VYSW and Comcare (Compensation)

[2016] AATA 533

VYSW and Comcare (Compensation) [2016] AATA 533 (26 July 2016)

Division

GENERAL DIVISION

File Numbers

2015/2559

2016/1766

Re

VYSW

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	26 July 2016
Place	Sydney

Application 2015/2559

The decision under review, being the decision of Comcare to reject the Applicant’s claim for compensation for an injury being “anxiety disorder, panic attacks bracket pre-existing post-traumatic stress disorder)” made on 30 October 2014, is affirmed.

Application 2016/1766

The decision under review, being the decision of Comcare to reject the Applicant’s claim for compensation for an injury being “fibromyalgia (anxiety related, pain all over my body)” made on 8 March 2016, is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

WORKERS COMPENSATION - injury - liability to compensate - generalised anxiety and post-traumatic stress disorder - whether Applicant suffered an aggravation of an ailment - whether aggravation contributed to, to a significant degree by the employment - decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5A, 5B, 14(1)

REASONS FOR DECISION

Deputy President J W Constance

26 July 2016

INTRODUCTION

1. The Applicant was employed by the Department of Immigration and Citizenship for a period of six months commencing in September 2011. During that period she claims that she was treated badly by her Manager and other work colleagues.

2. Although the Applicant claims to have been injured during the period of her employment, she did not make a claim in respect of that injury, nor did she notify Comcare or her employer of the alleged injury, until October 2014.

3. Comcare has refused liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) to compensate the Applicant for the claimed injury (application 2015/2559) and for a subsequent injury which she claims to have suffered as a result of the effects of the first injury (application 2016/1766). The Applicant has applied to the Tribunal to review both decisions.

4. For the reasons which follow both decisions will be affirmed.

   BACKGROUND

5. The Applicant is 47 years old. She arrived in Australia in 1993 from Bosnia and Herzegovina as a refugee from the Bosnian war. 

6. The Applicant arrived alone and quickly set about making a new life for herself. She married in 1996; there are three children of this marriage. The Applicant divorced in 2005 and thereafter was a sole parent raising the children without support from their father.

7. In 2011 the Applicant married for a second time. This relationship ended in 2014.

8. Having settled in Australia with her young family the Applicant turned her attention to seeking employment. In 2001 she gained Interpreting Accreditation in English and Bosnian languages. She then started to work for a number of government and private agencies as a freelance interpreter.

9. In 2004 she had started to experience some level of anxiety. In 2005 she sought medical help and consulted a psychiatrist, a clinical psychologist and a physiotherapist between 2005 and 2010. In that period she was prescribed medication and received cognitive therapy. She was diagnosed with generalised anxiety and post-traumatic stress disorder.

10. In 2009 she enrolled in what she describes as her “dream course” studying sociology at University. In the same year she gained casual employment as a customer service officer at the Sydney International Airport. She continued working and studying full-time at the University.

11. The Applicant says that towards the end of her university study in 2011 she was feeling well and her mental health condition was very well managed. At that time she was not taking medication.

12. In 2011 the Applicant was successful in gaining a temporary full-time position with the Department of Immigration and Citizenship. Her initial appointment was for three months commencing in September 2011. In this time she successfully completed her probation period and her appointment was extended for a further three months. The Applicant’s employment with the Department ended in March 2012 when her contract expired.

13. It was during this term of employment that the Applicant says she suffered the psychological condition which is the subject of this claim. I will refer to further details of this period later in these reasons.

14. In April 2012 the Applicant applied for a new role in the Department. Her application for this position was unsuccessful. Subsequently she obtained employment with the New South Wales Attorney-General’s Department and later she returned to work at the Sydney International Airport.

    THE CLAIMS AND REVIEWABLE DECISIONS

    Application 2015/2559

15. On 30 October 2014 the Applicant lodged a claim for workers’ compensation with Comcare. The claimed injury was “anxiety disorder, panic attacks (pre-existing post traumatic stress disorder)”.[1]The time of the injury was specified as December 2011.  The Applicant first sought medical treatment for the injury in that month.

    [1] Exhibit R1 p.10.

16. In a decision made on 8 May 2015 Comcare denied liability for the condition. The Applicant has applied to the Tribunal to review this decision.

17. For the reasons which follow the decision under review will be affirmed.

    Application 2016/1766

18. On 14 October 2015 the Applicant lodged a further claim for compensation with Comcare in respect of an injury being “fibromyalgia (anxiety related, pain all over my body)”[2]. It was claimed that this injury was caused by the anxiety arising from the effects of the psychological injury the subject of the first claim.

