or checking behaviours. He denies any significant episodes of depression. He does not have an adjustment disorder. Dr Malhotra said that Mr Vallance was “happy” since being offered a redundancy by the ABC.

12. 17.      Dr Walker gave evidence at the hearing that his mental state examination of the Applicant led him to conclude that the Applicant was quick to anger, held grudges and may have a personality disorder, but that these symptoms would not prevent the Applicant working full-time.

13. 18.      Dr Walker also gave evidence that in his opinion any impediments to the Applicant returning to full-time work were not due to any psychological impairment (including adjustment disorder). He also noted that the Applicant had told him ‘that he no longer felt stressed and was ready to work full-time’. Dr Walker saw no problem with the Applicant working in a similar job to the one he had at the ABC. Dr Walker said that he saw no signs of anxiety or depression.

14. 19.      In his written report Dr Walker notes the Applicant’s previous drug use, which was also noted by other doctors along with the previous history of depression and panic attacks. He noted that the Applicant held ‘grudges against the SBS and ABC’. Dr Walker notes Mr Vallance’s ongoing treatment with Mr Carmody and his general practitioner Dr Malhotra (who did not give evidence at the hearing). Most notably Dr Walker states:

    I agree with Mr Vallance that he is fit for full-time work. He is fit for work suitable to his education, training and experience.

    Conclusion

15. 20.      The Tribunal is asked to decide the following.

16. 21. Firstly, whether from 10 October 2016, the Applicant is entitled to compensation in respect to medical expenses and incapacity payments under sections 16 and 19 of the Act respectively, specifically:

    1. 1.        Whether, since 10 October 2016, the Applicant continued to suffer from an injury; and if so
    2. 2.        Do the effects of the injury result in:

    a.    a.   The requirement for medical treatment; and/pr

    b.    b.   Incapacity for employment.

17. 22.      The lengthy medical reports presented to the Tribunal reveal a history of anxiety, depression and perhaps some degree of obsessive compulsive disorder. The Applicant had a history of drug and alcohol use during the period he worked in the music industry.

18. 23. He worked at the ABC from 2001 to 2012 and only left to go to Sydney in order to support his partner who was facing a period of significant illness. He took leave of absence from the ABC and gained employment at SBS. His role at SBS was offered as a six-month contract, but the Applicant was assured that the contract would be renewed for a further six months. His employment at SBS did not work out primarily because of a toxic workplace environment and what appeared to be bullying and harassment of the Applicant by a female supervisor. When the Applicant’s employment with SBS was terminated and he sought to return to the ABC, it appears that the ABC was unable to find suitable employment for him (despite the Applicant being of the opinion that suitable work was available) and he was given a redundancy. There is no doubt that the Applicant’s treatment at SBS at that time did result in an impairment which met the requirements of section 14 of the Act and he was in fact in receipt of ongoing payments from Comcare until 10 October 2016, shortly after Comcare received the report from Dr Kipling Walker.

19. 24.      Dr Walker’s conclusions are supported by the observations in Ms Fiona Simson’s email dated 21 September 2016 detailed at paragraph 7 above.

20. 25.      Under cross-examination from counsel for the Respondent, the Applicant agreed that this email accurately described his state of mind at the time. At that meeting he was accompanied by his general practitioner Dr Malhotra who had been treating him since at least 2013. Dr Malhotra is also noted as agreeing that the Applicant was able to return to work.

21. 26.      The conclusion that the Applicant was able to return to work at that time is not inconsistent with the evidence of Dr Dinnen who when questioned simply gave it as his opinion that although the Applicant may have been able to return to work at that particular time it would not work out long term because of the Applicant’s underlying issues.

22. 27. Accordingly based on the evidence presented the Tribunal is of the opinion that as at 10 October 2019 the Applicant was able to carry out full time work and that as at that date he no longer suffered from an injury (namely generalised anxiety disorder) arising out of or in the course of his employment as defined in section 5A of the Act.

23. 28.      I place particular weight on the evidence of Dr Walker because he is the only specialist who provided a diagnosis of the Applicant at the relevant time. His evidence is totally consistent with the Applicant’s statements at the meeting described in the email detailed at paragraph 10 above, which were further confirmed by him at the hearing. I accept that this was an honest representation by the Applicant of his mental state at that time.

24. 29.      In placing significant weight on the evidence of Dr Walker, I do not discount the evidence of Dr Dinnen and Mr Carmody. They came across as caring and competent practitioners with a long history of treating the Applicant. The reports of these practitioners were much less time specific than that of Dr Walker and perhaps informed more by the Applicant’s history than his state of mind at the relevant time. For this reason I give them less weight in the circumstances of this matter. I also had regard to the statement of Ms Abigail Tisbury the Applicant’s partner, which outlined the difficulties the Applicant faced, especially during the period at SBS. However, it too was more general and less time specific.

25. 30.      I note the Applicant’s further submissions in relation to the manner in which his rehabilitation was handled. Whilst there may have been shortcomings in the way in which his rehabilitation was managed, it is not necessary to examine this issue in light of the findings as to injury.

26. 31.      As it has been found that the Applicant no longer suffered an injury, the Tribunal does not need to determine whether or not the Applicant suffered any impairment or incapacity for work.

    Decision

27. 32. The reviewable decision of the Respondent dated 1 December 2016 which denied liability for compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 is affirmed.

I certify that the preceding 32 (thirty - two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate
Dated: 27 August 2019

Dates of hearing:	5, 6 & 7 June 2019
Date final submissions received:	15 July 2019
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Carroll & O'Dea Lawyers
Counsel for the Respondent:	Mr M Snell
Solicitors for the Respondent:	Lehmann Snell Lawyers