Webber and Comcare (Compensation)
[2023] AATA 4032
•4 December 2023
Webber and Comcare (Compensation) [2023] AATA 4032 (4 December 2023)
Division:GENERAL DIVISION
File Number:2021/3235
Re:DAVID WEBBER
APPLICANT
AndCOMCARE
RESPONDENT
DECISION
Tribunal:Member Andrew McLean Williams
Date4 December 2023
Place:Brisbane
The decision of the Respondent dated 26 March 2021 is affirmed.
..[sgn]......................................................................
Member Andrew McLean Williams
CATCHWORDS
Workers Compensation (Cth) - Injury – Disease – Ailment – Whether injury arose out of or during the course of employment – Whether injury arising out of or during the course of employment aggravated an underlying condition – Pre-existing condition – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin (2016) 258 CLR 467
Mitchell and Comcare [2021] AATA 3376
REASONS FOR DECISION
Member Andrew McLean Williams
4 DECEMBER 2023
The Applicant, Mr David Webber (‘Mr Webber’), seeks a review before the Tribunal of a decision made by Comcare (‘the Respondent’) to deny his claim for compensation pursuant to s.14 of the Safety, Rehabilitation and Compensation Act (‘the SRC Act’). The claim was brought in respect of a claimed condition of Adjustment Disorder with mixed anxiety and depression, (or an aggravation thereof), which Mr Webber claims he suffered on 29 or 30 July, 2020.
The Tribunal has determined that the decision by the Respondent to deny liability for the Applicant’s claim was the correct decision.
In light of the following reasons, the Tribunal now affirms the decision under review.
Relevant Chronology and Factual Background:
Mr Webber is a 57-year old married man, who commenced working as a Services Officer with Services Australia, on 28 February 2000.
At all relevant times Mr Webber remained employed at Services Australia, in Bundaberg. It is also uncontentious that Mr Webber qualifies as an “employee” within the meaning of section 5 of the SRC Act.
On 9 November 2020 Mr Webber made a claim for workers’ compensation for ‘depression/anxiety’ (T4, p.20). On 15 November 2020 Mr Webber submitted a short statement of events in support of his claim (T7.1). In part therein, Mr Webber said:
I have worked as a public servant since 2000 in Bundaberg in Customer face to face service.
The claim is for anxiety/Depression bought on by challenging work environment, culminating in an incident that occurred at work on the 30/07/2020.
On 15 January 2021 a Delegate of the Respondent declined any liability to pay compensation to Mr Webber in respect of the claimed condition (T15). This determination was later affirmed on internal review, on 26 March 2021 (T1.2).
On 14 May 2021 Mr Webber applied to the Tribunal for a review of the Respondent’s internal review decision, that dated 26 March 2021 (T1).
Mr Webber contends that in March 2020, in consequence of the Covid-19 pandemic, his workload increased dramatically, such that he was required to work six days per week. Mr Webber says that in consequence of COVID-19, Services Australia customers were also often irritable, and angry.
On 25 July 2020 Mr Webber started to experience chest pains, and during the following week he experienced symptoms of anxiety at work; thus making it more difficult to concentrate and communicate. On 30 July 2020 Mr Webber left work because of these symptoms.
On 31 July 2020 Mr Webber attended his general practitioner, Dr Kaufman, and was placed on sick leave for two weeks. After those two weeks leave, Mr Webber returned to work, and requested that he be placed on alternate duties, those involving less interaction with customers. Mr Webber says however that he continued to experience symptoms of anxiety, and that his memory and concentration also remained poor.
In October 2020 Mr Webber took annual leave, for two weeks. Yet, when Mr Webber returned from that leave, he still found that he continued to struggle. Mr Webber ceased work altogether on 25 November 2020, having lodged his application for workers’ compensation on 9 November 2020.
There is some prior medical history of relevance. Mr Webber was first prescribed Valium in 2002 (R8, p. 5)). Mr Webber also reports having had a nervous breakdown in September 2003, and then another, in 2012 (T17, p. 130). Mr Webber was first prescribed sertraline (ie: Zoloft) on 11 March 2004, which continued to be prescribed until 23 March 2021. (R8, pp. 14-26).
It is also relevant to record that Mr Webber took the following periods of leave, prior to the events on 29 and 30 June which are at the centre of this claim:
-4 – 28 February 2020: Carer’s Leave;
-2 – 13 March 2020: Annual Leave;
-8 – 29 June 2020: Long Service Leave, and Annual Leave;
-14 April 2020, 11 May 2020 and 21 July 2020: Personal Leave, attributable to illness (R16).
Mr Webber claims to have experienced a dramatically increased workload in consequence of the COVID-19 pandemic and was required to work overtime because of this. Records held by the Respondent (T18.1) reveal that between 29 March and 4 May 2020, Mr Webber worked between 5 and 7.5 hours on one day per weekend on six (6) occasions. Mr Webber did not however work on any of the three public holidays also falling within this timeframe.
By July 2020, the primary task undertaken by the Services Australia Bundaberg Service Centre was the processing of Medicare enrolments (R3 [7]). These could be Medicare enrolments from anywhere in Australia.
To ensure that Medicare enrolments were accurate, all data entry processing would be checked by another team member, as part of what is termed quality of line (‘QOL’) checking. In the event the QOL checker detected any errors, these would be communicated, as ‘feedback’ to the staff member who had been responsible for the initial data entry.
