Weyman and Comcare
[2000] AATA 430
•2 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 430
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1112
GENERAL ADMINISTRATIVE DIVISION )
Re CAMILLA WEYMAN
Applicant
And COMCARE
Respondent
DECISION
Tribunal Deputy President A M Blow OAM, QC., Dr M E C Thorpe (Member)
Date2 June 2000
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the following directions: (a) The applicant is suffering an adjustment disorder with mild recurrent depression, an anxiety state and phobic avoidance. (b) That disorder is an ailment that was aggravated in a material degree by the applicant's employment by the Commonwealth as a result of her tripping at work on 20 June 1991. (c) The respondent is liable to pay the applicant compensation in respect of aggravation pursuant to ss.16 and 19 of the Safety, Rehabilitation and Compensation Act 1988. (d) The amount of compensation payable to the applicant is to be determined by the respondent in accordance with the Tribunal's reasons for this decision.
The Tribunal makes the following orders as to costs: (e) The costs of these proceedings incurred by the applicant shall be paid by the respondent. (f) Unless one or both of the parties make submissions in writing to the contrary prior to 4 pm. on 6 June 2000, the provisions of the Tribunal's General Practice Direction dated 18 May 1998 are to apply in relation to the assessment of costs. (g) In the event of either party making such a submission prior to 4 pm. on 6 June 2000, a telephone directions hearing in relation to costs is to be held at 9.30am. on 7 June 2000.
[Sgd a M Blow]
Deputy President
CATCHWORDS
Compensation – psychiatric condition – aggravated by employment by Commonwealth.
REASONS FOR DECISION
2 June 2000 Deputy President A M Blow OAM, QC., Dr M E C Thorpe (Member)
This is an application for the review of a decision made by a delegate of the respondent on 10 July 1998 disallowing a claim by the applicant for compensation in respect of a condition which she described as "adjustment disorder with dysthymia".
The applicant has worked in the Australian Customs Service for many years. On 20 June 1991 she tripped over some telephone cords near her desk, fell to the floor, and hurt her left leg, particularly around the knee. By a claim form dated 26 August 1997, but apparently not received by Comcare until 15 September 1997, the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on the basis that her fall had contributed to a psychiatric condition described as above. A delegate of the respondent made a determination rejecting that claim on 17 February 1998. The reviewable decision of 10 July 1998 was made on a reconsideration of her claim.
The applicant was pregnant when she fell. She contends that her fall caused or aggravated a "psychiatric injury" best described as "adjustment disorder with depressive mood (dysthymic mood)". She contends that she has been incapacitated for work, at least to some degree, for most of the time since 6 February 1995, and that she is entitled to be compensated for expenses that she has incurred for psychiatric treatment. The respondent's case is that the applicant was suffering from a psychiatric disorder before her fall; that, at worst, that condition was temporarily aggravated to a minor degree as a result of the fall; that the fall did not contribute to the onset or lasting aggravation of the applicant's psychiatric disorder; and alternatively that the impact of any incapacity on the applicant's ability to work, or her ability to work a certain number of hours per week, has been overstated by the applicant.
The applicant demonstrated psychiatric symptoms as long ago as 1981, when she consulted a Dr. Hatfield, a psychiatrist at Bondi Junction, for anxiety symptoms associated with the practically simultaneous consumption of alcohol and Sudafed tablets while on a holiday. She said she became panicky and nauseous. He mother, who is a general practitioner and who gave evidence, said she had symptoms of tachycardia at that time, and was worried that something was happening to her heart.
According to Dr. Weyman's (i.e. the applicant's mother's) clinical notes, she referred the applicant to Prof. G. Andrews on 16 April 1984. Her clinical notes reveal nothing as to the circumstances of this referral, and she has little recollection of it. However we were informed by Dr. Lewin, a forensic psychiatrist who gave evidence for the respondent, that Prof. Andrews as then running a programme at St. Vincent's Hospital which was concerned with the treatment of patients with anxiety disorders. He said that patients were not accepted unless it was well established that they were suffering from anxiety disorders. His evidence as to Prof. Andrews' project was uncontradicted and convincing, and we accept it. We infer that the applicant must have been suffering from anxiety symptoms at the time of the 1984 referral.
