Weatherburn and Comcare (Compensation) - [2019] AATA 4196

Weatherburn and Comcare (Compensation) [2019] AATA 4196 (14 October 2019)
Division:GENERAL DIVISION
File Number(s): 2017/3172; 2017/5860
Re:Jennifer Weatherburn
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:14 October 2019
Place:Canberra

The Tribunal sets aside the reviewable decisions dated 20 April 2017 and 4 September 2017 and finds in substitution that Miss Weatherburn is entitled to compensation under ss 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 for persistent depressive disorder.
............................................................
Deputy President Gary Humphries AO
Catchwords
COMPENSATION – major depressive disorder – whether the applicant’s major depressive disorder remains contributed to, to a significant degree, by her former employment – multiple possible causes of applicant’s condition – whether Comcare has discharged the evidentiary burden required by Comcare v Power [2015] FCA 1502 – decisions under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Boyd v Australian Industry Development Corporation [1990] FCA 525
Comcare v Power [2015] FCA 1502
Plumb and Comcare [2004] AATA 999
Prain v Comcare [2017] FCAFC 143
REASONS FOR DECISION
Deputy President Gary Humphries AO
14 October 2019
BACKGROUND

Jennifer Weatherburn had been a public servant for many years when, in August 2012, she suffered a psychological injury while working at the (then) Department of Immigration and Citizenship. Her injury related to what she described as bullying and to an increasingly heavy workload in a small section tasked with producing information for new immigrants. She ceased working at that time, and was medically retired a year later. On 9 January 2013 Comcare accepted liability for a condition of Major Depressive Disorder, recurrent episode under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Before the Tribunal in these proceedings were two reviewable decisions made by Comcare. They were:
(a)
a reviewable decision dated 20 April 2017, which affirmed an initial determination

dated 22 February 2017, in which Comcare decided that as of 22 February 2017 Miss Weatherburn had no present entitlement to compensation under ss 16 and 20 of the Act because she no longer suffered the effects of her accepted condition, and
(b)a reviewable decision dated 4 September 2017 by which Comcare made a determination of own motion deciding that Miss Weatherburn had no entitlement to compensation under s 20 of the Act for the period 21 February 2017 to 20 April 2017 because she not suffered the effects of the compensable condition during that period.
The second of these reviewable decisions appears to be substantially redundant, since it simply replicates the effect of the first reviewable decision.
The delegate making the reviewable decision of 20 April 2017 referred to Miss Weatherburn suffering from an underlying life-long psychiatric condition diagnosed as depressive disorder,[1] and that her present symptoms were due to that condition and not to the flare-up caused by workplace circumstances in 2012.
[1] The use of italicised text in this decision generally indicates direct quotation.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Weatherburn and Comcare (Compensation)

Details

AGLC: Weatherburn and Comcare (Compensation) [2019] AATA 4196
Case: [2019] AATA 4196
Decision Date: 14 October 2019

CaseChat Overview and Summary

This matter concerned an appeal by Miss Weatherburn against decisions by Comcare to cease her compensation payments for a psychological condition. The central dispute was whether Miss Weatherburn’s major depressive disorder continued to be contributed to, to a significant degree, by her former employment. The Tribunal acknowledged that Miss Weatherburn suffers from a long-term depressive condition, which was aggravated by her employment in August 2012, a fact previously accepted by Comcare. The critical question for the Tribunal was to determine the extent to which her previous employment remained a significant contributing factor to her ongoing psychological condition as of February 2017, when Comcare's liability ceased.

The legal issues before the Tribunal were whether Miss Weatherburn's psychological condition was contributed to, to a significant degree, by her previous employment, and whether Comcare had discharged the evidentiary burden required by the principles established in *Comcare v Power* [2015] FCA 1502. This involved assessing the relative contributions of her employment and other life stressors to her persistent depressive disorder, considering the evidence of medical experts and Miss Weatherburn herself. The Tribunal also had to consider whether the situation was analogous to *Prain v Comcare* [2017] FCAFC 143, where subsequent destabilising events had pushed the employment factor into the background.