Between 1 July 2020 and 17 July 2020, QOL checking on initial Medicare enrolment data entry performed by Mr Webber identified that only 51.35% of the data had been entered correctly (R3, [10], KC-1).
On 29 July 2020, Mr Webber’s immediate supervisor, a Ms Kylie Coros, provided Mr Webber with QOL feedback. As part of that, Ms Coros informed Mr Webber of the accuracy rate that had been detected.
Immediately after their conversation, Ms Coros also e-mailed Mr Webber, requesting that he complete the ‘QOL feedback sheet’ (R3, [11], KC-2). Mr Webber completed the feedback sheet, requesting that the errors be “notted” (recorded as ‘not finalised’), in order that he could correct the errors himself. It is implicit that Mr Webber agrees that there had been errors in the data that he had entered.
Mr Webber is a motorcycle enthusiast, who commuted to work on his Harley Davidson. This is a large, heavy motorcycle.
At the end of the working day on 29 July 2020 Mr Webber was travelling home on his Harley Davidson, when it ran out of fuel. As luck would have it, this occurred when Mr Webber was only approximately 15 metres away from the driveway of a petrol station. Even so, Mr Webber was still required to push the motorbike uphill, and in heavy traffic. Mr Webber later described this as having been “the last straw” (T9.7, p. 63).
On 30 July 2020, Mr Webber commenced work at approximately 8.30am. At 9.11am, Mr Webber sent Ms Coros a Skype message, requesting that he be placed on “AP” (application processing work), which is not customer-facing, on the basis that he was “not feeling mentally well” (R3, [13]).
At about 9.30am, Ms Coros approached Mr Webber to discuss his earlier Skype message. At that point Mr Webber informed Ms Coros that he did not agree with the QOL checking of all Medicare enrolment data (a reference to their conversation the prior day), because he did not consider it to be “good for customers”. Although Ms Coros offered Mr Webber alternate work that did not entail similar accuracy checking to Medicare enrolments, Mr Webber declined Ms Coros’ offer to be assigned to other tasks. Mr Webber informed Ms Coros that his “head was not in the right space, at present”, and hence the reason for his request to move to other, non-customer-facing work. Ms Coros then took steps to accommodate Mr Webber’s request, and she arranged for Mr Webber to move to another ‘back office’ workstation, as soon as he had completed the task that he was still midway through (R3, [18]).
At around 9.45am, Mr Webber again approached Ms Coros, and said that he did not wish for his earlier comments to her regarding the QOL checking process to now become something that was “bigger than Ben Hur”, and that he did not want to be “pulled into an office” about it. Ms Coros responded by indicating that it was perfectly acceptable for she and Mr Webber to disagree on work processes (R3 [24]).
At 10.18am, Ms Coros sent Mr Webber another Skype message, confirming the change to his work schedule to reflect that he was now assigned to back-office processing work. However, Mr Webber came and saw Ms Coros again, and this time informed that he was “going home”, on the basis of his “not feeling well”. When told this, Ms Coros asked Mr Webber to wait in the Citizenship Room, while she first located Mr Webber’s team leader, a Ms Carol Whiting (R3, [25]).
Carol Whiting then met with Mr Webber in the Citizenship Room, at about 10.20am. Mr Webber informed Ms Whiting that he had been experiencing feelings of stress, after he was told about his QOL results on 29 July 2020, and that he felt that the QOL checks were too pedantic (R4, [19]). Mr Webber also told Ms Whiting that he had experienced a traumatic incident the prior evening, when his motorcycle had run out of fuel, and he had been forced to push it, into a petrol station. In response, Ms Whiting asked Mr Webber why he had not telephoned his family for assistance in those circumstances. Mr Webber replied that he “had a complicated home life”, such that he felt that he really could not be asking his family for any help (R4, [20]). Mr Webber also told Ms Whiting that he usually took medication for anxiety each morning, yet had forgotten to take the medication that morning, and the build-up of stress and anxiety, coupled with the fact that he had realised he had forgotten to take his medication, had now impacted on his mental health. Mr Webber told Ms Whiting that, in all the circumstances, he would like to go home, and make arrangements to see his doctor (R4, [21]).
Mr Webber commenced personal leave from 10.30am on 30 July 2020 (R16).
On 31 July 2020, Mr Webber consulted with his general practitioner, a Dr Brendan Kaufman at the Linden Medical Centre, Barolin Street, Bundaberg. Dr Kaufman’s clinical note of that consultation (R9 p.31) records the following:
Works at Centrelink
feeling stressed,
anxiety,
brain felt cloudy at work
low mood
motorbike broke down a couple of days ago
no suicidal thoughts
Recent stressors came to a head on Wed (ie: 29 July 2020),
Felt foggy couldn’t think at work
Sleeping okay
Appetite okay
Reason for visit: Depression
Mr Webber next saw Dr Kaufman on 10 August 2020. On that occasion, Dr Kaufman’s clinical notes (R9, p. 32) record:
feeling better after a few days off work;
work has organised for him to see a psychologist later this week on Wed.
sounds like work has been supportive.
Not ready to go back yet
Son has b/g depression at home
On 18 August 2020 Mr Webber returned to work, and he apologised to Ms Coros regarding his behaviour during their interaction on 30 July 2020 (R3, [28]).