On 16 July 1987, Dr. Weyman referred the applicant to another psychiatrist, Dr. Gluckstern. Dr. Weyman said in cross-examination that she thought the applicant probably had some sort of panic attack, both on this occasion and on the occasion of a later referral to Dr. Gluckstern.
In August 1987 Dr. Weyman again referred the applicant to Prof. Andrews, but he was absent on study leave, and she was seen at St. Vincent's Hospital by a Dr. Paul Friend, who was then a senior registrar. He reported to Dr. Weyman in the following terms:
"Clearly her agoraphobia has relapsed. I have made arrangements for her to be enrolled in a treatment group commencing in November."
The applicant attended a number of sessions of a treatment group, apparently as a result of the arrangements made by Dr. Friend. In her oral evidence, the applicant she said that she was pregnant at the time and wanted to avoid both anxiety problems during labour and post-natal depression. She said she thought she attended for a few days in a group of about ten people. Under cross-examination she accepted that what she attended was a ten-day programme for panic disorder patients. She claimed she did not have agoraphobia. It appears that the course was conducted at a place called Caritas Cottage. According to a document extracted from Dr. Weyman's clinical notes, Caritas Cottage was the site of the anxiety disorders clinic and the professorial unit in psychiatry in St. Vincent's Hospital, and its staff provided a specialised service for the assessment and treatment of a number of anxiety disorders including panic disorder and agoraphobia.
The applicant's first child was born on 25 February 1988. On 16 May 1988 her obstetrician, Dr. Szirt, gave her a certificate to the effect that she was suffering from post-natal depression and would be unfit for work for some two months. It appears that she remained absent from work until approximately November 1988. Amongst the exhibits tendered at the hearing was a certificate from a Dr. M. Terry stating that the applicant was unfit for work from 5 September 1988 up to and including 2 October 1988 as a result of a nervous condition.
Dr. Weyman referred the applicant to Dr. Gluckstern again on 24 April 1990 for what she described in her clinical notes as "anxiety effects". The applicant apparently told Dr. Ali, a psychiatrist who treated her for some years commencing in December 1994, that she saw Dr. Gluckstern in 1989, but we are not satisfied that she was referring to a different referral. We think it most likely she was referring to the referral in 1990. She told Dr. Ali that she had had six to seven visits to Dr. Gluckstern, and that her problem was fixed up with the use Anafronil without her taking any time off work. Under cross-examination she said that she had nervous problems in 1989, but not 1990. We think she must have made a mistake about that. He sick leave records show she had four days off in late July 1990 for treatment of an anxiety state.
The applicant's second child was conceived in about March 1991 and born, about 4 weeks prematurely, on 27 November 1991. In June 1991 she was working in the Australian Customs Service's Adjustment Section at Link Road, Mascot. On 19 June 1991 she tripped three times over telephone leads. The following day she tripped twice over telephone leads. As we have said, on one of those occasions she fell, hurting her left leg and knee. We accept that she was somewhat anxious before this fall. She had been anxious about her pregnancy, having previously suffered a miscarriage. She had been anxious about the inhalation of Avgas fumes in the course of her work, and their possible effect on her unborn child. We accept that she became more anxious after her fall because of fears for the safety of that child.
In July 1991 the applicant went on a family holiday to Cairns with her husband, their first child, and her parents. Dr. Weyman gave evidence that she had to go on the holiday to Cairns because the applicant would not go without her. Dr. Weyman said her husband went as well because he and she go everywhere together. She said the degree of the applicant's anxiety before their arrival in Cairns was abnormal, and that her fall appeared to be a big cause of her anxiety.
During the holiday in Cairns the applicant experienced some "spotting" of blood, apparently coming from her vagina. She became very concerned about the safety of her unborn child, particularly in relation to the effect that her fall at work might have had. Dr. Weyman gave evidence, which we accept, that the applicant wanted to go home because of fears of a miscarriage or premature labour resulting from the fall, and that she did not want to go anywhere on that holiday alone.