The Tribunal reasoned that determining the causation of a psychological condition is inherently subjective and relies heavily on the professional experience and judgment of medical experts, while also giving significant weight to the affected individual's perspective. It was uncontentious that Miss Weatherburn suffers from a lifelong depressive condition that has fluctuated and been impacted by family stressors. While her employment had aggravated this condition, leading to a compensable injury, the evidence regarding the ongoing significant contribution of that employment was ambivalent. The Tribunal found itself unable to conclude, on the balance of probabilities, whether her former employment continued to be a significant contributing factor.

Applying the authority of *Comcare v Power*, the Tribunal set aside the reviewable decisions made by Comcare on 20 April 2017 and 4 September 2017. In substitution, the Tribunal found that Miss Weatherburn remained entitled to compensation under sections 16 and 20 of the relevant Act for persistent depressive disorder. Comcare was ordered to pay Miss Weatherburn's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was uncontentious that Miss Weatherburn has suffered a long-term depressive condition. She suffered a work-caused aggravation of that condition in August 2012, a fact acknowledged by Comcare’s acceptance of liability for that aggravation in January 2013. The issue before the Tribunal in these proceedings is therefore a relatively simple one: pursuant to s 5B, has Miss Weatherburn’s psychological condition been contributed to, to a significant degree, by her previous employment? The relevant dates at which this question is to be considered is 21/22 February 2017, the dates referred to in the reviewable decisions as the dates on which Comcare’s liability ceased. However, as the discussion below will indicate, the question is no easier to answer today that it was in February 2017.THE EVIDENCE The factual account which follows is collated from a combination of facts agreed between the parties, tendered documents and evidence taken at the hearing. Miss Weatherburn is 63 years old. She has never married. She said she had worked all her adult life until her injury in 2012; she had gained a lot of satisfaction from working. She told the Tribunal that she first began to experience depression while working as a nurse in 1974. However, she first consulted a psychiatrist (Dr Tony Lee) in 1990. Dr Lee diagnosed melancholic depressive symptoms. She was treated with Anafranil from 1990, and later with Fluoxetine. She has taken various antidepressants continuously since the early 2000’s. Her condition fluctuated over that time, sometimes as a result of incidents such as her mother’s cancer and the death of a close friend. Miss Weatherburn consulted Dr William Knox, consultant psychiatrist, in around 2001. This related to her discovering that her mother was suffering from cancer. In a letter dated 19 February 2001, Dr Knox stated that she was seen for her Dysthymia Disorder and had a number of personality traits. He considered she was unassertive and easily felt underappreciated. However, he wrote that it was apparent she was feeling better, partly on account of good news about her mother’s illness. She does not feel it necessary to see me further. She saw a psychologist, Mr Tony Corless, in 2002. He administered a Self-report Inventory of Depressive Symptoms questionnaire and noted that she scored in the severely depressed range, putting her in the major depressive episode range. In a letter to her then GP, Dr Yeung, dated 20 June 2002, Mr Corless reported that Ms Weatherburn believed that her depression symptoms had been more severe in the past, particularly when she had first become depressed around 12 years ago. She agreed to a course of cognitive-behavioural therapy for her depressed mood. In cross-examination she agreed that chronic tiredness was one of the features identified by Mr Corless. Dr Patrick Cullen, psychiatrist, wrote a letter to Dr Yeung dated 4 July 2002. He reported that Miss Weatherburn had problems from an early age: overly sensitive, fearful, dependent on family, with low self-esteem and a habit in childhood of pulling out hair from her head and eating it. Her history suggests lifelong neurosis and a vulnerability to develop episodes of depression, probably with much reactivity, which will be a persistent trait.