On 21 August 2020 Mr Webber was approached by the Bundaberg Service Centre Manager, Mr Scott Wilschutt, who wished to enquire regarding his welfare. Mr Webber then told Mr Wilschutt (T18.1, pp. 157-158) the following:
He was feeling much better and was fully fit for duty
He did not require any adjustments at work, other than no face-to-face(customer) contact
His son was suffering from mental health issues, and had been deteriorating for some time
His son’s mental health issues were similar to his own;
His son’s condition was quite serious, yet his son was finally commencing treatment; and
His own mental health condition had been significantly adversely impacted by his son’s condition, initial lack of treatment, and what had happened, because of this.
Between 18 August 2020 and 12 November 2020 Mr Webber took the following further periods of leave:
14 September 2020: ‘Flex’ leave;
5 – 16 October 2020: Annual Leave;
29 October 2020: Personal Leave, due to illness;
30 October – 3 November 2020: Annual Leave;
4 – 6 November 2020: Compassionate Leave, because of a death in the family;
9 – 12 November 2020: Annual Leave.
Mr Webber has not returned to work since 28 October 2020.
Applicable Legislation:
Section 14(1) of the Safety Rehabilitation and Compensation Act 1988 (‘the SRC Act’) provides:
Compensation for injuries
(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.
Section 5A of the SRC Act provides the definition of “injury”:
Definition of injury
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(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; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the SRC Act provides a definition of the term “disease”, as used in s.5A(1):
"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.
The definitions in s.4 of the SRC Act define “ailment” asmeaning:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Issues for Determination:
In light of the legislative provisions, as excerpted, the issues for determination on the hearing of this application for review become:
(a)Whether Mr Webber has suffered an “ailment” and/or an “aggravation” of an ailment as defined under s.4(1) of the SRC Act
(b)If so, whether the Applicant has suffered a “disease” for the purposes of s.5B(1) of the SRC Act.
(c)If so, whether liability for the claimed condition is excluded under s.5A(1) of the SRC Act, by reason of “reasonable administrative action taken in a reasonable manner in respect of Mr Webber’s employment”.
Applicant’s Contentions:
Mr Webber contends that his condition is compensable under the SRC Act. That contention is predicated on a medical opinion obtained by Mr Webber’s solicitors from Dr Axel Estensen, consultant psychiatrist.
In a report dated 16 November 2022, Dr Estensen opined as follows:
“Mr Webber has an Adjustment Disorder with mixed anxiety and depressed mood (chronic). This condition best described his mix of depressive and anxiety symptoms. The condition had its onset across the first part of 2020, secondary to the significant workplace stressors the client experienced due to the coronavirus pandemic.
As an employee of Services Australia, Mr Webber was required to be involved in providing a diverse range of benefits and programs which were being implemented as part of the Australian government’s coronavirus pandemic response. Many of the programs were new, with the client and his colleagues were unfamiliar with them. The amount of training Mr Webber received was often limited, and the volume of work was very large, with the client at times working six days per week.
The coronavirus pandemic restrictions led to a huge number of workers applying for various benefits, with many people financially stressed and in distress. Consequently, Mr Webber’s interaction with many clients of his employer was tense and, at times, acrimonious and abusive.
Understandably, Mr Webber initially experienced anxiety and then depressive symptoms during this period. No significant contemporaneous stressors were noted…/
…It would be correct to say that, but for the work stressors [Mr Webber] was exposed to from early 2020 in November 2020, he would not have developed the Adjustment Disorder he now has.
The rationale for this statement is as follows:
Mr Webber has consistently reported experiencing an elevated level of anxiety and depressive symptoms commencing in March 2020 secondary to workplace stressors relating to the extremely high workload that Services Australia experienced in the early stage of the coronavirus pandemic. At this examination, the clients account of the deterioration in his mental state was consistent, with his workplace stress or is being the cause.
The contemporaneous records indicate that Mr Webber reported the effect of his work environment on his mental state when assessed in October 2020. The Early Intervention Assessment Report of Ms Thompson documents the client’s account. The opinion of his employer was also recorded as, “Mr Wilschut (employer) indicated that face to face front of house service can be demanding of workers, highlighting the benefit of the rotation slower back office role.” Significantly when away from work, Mr Webber’s insomnia improved but deteriorated once he returned to the workplace, supporting a causal relationship between this psychiatric symptom and his workplace stressors.
The serial medical certificates of Mr Webber’s general practitioner and the second half of 2020 further support that his workplace was a significant stress or, as Dr Kaufman (general practitioner) repeatedly requested that Mr Webber work in a back office role. This request reflects that the client’s normal duties had been detrimental to his mental state”
…/
There is no evidence to support the view that Mr Webber had a diagnosable psychiatric disorder pre-2020. (A1, pp. 20 – 22).
Mr Webber now contends that he sustained a “disease” within the meaning of s.5B of the SRC Act, and that his workload at Services Australia from March 2020 onwards significantly contributed to that condition.
Mr Webber further contends that the increased workload is not a factor that falls within the exclusionary concept of ‘reasonable administrative action taken in a reasonable manner in respect of his employment’; and submits that the conversations held between himself and Ms Coros on 29 & 30 July 2020 in relation to the QOL checking do not fall within the “administrative action” exception.[1]
[1] Applicant’s final submissions (9 June 2023), paragraphs [66] – [72].