    [2] Exhibit R1, 2016/1766 T-documents p.21.

19. As I have decided to affirm the decision rejecting the first claim, it follows that the decision of Comcare denying liability for the second claim will also be affirmed.

    LEGISLATION

20. Section 14(1) of the act provides:

    (1)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.

21. Section 5A(1)(a) defines injury as including:

    (a)  a disease suffered by an employee …

22. Section 5B provides:

    (1)  In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

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

    (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)  In this Act:

    significant degree means a degree that is substantially more than material.

23. Section 4 of the Act defines ailment and aggravation as follows:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    aggravation includes acceleration or recurrence.

    THE ISSUES

24. The following issues arise for determination.

    (1)  Has the Applicant suffered a “disease”, within the meaning of the Act?

    (2)  If so, has the disease been suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”?

    ISSUE 1:  HAS THE APPLICANT SUFFERED A “DISEASE”, WITHIN THE MEANING OF THE ACT?

    Has the Applicant suffered an “ailment” or the “aggravation of an ailment”?

25. In a report dated 20 November 2014[3], Dr Gascoigne, the Applicant’s general practitioner, stated that the Applicant suffered from:

    ·depressive illness;

    ·anxiety;

    ·panic attacks;

    ·post-traumatic stress disorder.

    It was reported also that the Applicant has suffered periodic decompensations from these conditions from at least 2004.

    [3] Exhibit R1 p.34.

26. It is not in dispute that the Applicant has suffered, and continues to suffer, the above conditions from time to time. It is apparent from the evidence that the Applicant initially suffered from a psychological disorder as a consequence of her experiences in the Bosnian war.

27. In view of the Applicant’s evidence that her psychological disorder was under control at the time she commenced employment by the Department and that at that time she was no longer taking medication, I will consider her claim as being a claim for an aggravation of her post-traumatic stress disorder, anxiety and panic attacks.[4] This is consistent with the report of Dr Gascoigne to which I have referred and the opinion of Dr Cocks, General Adult and Forensic Psychiatrist.

    [4] The Applicant refers to her condition as being aggravated by her employment. See exhibit A4 p.3.

28. Dr Cocks assessed the Applicant at the request of Comcare on 27 November 2014. He provided a report dated 28 November 2014[5] in which he stated “in my opinion the claimant’s current medical condition is an aggravation of a pre-existing and underlying condition”.

    [5] Exhibit R1 p.118.

29. On the basis of the evidence of the Applicant, Dr Gascoigne and Dr Cocks I am satisfied that by no later than November 2014 the Applicant was suffering an aggravation of her pre-existing conditions of anxiety, panic attacks and post-traumatic stress disorder.

30. I am satisfied that the conditions from which the Applicant suffers are ailments within the meaning of section 4 of the Act and therefore she has suffered an aggravation of those ailments within the meaning of that section.

    Was the ailment or aggravation “contributed to, to a significant degree” by the Applicant's employment by the Department?

    The Applicant’s evidence

31. I accept the Applicant’s evidence that when she commenced employment with the Department in September 2011, she was feeling well and had ceased taking the medication prescribed for treatment of her generalised anxiety and post-traumatic stress disorder. I accept also her evidence that the “beginning of my employment with DIAC was an absolute delight. I had a lot of support and help from Management and peers. I was settling in very well ……” [6]

    [6] Exhibit A3.

32. When she was working for the Department, the Applicant’s indirect supervisor was Mr Davis. The Applicant gave evidence that it was the conduct of Mr Davis which caused the claimed injury.

33. The alleged conduct of Mr Davis of which the Applicant complains includes;

    ·that he treated her with disdain;[7]

    ·that he caused her to work unethically by failing to sign documents which she then signed when she was not authorised to do so;[8]

    ·that he abused her and targeted her with sarcasm;[9]

    ·he created a folder for her files only;[10]

    ·he humiliated her by commenting on her late arrival at work in front of her colleagues;[11]

    ·during a meeting shortly before the Applicant’s employment contract expired, Mr Davis told her that he was not happy with the manner in which she was doing her work.[12]

    [7] Exhibit A3.

    [8] Exhibit A3.

    [9] ;Exhibit A4.

    [10] Exhibit A3.

    [11] Exhibit R1 p.6.

    [12] Exhibit R1 p.7.