Dr. Weyman gave evidence that after returning from the holiday the applicant saw her obstetrician and became less worried. After the child was born, she was somewhat relieved that the baby had been born safely and that she was able to breast feed. However Dr. Weyman said that the applicant did not want to go out and see people socially after that, and that her social life stopped. She said she had previously had a large number of friends. She attributed the applicant's cessation of her social life to the fear of panic attacks. Although the child was born in November 1991, the applicant did not return to work until September 1994. Dr. Weyman said the applicant's fears of panic attacks continued throughout that period and that she was not prepared to go anywhere without her husband or all of the family. It appears that she used all available maternity leave, sick leave, annual leave and long service leave during the period that she was absent from work. In August 1991, another general practitioner, Dr. Lukaszewicz, gave her a medical certificate saying that she was unfit for work for one month due to left knee tenosynovitis. On 16 March 1992 her obstetrician, Dr. Szirt, gave her a medical certificate saying that she was unfit for work until 24 April 1992 because of "severe puerperal problems". In January 1993 the applicant applied for leave without pay on the basis that she needed to care for her baby and had difficulty finding childcare for her baby. She explained under cross-examination that she had done so because she understood leave without pay was unlikely to be granted on any other basis. We believe her.
She eventually returned to work only after being told that no further leave would be granted. She initially arranged to return to work on 18 November 1994, but actually returned in September 1994 so that she could apply for a redundancy package. She was not successful.
In November 1994 Dr. Weyman referred the applicant to Dr. Ali for the first time. The applicant saw Dr. Ali on many occasions between December 1994 and about August 1999, when he ceased to practise. Three reports by Dr. Ali are before us. He concluded that the applicant was suffering from an adjustment disorder with depressive mood, chronic in nature and best called dysthymic mood. He believed that the applicant's anxiety and panic were closely connected with the injury when she tripped in 1991.
In early 1995 the applicant commenced to work part-time on the recommendation of Dr. Ali. She resumed full-time work in December 1995, believing her condition had improved. Dr. Ali provided medication and relaxation therapy. The applicant contends, and the respondent disputes, that she was unable to work longer hours than she in fact worked in 1995. The applicant says that she used to be terrified and suffer from panic symptoms, as a result of travelling in traffic to and from work at that stage. Apparently in 1996 the applicant reduced her working hours to 9.30 am. to 3.30 pm., four days per week, because of panic problems associated with travelling to and from work. She resumed working full-time in October 1996, but took quite a lot of leave. In July or August 1997 Dr. Ali recommended that she resume part-time work. He issued a medical certificate with a view to her working reduced hours as from 26 August 1997. It was on that day, as we have said, that she lodged her claim for compensation. Thereafter she took a significant amount of sick leave in connection with her psychiatric condition. She worked part-time until June 1998, when she resumed working full-time. In May 1999 she began to have difficulties following the appointment of a new supervisor. After a confrontation with him in July 1999 she stopped work. She walked out in tears on 21 July 1999. She said she was a mess for at least a few weeks, and did not want to go back. As a result of psychiatric treatment, and arrangements for her to work in another section, she was able to return to full-time work on 17 December 1999. She has been working full-time ever since. She has not replaced her treating psychiatrist, Dr. Ali, since he ceased to practise.
Dr. Ali was served with a summons to give evidence at the hearing, but failed to attend. No explanation or apology was received. The applicant's counsel tendered two reports from another psychiatrist, Dr. Morse, and called him as a witness. His opinion, expressed in a report dated 24 March 2000, was that the applicant was suffering from "adjustment disorder with mild recurrent depression, anxiety state, and phobic avoidance with some features of agoraphobia". In that first report, he attributed the onset of the applicant's condition to her concern about the effects of Avgas and the added stress of her knee condition following the June 1991 fall. He was apparently unaware of the history of psychiatric difficulties extending back to 1991, and apparently did not perceive that the real significance of the fall at the time of the knee injury was that it heightened the applicant's anxiety for the safety of her unborn child. By the time he gave evidence, he had been acquainted with the applicant's full psychiatric history, and had come to appreciate the full significance of the fall of June 1991. His opinions as to the nature of the applicant's condition were essentially unchanged. He saw the applicant's ongoing concern as to the fate of her pregnancy for several months following the fall as having had a lasting effect on her mental state.