Respondent’s Contentions:
Contrary to the position now expressed on behalf Mr Webber, the Respondent contends:
(a)Mr Webber was already suffering from an aggravation of a pre-existing, non-work-related anxiety/depression condition, prior to 29 July 2020 and this was not contributed to (at least not in any significant degree) by the coincidental fact of Mr Webber’s employment;
(b)In the alternate, from about 30 July 2020, Mr Webber experienced an aggravation of his pre-existing ailment, which was not contributed towards in any significant degree by Mr Webber’s employment, such as not to qualify as a “disease” for purposes of the SRC Act; and
(c)In the event that the Tribunal were to find that Mr Webber‘s condition qualifies as a “disease” for purposes of the SRC Act, it remains non-compensable, because it was suffered as a result of reasonable administrative action, taken in a reasonable manner in respect of Mr Webber’s employment.
Medical Evidence:
In addition to the evidence received before the Tribunal from Dr Axel Estensen, the Tribunal received expert evidence from two other consultant psychiatrists:
-Associate Professor Dr Shashjit Varma; and
-Dr Prabal Kar.
Associate Professor Shashjit Varma:
Dr Varma has provided three (3) reports: dated 24 December 2020; 4 February 2022; and 14 December 2022.
In his first report (that dated 24 December 2020) (T12), Dr Varma indicates that he saw Mr Webber by means of a tele-health assessment conducted on 8 December 2020. In the aftermath of that consultation Dr Varma reported as follows:
…On 30 July 2020 he said his mind went cloudy. He had a sore chest. He was thrown in different jobs a day before. He did not elaborate on any clear incident, but he said at his desk ‘something was checked’ which stressed him quite a lot. On the way home he said his motorcycle broke down which was the last straw. He thought that he would get better and continue to work but that did not happen. He took some time off through his general practitioner for six weeks and then return to work and tried to get ‘back on speed’ but his mental condition deteriorated. He continued to deteriorate. He suffered from anxiety, depression and finally he put in a workers compensation claim on 9 November 2020.
Mr Webber did not indicate any specific events occurring at the workplace. He was provided feedback by his team leader Kylie Coros regarding errors he had input when processing customer Medicare claims around this time frame. All staff Medicare work were being 100% quality checked. Mr Webber’s accuracy rate was 51.35% for the settlement period two. Mr Webber mentioned that he was learning the Medicare role in his work was being 100% checked which he was not liking. He said he started to have ‘zaps’ in his brain that was due to the fast-paced nature of the Services Australia role, which is a trigger for the onset of the symptoms. He said while talking to the team leader his feeling went ‘out of whack’ and he said that he was probably talking abruptly to the team leader.
He saw his general practitioner Dr Brendan Kaufman, who provided a medical certificate dated 12 November 2020 with a diagnosis of anxiety and depression. He was not able to concentrate. He said he was not able to deal with clients. He had big mood swings and was suffering from anxiety and depression.[2]
[2] T12, p.92.
Doctor Varma noted Mr Webber to have a history of anxiety and depression, “due to personal events around 15 years back and he was put on Zoloft initially 50mg per day then around 10 years it was increased to 100mg. That has continued until now. He was able to manage well with 100mg and was able to do his job”.[3] Dr Varma also noted that Mr Webber’s mother had suffered from anxiety disorder, yet otherwise reported there to be no family history of any psychological problems.
[3] T12, p.93.
On the basis of his telehealth examination of Mr Webber, and his initial review of the provided documents, Dr Varma opined that Mr Webber had suffered an Adjustment Disorder with mixed anxiety and depression, secondary to alleged work-related stress, and that this was an aggravation of his pre-existing psychiatric condition.[4] Dr Varma felt that the precipitating event seemed to be the discussion held on 30 July 2020 between Mr Webber and his supervisor Ms Coros regarding the QOL checking.[5] Dr Varma described this meeting as a significant contributory factor towards the fact of Mr Webber’s diagnosed condition, “after which he went home and then his motorbike broke down which also complicated the matter and according to him that was the last straw. It is a fact that he also suffered from anxiety and depression for which he was on Zoloft continuously for the last 15 years”.[6]
[4] T12, p.95.
[5] T12, p.95.
[6] T12, p. 96.
When asked whether there were any other factors that might be having a significant impact on Mr Webber’s current clinical presentation, Dr Varma opined that the “other factors which are impacting on his mental health was a pre-existing anxiety and depression for which he is receiving Zoloft for a long period of time and his motorbike breaking down”.[7]
[7] T12, p. 96
Dr Varma was subsequently requested by the solicitors acting for the Respondent to provide a supplementary report on Mr Webber’s condition, after they had obtained Mr Webber’s medical records in response to summons; and in order for Dr Varma to comment on a medico-legal report that had, by now, also been obtained from Dr Prabal Kar, who had proffered a somewhat different diagnosis to that given by Dr Varma on 24 December 2020. Dr Varma’s first supplementary report is now dated 4 February 2022 (R6).