34. The Applicant also gave evidence that other work colleagues “verbally degraded”[13] her and she felt that her team leader resented her.[14] She was not specific in these claims – her primary concern was the conduct of Mr Davis. She said that she was humiliated by the preparation of notes made to assist her with her work although she was happy to use them at the time.

    [13] Exhibit A2.

    [14] Exhibit A1 & A4.

35. In her claim the Applicant stated that she suffered from the claimed condition in December 2011. In her statement which accompanied the claim she said that at the beginning of 2012 she went to see her doctor and started taking the antidepressants, Zoloft and Alepam.[15]

    [15] Exhibit R1 p.7.

    Records of General Practitioners

36. In her report of 20 November 2014[16] Dr Gascoigne stated:

    Clinical notes at this practice do not appear to record any specific event triggering the injury apart from the experience of “stress with her new job” (4/1/2012) and related (anxiety) (15/3/2012). …… In the case of psychological injury, it is difficult to be certain of the relevant impacts of work place dynamics, aggravations and pre-existing conditions just from the brief notes of other doctors. My actual involvement with the patient regarding this WorkCover issue is in fact limited to submission of a claim at her request.

    [16] Exhibit R1 p.34.

37. The consultation notes of the visit of 4 January 2012 by Dr Huynh, (the Applicant’s usual treating doctor) records in part:

    …… her mother has just passed away a few days ago and she has been crying/upset

    very stressed with her new job – she has had her employment extended but is still not permanent, learning alot of things at work and finding it stressful.[17]

    [17] Exhibit R1 p.85.

    The report of Dr Cocks

    In his report of 28 November 2014[18] Dr Cox noted that the Applicant stated that;

    [18] Exhibit R1 p.112.

    … her problems began within her employment when she started to face alleged intimidation from her manager……. The claimant stated these panic attacks emerged whilst working with DIAC.……

    ……

    In my opinion the claimant fulfils criteria for a Generalised Anxiety Disorder (300.02 DSM-V). The claimant suffers from excessive anxiety and worry with ruminations about her problems. Her anxiety involves multiple worries about family, social, financial and employment related affairs.

    ……

    The claimant fulfils the criteria for Panic Disorder (300. 01 DSM-V) …… The onset of the Panic Disorder is unknown. In my opinion it was present in 2008 when she required a hospital admission secondary to a panic attack.

    ……

    The claimant historically fulfils criteria for Post Traumatic Stress Disorder (309.81 DSM-5).  It should be noted that the post traumatic stress disorder is currently in remission.

    …..

    In my opinion the claimant’s current medical condition is an aggravation of a pre-existing and underlying condition. It is evident that the claimant was suffering from a Generalised Anxiety Disorder and Panic Disorder prior to the claimed injury. Her exposure to work-related stress has resulted in a relapse of the illness.

    ……

    It is very difficult to determine an exact level of contribution for each of the employment and non-employment-related factors listed. The claimant suffers from a pre-existing mental illness that was exacerbated as a result of employment stressors whilst working for The Department of Immigration and Citizenship. The development of Generalised Anxiety Disorder and Panic Disorder is multifactorial. In the claimant’s case a combination of biological, psychological, social and cultural factors are all responsible for the development of her mental illness. Separating these and apportioning a percentage contribution would be inconsistent and misleading.

    Report of Ms Antonios, Clinical Psychologist

38. The Applicant has been a patient of Ms Antonios since 2008/2009.  Ms Antonios provided a report dated 9 March 2016.[19]

    [19] Exhibit A5.

39. The Applicant was first seen by Ms Antonios for the management of her severe levels of anxiety and panic symptoms. At the time she was treated for panic disorder.

40. Ms Antonios records the history of alleged behaviour of Mr Davis as relayed by the Applicant. Ms Antonios also reports the belief of the Applicant that her anxiety was aggravated during the course of her employment with the Department and not with the Department of Justice; Ms Antonios does not express an opinion that this was so. However she does report that the Applicant tried very hard to ignore her belief but “ultimately it took its toll and manifested in severe anxiety.”

    The report of Associate Professor Robertson, Consultant Psychiatrist

41. Associate Professor Robertson assessed the Applicant on 18 August 2015 at the request of the Solicitors for Comcare. He provided a report dated 18 August 2015.[20]

    [20] Exhibit R4.

42. In his report, Associate Professor Robertson expressed the following opinion:

    I do not believe any credible argument can be made that the period of employment with the Department of Immigration and Border Protection was the cause or substantial contributing factor to her psychological injury but rather was a source of exacerbation of the condition. It is critical to note that this was one of a number of psychosocial stressors that aggravated the course of her illness.