Decision

Reasons for decision

The Tribunal was referred to the decision in Prain v Comcare [2017] FCAFC 143, where the Tribunal had concluded that a series of destabilising events following the compensable injury had the effect of pushing the employment factor further and further into the background (quoted at [87]), such that the compensable injury no longer made a significant contribution to Mrs Prain’s ongoing mental illness. The Tribunal in these proceedings considers that the evidence about the relative roles of compensable and non-compensable factors is in a much more ambivalent state than was the case in Prain.CONCLUSION As the foregoing discussion might convey, it has been difficult for the Tribunal to reach a state of clear satisfaction on the question before it: has Miss Weatherburn’s psychological condition been contributed to, to a significant degree, by her previous employment? Plausible and persuasive evidence was presented in the course of the hearing to answer that question both Yes and No. In Comcare v Power [2015] FCA 1502 Katzmann J held as follows at [70]:…I accept that [it] is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made. The statement the Tribunal made in the present case that Comcare did not discharge its onus should be taken to mean that the Tribunal was not persuaded that Ms Power was no longer suffering from the effects of the compensable injury. Here, after considering all the evidence, I am unable to decide either way whether, on the balance of probabilities, Miss Weatherburn continues to suffer a psychological condition contributed to, to a significant degree, by her former employment with the Department. Accordingly, on the authority of Power, I set aside the reviewable decisions dated 20 April 2017 and 4 September 2017 and find in substitution that Miss Weatherburn is entitled to compensation under ss 16 and 20 of the Act for persistent depressive disorder. Comcare is to pay Miss Weatherburn’s costs, as agreed or taxed, pursuant to s 67(8) of the Act.

Ratio Decidendi

Legal Principle Established

Psychologist Susan Pelengaris gave evidence at the hearing. A psychological report she authored dated 20 May 2019 was tendered. In it she said that Miss Weatherburn continued to suffer from what Dr Matias had diagnosed as Major Depressive Disorder and Anxiety (panic attacks). When asked if she still suffered from the workplace injury, she responded “Yes” in that she is in limbo in an unresolved situation and financially impinged. Ms Pelengaris noted in her evidence that Miss Weatherburn had experienced a re-aggravation of her condition as a result of Comcare terminating her eligibility for compensation in 2017. CONSIDERATION As already mentioned, the sole issue before the Tribunal is whether Miss Weatherburn’s former employment continues to make a contribution, to a significant degree, to her psychological condition. I find that that condition is best described as persistent depressive disorder (or dysthymia), that being the opinion of Drs Knox, Ventura and Lovell. In answering that question, the Tribunal is assisted by a number of facts which are either common ground between the parties or are so apparent on the evidence as to be incontrovertible. Those facts are:(a)Miss Weatherburn suffers a lifelong depressive condition;(b)That condition has fluctuated in acuity throughout her life;(c)Her employment at the Department aggravated that condition in the period leading up to August 2012, such that a compensable injury under the Act arose;(d)She continues to suffer from a depressive condition;(e)Stressors relating to her family have been factors impacting on her depressive condition both before and after August 2012;(f)She believes that factors relating to her former employment continue to impact on her depressive condition, although her belief as to the effect of her former employment on her condition is not determinative of that relationship; and(g)She was a witness of truth in these proceedings. One further fact should be accepted, despite it not being uncontested. That fact is that she is not presently fit for employment. With the exception of Dr Ventura, that was the unanimous opinion of the expert witnesses. By its nature, a question concerning the impact of certain factors on the course of a psychological condition is a matter lying substantially at the feet of medical experts. Clearly, there is no empirical test available to answer this question; rather, it will be one determined largely on the basis of applying professional experience and judgement to the available evidence. Such experience and judgement may, as the facts of this case illustrate, quite reasonably lead to strikingly-divergent conclusions as to the cause or causes of a condition, such is the subjectivity of the issue at hand. Of course, the views of a person affected by such a condition will be a seminal area of focus of that professional experience and judgement. That person is uniquely placed to reflect on what has upset their mental well-being. As already noted, however, that person’s views are not necessarily determinative of what factors have caused or contributed to their condition. Whereas one would accord considerable weight in respect of causation to the evidence of a person who, say, has lost a leg in an accident, the same weight cannot as readily be accorded to the evidence of a person who has lost their psychological equilibrium, particularly where that loss has occurred over an extended period.