In his first supplementary report, Dr Varma notes that Mr Webber had been prescribed Valium (an anxiety medication) on 11 July 2002, and that his general practitioner had made a clinical note on 24 July 2002 of Mr Webber suffering from anxiety, and that Mr Webber had told his Doctor on 14 October 2002 that he continues to suffer from anxiety and was looking for alternative employment with other government departments. Dr Varma also noted references in Mr Webber’s medical records to a nervous breakdown in September 2003; and that on 11 March 2004 Mr Webber had been prescribed sertraline (Zoloft) which had then continued to be prescribed to Mr Webber up until 23 March 2021 ‘that is almost 17 years and his general practitioner noted that he was suffering from depression. This is in contrast to Mr Webber’s statement where he says that he did not have any stress, anxiety tablets prior to 14 March 2005’;[8] and that Mr Webber had a further breakdown in 2012, and that the clinical note recorded by Mr Webber’s general practitioner at that time had indicated that “there were a lot of stressors at home and his wife was not coping due to an incident that occurred three years ago”.[9]
[8] R6, p. 2.
[9] R6, p.2.
Dr Varma further noted that Mr Webber had reported anxiety-related vertigo to his general practitioner on 20 February 2014; and that in early 2020 Mr Webber’s son who had been studying in Brisbane yet had been brought home to Bundaberg because he was not coping, and had been admitted to a mental health unit for depression. Mr Webber was also noted by Doctor Varma to have been on carer’s leave from 4 February 2020 until 20 February 2020, and then on annual leave and long service leave in March and June 2020, even before the QOL feedback received from Ms Coros, and the motorcycle breaking down on 29 July 2020 (‘the new information’).
In light of the new information, Dr Varma opined that Mr Webber suffers from an Adjustment Disorder, with mixed anxiety and depression, which were an aggravation of his pre-existing psychiatric condition.[10]
[10] R6, p. 3.
When asked to respond to Dr Prabal Kar having differently diagnosed Mr Webber as suffering from Major Depressive Disorder, which Dr Kar also considered to be unrelated to employment, Dr Varma opined as follows:
I believe my diagnosis is similar to Dr Prabal Kar, [we] both agree that Mr Webber suffers from depression, which is an aggravation of his pre-existing psychiatric condition. Dr Kar’s diagnosis as a second episode of depressive disorder and my diagnosis that it is an aggravation of the pre-existing depression. The difference of opinion is that my diagnosis is that he has suffered from adjustment disorder with mixed anxiety and depression and Dr Kar has diagnosed it as major depressive disorder.
Dr Kar has said that his major depressive disorder is not work-related and I believe it was secondary to alleged work-related stress, which has been disputed with the reports. I would agree on this point with Dr Kar that his adjustment disorder with anxiety and depression is not work-related.[11]
[11] R6, p. 4, emphasis included.
Dr Varma also said:
“Mr Webber has a genetic predisposition to depression. His mother suffered from depression and thus was predisposed to depression. He also had some family issues going on. He had a past history of anxiety in 2002. He had a lot of stressors at home, in 2012, where his wife was not coping due to an accident that occurred three years prior. Also, his failure to take medication on 30 July 2020. All these factors were contributing to him suffering from anxiety and depression on or around 30 July 2020.[12]
[12] R6, p. 4
When asked to provide an opinion regarding the relative causal contribution of employment and non-employment factors to Mr Webber’s condition, Dr Varma opined that Mr Webber’s presenting condition when he had seen him in their telehealth consultation on 8 December 2020 had been caused by a mixture of: (a), Mr Webber’s genetic predisposition towards suffering from conditions such as depression; (b), various non-employment stressors; as well as (c), employment factors. In terms of their relative contribution, Dr Varma opined that Mr Webber’s genetic predisposition was a ‘material yet minor’ contributing factor; the incident with his motor cycle, difficulties caused by his son’s mental health, and his complicated home life circumstances were ‘significant’ contributors, and that ‘employment factors’ (specifically processing Medicare enrolments, QOL feedback and the conversations with Ms Coros on 30 July 2020) was a ‘material’[13] yet ‘very small’[14] contributing factor towards Mr Webber’s overall diagnosis.
[13] R6, p. 5
[14] R6, p.6.
Dr Varma also expressed the following:
“Even if one [were to] assume that Mr Webber did not receive feedback on errors he made processing Medicare enrolments, I believe Mr Webber was still suffering the condition or was suffering from aggravation of his long-term psychiatric condition of depression and anxiety due to other personal and family factors. As he was already going through stress, some of the employment factors did make a difference and worsened his mental condition, but that is clearly because he was already in a heightened state of anxiety and depression and was feeling stressed”.
…/
“I do believe that Mr Webber would have suffered the ailment irrespective of the employment factors.”[15]
[15] R6, p.6.
A further supplementary report was then obtained from Dr Varma, this time in light of the Respondent having by now obtained access to further medical treatment records for Mr Webber and also in order that Dr Varma could be given an opportunity to respond to the contrary report obtained by Mr Webber’s solicitors from Dr Axel Estensen. Dr Varma’s further supplementary report is now dated 14 December 2022 (R7).
In preparation for the further supplementary report dated 14 December 2022 (R7), Dr Varma had been briefed with a copy of Dr Estenson’s contrary opinion, and was asked to comment. In response, Dr Varma indicated that he ‘holds a different opinion’ to that expressed by Dr Estenson:
“…because I believe that Mr Webber was already undergoing anxiety and depression due to personal factors, family issues including his son going to hospital, and him becoming non-compliant with taking medication in or around July 2020. Therefore, I believe that he was already going through anxiety and depression which was pre-existing and not related to work, so he would have developed adjustment disorder anyway”.[16]
[16] R7, P. 2.