    The evidence of Mr Davis, Manager

43. Mr Davis gave evidence and provided a statement dated 18 March 2016.[21]

    [21] Exhibit R2.

44. Mr Davis managed approximately 35 staff (including the Applicant) at the time the Applicant was employed by the Department. He did not directly supervise the Applicant although the Applicant’s supervisor reported directly to him.

45. The only direct interaction between Mr Davis and the Applicant in relation to her work was her presentation of certain applications to Mr Davis for his signature. He referred to instances of that interaction as follows:

    At times, notwithstanding the fact that I was actively involved in a conversation with someone else, she would thrust the forms under my nose. I thought this indicated somewhat of a lack of an appropriate level of awareness or perception of the usual workplace norms of behaviour. That was the only respect in which I ever held any view as to the manner in which she performed her duties from direct personal experience of her work. I never admonished her, criticised her or raised my voice at her, either in public or privately.[22]

    [22] Exhibit R2 para.19.

46. Mr Davis denied having ever engaged in any critical or belittling behaviour towards the Applicant. He believes that he would have been aware had there been any unpleasantness between them in their working relationship. From his discussions with the Applicant he was aware of a degree of emotional vulnerability due to the many difficult circumstances she had shared with him and others.

47. The Applicant’s work requiring Mr Davis’ signature was not processed according to a timetable or deadline and there was no basis for her belief that she was being required to sign the document herself and therefore required to work unethically. At the time, Mr Davis was unaware of the Applicant’s practice in this regard. Such action would have been “a serious matter having regard to the potential security sensitivities” and a matter he would have been obliged to act upon had he been aware of it.[23]

    [23] Exhibit R2 para.29.

    The Applicant’s conduct after her contract of employment by the Department ended

48. The Applicant’s contract with the Department ended in March 2012. In April 2012 a notice appeared in the Government Gazette advertising vacancies within the Department. The Applicant applied for a position with the Department, providing the name of Mr Davis as her referee. The Applicant says that after cessation of her employment with the Department, her condition continued to be aggravated but that nevertheless she was successful in the rigorous recruitment process.[24]

    [24] Exhibit A4.

49. The Applicant was unsuccessful in her application. In her opinion she failed to gain a position by reason of the negative report by Mr Davis.

50. On 1 July 2012 the Applicant wrote to the Department withdrawing her request to be placed on the temporary employment register.[25]  the letter included the following:

    Mr Peter Davis indirectly forced me to work unethically, did not support (including his team leader ……) me while learning, and was resentful towards me for the reasons that I am not aware of.

    ……

    I feel powerless, as Mr Peter Davis’s [sic] has mistreated me whilst working for DIAC. My deputy Manager …… has not been contacted regarding my work performance. I though [sic] and wished to work for the organization(DIAC) who claims to have open, transparent, safe, fair workplace …  After this has been proven to me otherwise, I have lost trust, as I feel betrayed, bullied by this organization.

    [25] Exhibit A1.

1. In October 2013 the Applicant obtained a full-time position for one year with the Department of Justice in New South Wales, working in a Local Sheriff’s office. She says that she was taking increasing amounts of medication in order to cope with the anxiety and panic attacks. In her opinion the anxiety was aggravated by the actions of Mr Davis and others in the Department of Immigration and Citizenship. She stated that “I could not get out of my head covert betrayal and bullying experienced whilst working for DIAC”[26].

   [26] Exhibit A4.

2. On 20 February 2014 the Applicant consulted her general practitioner, Dr Huynh. Dr Huynh noted that the Applicant was then working full-time as a clerk and had been feeling rundown and tired.[27]

   [27] Exhibit R1 p.99.

3. A further consultation with Dr Huynh took place on 18 March 2014. The notes of that consultation read, in part:

   …… Feels that she is overstretching herself with kids/work

   discuss panic attacks – these are much better but she still gets them occasionally when she feels trapped and can’t escape – e.g. with going to the dentist and getting root canal/injections she occasionally tries to challenge herself to see if she can handle stressful events without taking oxazepam.[28]

   One of the reasons for the visit was noted as “panic attacks”.

   [28] Exhibit R1 p.100.