The respondent had the applicant examined by Dr. Lewin in January 1998 and October 1999. He wrote reports after each examination and they are before us. He was very thoroughly briefed. He believes the applicant is suffering from a condition known as panic disorder which has been complicated at times by secondary depressive symptoms. He believes this condition has no relationship with the applicant's work with the Australian Customs Service. He said that panic attacks occur randomly, and not as the result of environmental stressors, and that patients commonly associate attacks with unrelated events. He said they blame perceived stressors such as air travel, travelling in lifts, or being in the crowd in a market place, when such perceived stressors are never of any causal significance. He saw the applicant's psychiatric history from 1981 to 1991 as demonstrating a typical pattern of episodic panic symptoms. He was substantially unshaken in cross-examination. He conceded that the applicant might have suffered from a heightened level of anxiety as a result of irrational fears about of the effect of aviation fuel. He conceded that if a patient had a heightened background level of anxiety then the patient was more likely to have a panic attack. He stressed that such a patient's episodes of anxiety were of short duration. When asked whether there were other schools of thought in the psychiatric profession as to the significance of perceived stimuli, he said that his view was a mainline view, and not an idiosyncratic view.
Dr. Morse, by contrast, said that there were different schools of thought as to the significance of perceived precipitants. His evidence was that most psychiatrists believed in a vulnerability to precipitants. He said that the vast majority of panic attacks are precipitated by an event, perhaps 80% of them. He said that people who recover quickly after panic attacks are not seen by doctors or psychiatrists, but that he sees people who suffer from panic attacks recurrently, sometimes without precipitants.
To the extent that Dr. Morse's opinions conflict with those of Dr. Lewin, we accept the expert evidence of Dr. Morse, for four reasons. Firstly, we think it is of some significance that his views substantially coincide with those Dr. Ali. It is true that Dr. Ali's opinions should be given reduced weight because he did not attend for cross-examination. The fact that his evidence was unable to be tested probably weighs more heavily against the applicant than it would in many cases, since it is likely that the respondent would have been able to make some good points in cross-examining Dr. Ali. It seems from his reports that he was unaware of the full extent of the applicant's psychiatric difficulties from 1981 to 1991, erroneously believed that her panic attacks had been cured in 1989, erroneously believed that she had suffered a panic attack at the time of her fall in June 1991, and gave conflicting diagnoses, saying in December 1994 that she suffered from a panic disorder with phobic elements, but saying in 1997 that she was suffering from an adjustment disorder with depressive mood. It is not uncommon for psychiatrists to refine or reconsider their diagnostic formulations. Despite the points that the respondent might have been able to make in cross-examination, we see it as significant that, at least by 1997, Dr. Ali, like Dr. Morse believed the applicant was suffering from an adjustment disorder with depressive features, and that the fall of June 1991 was of lasting significance in relation to that condition.
The second reason we prefer Dr. Morse's opinions to that of Dr. Lewin is that Dr. Lewin's views as to the irrelevance of perceived stressors appear to be inconsistent with ordinary human experience. It may very well be true that a significant percentage of panic attacks occur independently of any stressor or precipitant, but it is a generally understood fact that some individuals do experience extreme anxiety as a result of specific events or situations, such as having to fly or having to travel in a lift. Thirdly, we think Dr. Lewin understated the length of time that applicant experiences a heightened level of symptoms following panic attacks. Fourthly, we believe it to be of some significance that Dr. Morse has been practising psychiatry since 1972 whereas Dr. Lewin has been practising psychiatry only since 1988. We do not overlook the fact that Dr. Lewin is engaged in teaching in his specialty.
In our view the applicant was a truthful witness who was not overstating the extent of her psychiatric symptoms or incapacity, but who was somewhat unreliable as to historical detail. Miss Ford, who appeared for the respondent, has made some forceful submissions as to the applicant's credibility. It is true that what the applicant has said in relation to her psychiatric history has waxed and waned over the years. At times she has mentioned fears about Avgas and at other times she has not. At times she has mentioned some of the pre-1991 psychiatric treatment, but she apparently did not tell Dr. Morse about it, and she seems never to have given a comprehensive account in relation to it prior to the details being pieced together for the hearing. She did not mention the psychiatric significance of the tripping event until years after it occurred. However people with psychiatric problems do not always have the ability to give accurate and thorough histories of their psychiatric problems. We accept the applicant's evidence that she did not realise the significance of the tripping incident with respect to her panic attacks until December 1994. We do not find it surprising that her accounts of her psychiatric history over the years have been incomplete, nor that she has revealed different parts of the total picture on different occasions.