Dr Varma also indicated that the further enclosed material from Mr Webber’s medical history did not cause Dr Varma to feel any need to alter his opinion; and that the further material “..has reinforced my opinion that this was an adjustment disorder with mixed anxiety and depression which was a worsening of his pre-existing psychiatric condition. Dr Estenson states that there is no evidence of pre-existing condition which is quite different from my opinion where there is a definite history of pre-existing psychiatric condition, even mentioned in Dr Natasha Laukens’ report”.[17]
[17] R7, p. 3.
Dr Prabal Kar
Dr Prabal Kar (consultant psychiatrist) has also provided a medico-legal opinion regarding Mr Webber’s condition, now expressed in a report dated 8 March 2021 (S18).
Dr Kar saw Mr Webber for these purposes on 8 March 2021, also by means of a tele-health consultation, and Dr Kar notes that Mr Webber had said during that consultation that on 23 July 2020 he had experienced chest pains at work, yet had ignored these, and carried on. Mr Webber also told Dr Kar that he had ceased work on 30 July 2020 after his mind had gone foggy. Doctor Kar was also told by Mr Webber during the telehealth consultation that on 30 July 2020 at about 9am Mr Webber had told his supervisor “I was having mental issues and that I needed to go to the back offices”. Mr Webber said that he had “cloudiness and couldn’t think straight, my mind goes blank”, and “can’t think properly”.
Dr Prabal Kar noted in his report that Mr Webber had been on Zoloft for 15 years, up until 30 July 2022, and that Mr Webber had been taking 50mg of Zoloft from 2005 until 2012, when it had been increased to 100mg. Dr Prabal Kar also noted that Mr Webber had told him that his mother had anxiety and depression; that he lives at home with his wife of 28 years who ‘has some medical issues’; as well as with an adult son, who suffers from depression which had caused him to need to cease his studies in Brisbane.
Dr Kar opined that Mr Webber had become aware on 30 July 2020 of his having symptoms, which Dr Kar opined were consistent with Mr Webber suffering from Major Depressive Disorder. In Dr Kar’s opinion this episode of Major Depressive Disorder did not commence on 30 July 2020 because it is a condition with an insidious onset. Doctor Kar expressed the matter in these terms:
In my opinion, Mr Webber has had an episode of a Major Depressive Disorder. Mr Webber had a past psychiatric history. In 2005 when he had an episode and was placed on antidepressants. He had continued antidepressants from 2005 onwards. He also had strong genetic risk factors for depressive illness. I do not consider Mr Webber’s Major Depressive Disorder to be work-related. Major Depressive Disorder is the commonest serious mental illness. It occurs with a high prevalence in the normal population.
…. Mr Webber was at a higher risk than the average person without a family history without the past psychiatric history. Mr Webber had two first-degree relatives; his mother who had anxiety and depression symptoms, and his son who has experienced severe depression and was admitted in a psychiatric hospital. His son has been unable to return to his studies for two years. His son’s mental health condition is also a significant stressor for Mr Webber. Another non-work stressor is his wife’s medical health issues.
Antidepressants, as were given to Mr Webber for 15 years, have therapeutic effects and prophylactic effects. The therapeutic effect is the acute treatment for a depressive episode. Antidepressants are generally very effective. They assist in resolution of symptoms when given at the appropriate dose for an appropriate trial. Often, antidepressants are continued for prophylaxis to prevent recurrence of depressive episodes.
Everyone has a high risk of developing a major depressive disorder, as it is the commonest serious mental illness. However, those who have already had an episode are at significantly higher risk than the general population who have never had a previous episode. Those who have close relatives with depression are at additional risk.
A recurrence or relapse of Major Depressive Disorder can occur even if antidepressant medications are taken regularly. Antidepressants have a prophylactic role but the effect is not absolute. A person without prophylactic antidepressants may have more frequent episodes, have more severe disability and a longer episode duration and more severe symptoms during an episode. On prophylactic antidepressants the duration and severity is reduced, and the inter-episode interval is increased, but there is no guarantee that it will prevent all future episodes. Breakthrough episodes can still occur. It appears in this case that despite being on an effective prophylactic treatment with Zoloft for many years, Mr Webber had a breakthrough of his depression in 2020.[18]
…/
I have read the report by the independent psychiatrist, A/Prof Shashjit Varma, dated 24 December 2020. Dr Varma diagnosed him with an Adjustment Disorder with mixed anxiety and depression, secondary to alleged work-related stress. M not in agreement with the diagnosis. In my opinion, the diagnosis of an adjustment disorder cannot be made as Mr Webber has a Major Depressive Disorder, a condition for which he was at risk.
The textbook Companion to Psychiatric Studies (8th Edition), by Kendell & Zealley, in the chapter ‘Adjustment Disorders’ - An Adjustment Disorder is any distressing and disabling response to a stressful life event or series of events which fails to meet diagnostic criteria for another psychiatric syndrome”. If, exposure to a stressful event, a subject’s psychological or behavioural reactions meet diagnostic criteria for any other psychiatric disorder, that is the diagnosis, rather than Adjustment Disorder”.