4. On 14 July 2014 the Applicant consulted Dr Matthei, a general practitioner at the same practice as Dr Huynh. The clinical note of that consultation[29] records, in part, the following:

   ·“anxiety symptoms have been building in intensity gradually over the past few months main triggers stress at work and anxiety over her daughter’s health”;

   ·the Applicant had experienced stressful interactions with a customer at work causing her to leave work and to feel too anxious to return to work that day;

   ·over the previous four weeks she had experienced heightened anxiety with panic attacks;

   ·she had feelings of guilt about leaving work to attend to her daughter;

   ·“obviously anxious and nervous when recounting the events at work”;

   ·the Applicant asked for a WorkCover medical certificate and became unhappy when the Doctor refused to provide this.

   [29] Exhibit R1 p.101.

5. On 30 October 2014 the Applicant consulted Dr Gascoigne at the same Medical Practice. The clinical notes of that consultation[30] show that the Applicant requested the completion of a Comcare claim form. She stated that she was suffering flashbacks of perceived humiliation in the workplace and was having trouble sleeping and concentrating.

   [30] Exhibit R1 p.104.

   Discussion

6. To be satisfied that the aggravation of the ailment suffered by the Applicant is a “disease” within the meaning of the Act, I must be satisfied on the balance of probabilities that the Applicant’s employment by the Department contributed to that ailment.  If I am satisfied of this, I must be satisfied also that the contribution was to a “significant degree”.

7. I am not satisfied that the Applicant’s employment contributed to the aggravation of her condition. Even had I been so satisfied, I would not have been satisfied that the contribution was to a “significant degree”.

8. The evidence of contribution is very limited. I accept that at some stage after her employment with the Department ceased, the Applicant formed the view that her employment had contributed to her psychological problems. I am not satisfied that she held this view during the period of employment. In this regard I take into account the Applicant’s evidence that she was “bullied covertly (which [she] did not realize at the time)”.[31]

   [31] Exhibit A4.

9. I do not accept that the Applicant was in fact treated by Mr Davis or any of her work colleagues in the way she now believes. I accept the evidence of Mr Davis in this regard. However, this does not mean that I have formed the view that the Applicant was not an honest witness. It is likely that her recollection of events has been affected by her pre-existing psychological condition and events that happened after her employment by the Department came to an end.

10. On 4 January 2012 Dr Huynh recorded that the Applicant was stressed with her new job. However the Doctor recorded that the Applicant was finding work stressful by reason of her not being permanently appointed and that she was learning a lot of things. There was no reference to her being treated inappropriately by Mr Davis or any other member of staff.

11. Dr Cocks and Associate Professor Robertson expressed opinions that the Applicant’s condition was exacerbated by her employment, but their opinions were based on the history given by the Applicant which I have found to be unreliable.

12. After her employment ceased the Applicant sought a permanent position with the Department in the same area in which she had worked previously. She nominated Mr Davis as her referee. This supports my conclusion that, during her employment, conduct that she now attributes to Mr Davis and other staff members did not occur.

13. Even if, contrary to my finding, the Applicant’s employment did contribute to an aggravation of a pre-existing condition, I would not be satisfied that her employment contributed to her ailment to a “significant degree”. I note that subsection 5B(3) provides that “significant degree means a degree that is substantially more than material”.

14. Dr Gascoigne had the advantage of seeing the Applicant shortly during her period of employment with the Department. She acknowledged that it is difficult to be certain as to the relative impacts of workplace dynamics on the aggravation of a pre-existing condition. Dr Cocks also stated that it is very difficult to determine an exact level of contribution by employment and non-employment-related factors. In his view, apportioning a percentage contribution would be “inconsistent and misleading”[32].

    [32] Exhibit R1 p.119.

15. Both Associate Professor Robertson and Dr Cocks referred to the Applicant’s anxiety involving multiple factors in addition to the contribution (if any) from her employment. There is no evidence which would support a finding as to the relative contributions of these factors.

    Issue 2: Was the disease “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [the Applicant’s] employment”?

16. In view of the conclusions I have reached this question does not arise for determination.

    CONCLUSION

    Application 2015/2559

17. The decision under review, being the decision of Comcare to reject the Applicant’s claim for compensation for an injury being “anxiety disorder, panic attacks (pre-existing post-traumatic stress disorder)” made on 30 October 2014, will be affirmed.

    Application 2016/1766

18. The decision under review, being the decision of Comcare to reject the Applicant’s claim for compensation for an injury being “fibromyalgia (anxiety related, pain all over my body)” made on 8 March 2016, will be affirmed.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 26 July 2016

Dates of hearing	18 March 2016, 19-20 April 2016
Date final submissions received	20 April 2016
Applicant	In person
Solicitors for the Respondent	M Snell, Lehmann Snell Lawyers