Miss Ford cross-examined the applicant about her activities since 1999 in connection with a real estate organisation. She attended a course organised by a company in the L J Hooker group in early 1999. Business cards were printed for her. A personal profile was prepared. It emphasised her competence in relation to real estate advice. However the applicant said that her only activity in relation to real estate involved assisting her husband who earned money by explaining negative gearing to people. Estate agents refer prospective purchasers to him, and he receives a fee when and if a prospective purchaser buys a property. This is something that the applicant's husband has been able to do in order to earn a small income now that he suffers from cancer. It may be that the applicant is understating the extent of her involvement in this activity to a minor extent, but this evidence does not cause us to doubt the extent of her psychiatric symptoms and incapacity for work.
On the basis of the evidence as to the applicant's psychiatric history from 1981 onwards, we accept that she was suffering from a psychiatric disorder at the time of her fall in June 1991. Thus we do not believe that her fall caused or contributed to the onset of any psychiatric disorder. However, primarily on the basis of her evidence and her mother's, we are satisfied that the extent of her symptoms has been consistently worse since that time. In particular, we are satisfied that it was only thereafter that she was troubled by a fear of panic attacks that led her to reduce her social activity. Also, her absences from work have been consistently longer and more frequent since that time.
We think her fall was only one of a number of factors that contributed to a lasting deterioration in her symptoms at about that time. It seems she had a heightened level of anxiety because of her pregnancy. Her apparently irrational fear that Avgas fumes would harm her unborn child added to that level of anxiety. Then there came the fall, and a continuing fear that the fall might have damaged the child and might lead to a miscarriage or a stillbirth. We accept Dr. Weyman's evidence that by this stage the applicant was so upset that she insisted on her coming on the holiday to Queensland. Dr. Lewin aptly described the applicant's mother as her "phobic companion" in relation to this arrangement. The final contributing factor was the spotting that the applicant experienced in Cairns.
In this context, we find that the fall at work in June 1991 contributed in a material degree to the aggravation of the applicant's pre-existing psychiatric ailment. The aggravation of that condition thus constitutes a "disease" as defined in s.4 of the Act, with the result that compensation is payable in respect of medical treatment under s.16. We are reasonably satisfied that the applicant has been incapacitated for work as a result, sometimes being able to work part-time, but other times being unfit for any work. She is therefore entitled to compensation under s.19 of the Act as well. We do not think that she has exaggerated the extent of her incapacity.
For these reasons, we have decided to set aside the decision under review. We are not able to quantify the compensation payable to the applicant, and have therefore decided to remit the matter to the respondent with directions as follows:
(a)The applicant is suffering an adjustment disorder with mild recurrent depression, an anxiety state and phobic avoidance.
(b)That disorder is an ailment that was aggravated in a material degree by the applicant's employment by the Commonwealth as a result of her tripping at work on 20 June 1991.
(c)The respondent is liable to pay the applicant compensation in respect of that aggravation pursuant to ss.16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
(d)The amount of compensation payable to the applicant is to be determined by the respondent in accordance with the Tribunal's reasons for this decision.
In substance, we have set aside the reviewable decision and remitted the case for re-determination by the respondent. This is therefore a case to which s.67(9) of the Act applies. That sub-section reads as follows:
"Where the Administrative Appeals Tribunal gives a decision setting aside a reviewable decision and remitting the case for re-determination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority."
Unless we are persuaded to order otherwise, the provisions of the Tribunal's General Practice Direction dated 18 May 1998 should apply in relation to costs. However the parties should be given an opportunity to make submissions to the contrary. We have therefore decided to make orders as follows:
(e)The costs of these proceedings incurred by the applicant shall be paid by the respondent.
(f)Unless one or both of the parties make submissions in writing to the contrary prior to 4 pm. on 6 June 2000, the provisions of the Tribunal's General Practice Direction dated 18 May 1998 are to apply in relation to the assessment of costs.
(g)In the event of either party making such a submission prior to 4 pm. on 6 June 2000, a directions hearing in relation to costs is to be held at 9.30am. on 7 June 2000.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM, QC.,
Dr M Thorpe (Member)Signed: .....................................................................................
Personal AssistantDate/s of Hearing 8 and 9 May 2000
Date of Decision 2 June 2000
Counsel for the Applicant Mr R Hanlon
Solicitor for the Applicant Messrs Paul Solomon and Co.
Counsel for the Respondent Miss E Ford
Solicitor for the Respondent Messrs Blake Dawson Waldron
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