I am not in agreement that Mr Webber has an aggravation of a pre-existing psychiatric condition. I believe Mr Webber has had a recurrence of a Major Depressive Disorder, of which he was at high risk than the general population.[19]
[18] S18, pp. 7-8
[19] S18, p. 10.
Tribunal’s assessment of the medical evidence:
Because of the divergence in the opinions expressed by each of Doctors Estensen, Varma and Kar, it becomes necessary for the Tribunal to make some determination regarding their evidence.
The Tribunal is not persuaded that any reliance can be reposed in the opinion now expressed by Dr Estensen, on the basis that it becomes clear that Dr Estensen was not provided with relevant information regarding Mr Webber’s prior medical history that was necessary to inform the basis of his opinion. Most notably in this regard, Dr Estensen was briefed with only a portion of the Applicant’s relevant medical records, commencing from 31 July 2020,[20] thus resulting in his expressing a misplaced conclusion - which has obviously become foundational to his ultimate opinion - that “there is no evidence to support the view that Mr Webber had a diagnosable psychiatric disorder pre-2020”.[21]
[20] A1, p. 3.
[21] A1, p. 22.
In the absence of any medical records pertaining to Mr Webber from prior to 31 July 2020, Mr Webber had informed Dr Estensen that he had experienced two prior escalations in anxiety caused by work in 2005 and 2012, yet had ‘recovered from these within about two weeks’. Dr Estensen has seemingly accepted that information at face value, and had not been placed in a position to be able to properly gauge that assertion by his having the prior medical history for longitudinal corroboration.
It also becomes clear from what has been reported by Dr Estensen in his report dated 16 November 2022 that no information was provided by Mr Webber to Dr Estensen during their consultation in relation to any other, non-work stressors. It is likely therefore that this had the effect of leading Dr Estensen towards an over-estimation of the contribution of employment as a causal factor for Mr Webber’s diagnosed condition.[22]
[22] Mitchell and Comcare [2021] AATA 3376 at [56].
It is of significance to again observe that Mr Webber had commenced taking Zoloft 50mg in March 2004 (R9, p.9); that this was subsequently increased to 100mg in 2005 (R9, p10) before being reduced again to 50mg in 2007 (R9, p.12); before again being increased to 100mg in 2012, and in a context in which Mr Webber’s GP had diagnosed depression (R9, p. 61) and was recommending that Mr Webber start seeing a psychologist, with the GP having recorded “a lot of stressors at home - wife not coping due to accident three years ago”. Zoloft 100mg then continued to be prescribed for Mr Webber by his general practitioner from 2012 until 2020, with a new prescription for same having been requested by Mr Webber as recently as 6 May 2020 (R9, p. 31), a date that is relatively proximate to the work events now under examination by the Tribunal. Seemingly however, none of this was known to Dr Estensen at the time of preparing his original opinion. Although these matters were subsequently put to Dr Estensen, during his cross-examination,[23] his responses revealed that the diagnosis was based specifically on Mr Webber’s account at the time of their consultation, and the very limited medical records that had been available to Dr Estensen at the time. The Tribunal considers that Dr Estensen “doubled down” on his opinion and was not prepared to concede any ground in relation to his diagnosis, when in all the circumstances to do so was warranted. In light of the matters recorded in Mr Webber’s general practitioner records, the Tribunal is unable to accept Dr Estensen’s opinion that there is no evidence to support the view that Mr Webber had a diagnosable psychiatric disorder pre-2020.[24]
[23] Transcript, p, 132-133 commencing at line 15.
[24] A1, p. 22.
Doctor Varma had initially opined that Mr Webber suffered an aggravation of his pre-existing psychiatric condition in the form of an adjustment disorder with mixed anxiety and depression, precipitated by Mr Webber’s discussion with Ms Coros regarding QOL checking, which was described as a significant contributory factor, “then his motorbike broke down which also complicated the matter and according to him that was the last straw”.
After being furnished with Mr Webber’s medical records, as well as a copy of Dr Kar’s contrary medical opinion, on 4 February 2022 (R6, p. 4-7) Dr Varma opined that Mr Webber suffers from an Adjustment Disorder with mixed anxiety and depression, which he still regarded to be an aggravation of Mr Webber’s prior depression, rather than a second episode of major depressive disorder as had been diagnosed by Dr Kar, and that the contribution of any work-related factors was “very small”, and in circumstances wherein a normally healthy person would have coped with the work-related stressors reported by Mr Webber, yet which Mr Webber found more difficult, because of his pre-existing psychiatric condition, genetic pre-disposition, and parallel family stressors.
Meanwhile Doctor Kar considers that Mr Webber sustained a recurrence of endogenous Major Depressive Disorder, which was not work-related.
Doctor Kar does not agree with Dr Varma’s diagnosis on what might well now be termed as ‘textbook’ grounds, given that a diagnosis of Adjustment Disorder is intended as a default diagnosis, that should not be ascribed to a constellation of psychological or behavioural reactions, if these meet the diagnostic criteria for any other psychiatric disorder.
In the end however, it becomes ultimately unnecessary for the Tribunal to specifically choose between the different diagnoses provided by each of Doctors Varma, and Prabal. Both have, at least, determined that Mr Webber was suffering from a pre-existing psychiatric ailment; one characterised by symptoms of depression and anxiety, and no matter the label ultimately assigned to that condition. The essential question for the Tribunal really becomes: the extent to which the pre-existing ailment (howsoever described) was aggravated on 29 and/or 30 July (T4, T7.1).
On the basis of Dr Kar’s opinion, Mr Webber was suffering from another endogenous Major Depressive episode that was not work-related, and Mr Webber merely became aware of the symptoms same, whilst at work on 30 July 2020, with the condition not commencing on that day, given that Major Depression is a condition of insidious onset (R2, S18, p.54). In simple terms, Dr Kar may be taken as stating that employment circumstances have not given rise to any aggravation of Mr Webber’s pre-existing condition.
However, the Tribunal considers that Dr Kar’s position unduly discounts the role of the interaction between Mr Webber and Ms Coros, and the role of the QOL checking on Mr Webber as a feature of Mr Webber having decompensated on 30 July 2020. On the facts as known to the Tribunal, and as recorded in Dr Kaufman’s clinical notes on 31 July 2020, these events must be afforded at least some contributory role in Mr Webber’s decompensation, given their proximity to Mr Webber leaving work and then seeking medical assistance from Dr Kaufman on 31 July 2020.
Ultimately (and putting to one side the question of the precise diagnostic label), the Tribunal prefers the evidence of Dr Varma, who in his report dated 4 February 2022 (R6, pp. 4-7) determined that non-employment stressors including the incident involving Mr Webber’s motorcycle breaking down, his son’s mental health issues and complicated home life circumstances contributed in a significant degree to the diagnosed condition, and that employment factors on 29 and 30 July 2020 (ie: the QOL checking, and the interactions with Ms Coros), although still material, made only a very small contribution.
For purposes of s.5B of the SRC Act, a ‘very small’ contribution made by employment factors to an aggravation of Mr Webber’s pre-existing psychiatric condition does not met the threshold of that aggravation having been contributed towards in any significant degree, such as not to now qualify as a ‘disease’ for purposes of s.5A(1)(a) of the SRC Act. In that light, Mr Webber’s condition is not a compensable “injury” for purposes of s.14(1) of the SRC Act.
Although the conclusion expressed by the Tribunal in the immediately preceding paragraph is determinative of this application for review, for completeness, the Tribunal proceeds to consider arguments regarding reasonable administrative action.
In Comcare v Martin (2016) 258 CLR 467 the High Court said:
[45] …. An employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employees ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.
…/
[47] …. what is required to meet the causal connection connoted by the exclusionary phrase in s.5A(1) in its application to our disease within s.5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s.5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.
Mr Webber submits[25] that the interactions between himself and Ms Coros on 29 and 30 July 2020 do not fall within the definition of administrative action, such that s.5A(2) of the SRC Act is inapplicable. The Tribunal does not accept that to be the case, noting that reasonable administrative action taken in a reasonable manner in respect of the employee’s employment is taken to include: s.5A(2)(a), “a reasonable appraisal of the employee’s performance” and s.5A(2)(e), “anything reasonable done in connection with an action mentioned in paragraph (a), (b) (c) or (d)”.
[25] Final submissions, 9 June 2023, paragraphs [67] – [72].
The Tribunal considers that the QOL checking process itself, and the subsequent feedback given to Mr Webber by Ms Coros regarding Mr Webber’s data entry are matters that are readily encapsulated within each of s.5A(2)(a), & s.5A(2)(e) of the SRC Act.
In the Tribunal’s view there is nothing objectively unreasonable about Services Australia having mandated a requirement that 100% of Medicare enrolment data be subsequently checked, by another staff member, after initial data entry as part of the QOL process.
Furthermore, in his report dated 4 February 2022 (R5, p.6) Dr Varma opined that:
“Even if one were to assume that Mr Webber did not receive feedback on errors he made processing Medicare enrolments, I believe that Mr Webber was still suffering the condition or was suffering from aggravation of his long-term psychiatric condition of depression and anxiety due to other personal and family factors. As he was already going through stress, some of the employment factors did make a difference and worsened his mental condition, but that is clearly because he was already in a heightened state of anxiety and depression and was feeling stressed.
I do believe that Mr Webber would have suffered the ailment irrespective of the employment factors. However the employment factors did affect him because he was already in a state of stress, anxiety and not coping which was making his head “cloudy”, due to which he was not even coping with the day-to-day functioning of employment. In other words, if there was no pre-existing psychiatric condition, a normally mentally healthy person would have coped with the work-related stress, which he is mentioning.”
To the very small extent that Mr Webber’s injury may have been ‘caused by’ events at work on 29 and 30 July 2020 it is non-compensable, by reason of it having been caused by reasonable administrative action taken in a reasonable manner in respect of the employee's employment. Ultimately however the reasonable administrative action exception does not apply by reason that any contribution to the occurrence of Mr Webber’s injury (in the form of a disease) by that administrative action was not contributed towards in any significant degree by his employment at Services Australia.
DECISION
The decision of Comcare made on 26 March 2021 is affirmed.
I certify that the preceding 87 (eighty seven) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams
..[sgn]......................................................................
Associate
Dated: 4 December 2023
Date of hearing: 9 - 12 May 2023 Applicant: Mr David Webber Counsel for the Applicant: Ms Jessica Hodge Solicitors for the Applicant: Hall Payne Lawyers Counsel for the Respondent: Ms Sarah Wright Solicitors for the Applicant: Australian Government Solicitor
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