YDRP and Comcare
[2007] AATA 1175
•27 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1175
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600207
GENERAL ADMINISTRATIVE DIVISION ) Re YDRP Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr E Christie, Member
Dr G Maynard, MemberDate27 March 2007
PlaceBrisbane
Decision The decision under review is affirmed. This means that the applicant’s application for review is unsuccessful.
....................[Sgd]..........................
Member
CATCHWORDS
COMPENSATION – Commonwealth employees – psychiatric condition – employment related injury – ongoing incapacity – proof of causation and divergent medical opinion – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 29Davie v Edinburgh Magistrates (1953) SC 34
O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Dean and Comcare [2003] AATA 606REASONS FOR DECISION
27 March 2007 Dr E Christie, Member
Dr G Maynard, MemberIntroduction
1. This is an application for a review of the decision made by Ian McGarrigle, Review Officer, on 10 February 2006 that the applicant was not entitled to any incapacity benefits for work on and from 4 December 1999.
2. In arriving at this decision the Review Officer concluded [PT44, Folios 140] that the evidence revealed:
“Ithe last date of incapacity for work previously awarded is 13/06/1990;
IIthe claimant completed a rehabilitation program when she commenced full time employment on 29/01/1991;
IIIthe claimant initiated part-time employment (3 days/week) form 15/02/1993 citing family responsibilities, i.e., unrelated to the compensable condition;
IV. the claimant’s last date of Commonwealth employment was 03/12/1999 following her election to accept a voluntary retrenchment package; and
V. immediately prior to her voluntary retrenchment package, the claimant was employed on a part-time basis as a result of her request to assist with family responsibilities, i.e., unrelated to the compensable condition.”
3.In addition, it was concluded by the Review Officer that “the claimant’s failure to continue to engage in suitable employment by electing and receiving a voluntary retrenchment package was unreasonable in the circumstances”.
4. In her reasons for requesting a reconsideration of the determination of the respondent’s decision, the applicant stated [T1, Folio 1]:
“…During my employment with The Department of Social Security in Sydney New South Wales I suffered a breakdown and subsequently received compensation from Comcare for my condition of Anxiety.
I received treatment for this condition from a Psychologist, [Mr] G and my husband was subsequently transferred from Sydney, New South Wales to Brisbane, Queensland and I accompanied him to Brisbane.
My employment was with CRS Australia. I never fully recovered from my condition. However, during this time I experienced a severe recurrence of my anxiety symptoms and accepted a Voluntary Redundancy from CRS Australia. Whilst I was employed with CRS Australia the Manager at the time placed me under so much stress and I experienced severe harassment from her that I believed I had no choice but to leave. I consulted a GP about the stress I was experiencing in the workplace – Dr L and also my previous CRS Manage, Mrs Sylvia Gillard about the depression and stress I was experiencing.
All staff had to participate in a Work Development Plan. Every Staff member received a performance bonus payment of $200.00 but I was the only staff member not to receive this.
I knew the Department was re-structuring but it was pointed out to me by the Manager at the time that it would be in my best interest to take the redundancy. I really felt I had no choice at the time but to accept her offer. At no time did I initiate the redundancy offer. The CRS office consisted of Professional staff and it was witnessed by them the distress I experienced whilst working with CRS Australia.
I contacted COMCARE who advised me to obtain medical evidence supporting my claim for Anxiety. I was referred to Dr M, Psychiatrist who supported my claim. My claim for Anxiety was accepted. Comcare agreed to pay all medical expenses incurred by myself.” [Applicant’s emphasis].
5. The parties consented for the Tribunal to determine the application for review on the papers.
6. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) and the various exhibits lodged by the parties and summonsed documents.
Background Facts
7. The following chronology of claims and entitlements [PT44, Folio 136] provides a background to the issues to be decided:
· On 27/10/1988, the applicant submitted a claim for compensation in respect to “anxiety” that became apparent on 22/09/1988 allegedly the result of verbal abuse, intimidation, harassment, victimisation and constant swearing by co-workers.
· On 07/06/1989 liability was accepted in respect to ‘’anxiety’’ deemed to have been sustained on 21/09/1988, i.e., the first date of incapacity.
· On 29/07/2004 the applicant advised she had suffered a recurrence of her compensable condition.
· On 07/06/2005 the applicant was advised her entitlement to medical benefits in respect to the compensable condition continued.
· In correspondence received on 25/08/2005 the applicant claimed incapacity benefits.
· On 26/10/2005 liability was denied in respect to incapacity for work benefits.
· On 05/12/2005 the applicant requested reconsideration of the determination dated 26/10/2005” [emphasis added].
Issues before the Tribunal
8.The issues for the Tribunal to decide were:
i. Whether the applicant suffers a present incapacity for work – either total or partial, and if so, whether it is a result of her accepted medical condition (“anxiety”) - and if she does,
ii. In the applicant’s specific factual circumstances, what amount of weekly incapacity payments would she be entitled to under the Safety, Rehabilitation and Compensation Act 1988.
Statutory Requirements and Legal Principles
9. Sub-section 4(1) of the Safety, Rehabilitation and Compensation Act 1988 [“the SRC Act”] defines ”suitable employment”, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, as:-
"suitable employment" , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment--employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case--any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).”
10. Section 19 of the SRC Act applies to an employee who is incapacitated for work as a result of an injury. The following elements of s 19(4) are relevant to this application for review in terms of determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in “suitable employment”:
“…
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; (Tribunal emphasis).”
11. This application for review involves divergent medical opinion. The task of the expert witness in this situation has long been recognised by our courts. In Davie v Edinburgh Magistrates (1953) SC 34 at 40, the following principle was recognised:
“The function of an expert witness is to furnish the [Tribunal] with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the [Tribunal] to form their own independent judgement by the application of these criteria to the facts proved in evidence.”
12. The approach taken by our courts to scientific evidence and the question of causation under “workers’ compensation legislation” is well illustrated in O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234, a case dealing with section 29(1) of the Compensation (Commonwealth Government Employees) Act 1971. In this case, Pincus J stated (at 236):
“…To ask the question whether a particular employment was a contributing factor to the contraction of a disease or to its aggravation, acceleration or recurrence is not to use language of a technical character.
… questions of causation in the application of workers’ compensation legislation ‘are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation’... ‘the question of causation is essentially one of fact’… a finding of fact [involves] a commonsense consideration of the factors which led to the applicant’s condition…” (Tribunal emphasis)
13. The reasoning of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 as to the legal standard of proof in civil litigation, the balance of probabilities, is also relevant:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal… In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences” (Tribunal emphasis).
Assessment Of Medical Evidence
14. The evidence before the Tribunal consisted of medical reports from the following three sources:
a.Extracts of General Practitioner Reports
b.Psychologists’ Reports
c.Psychiatrists’ Reports.
- The general practitioner note extracts have come from the practice of Dr L, the applicant’s treating GP. Dr H of another Medical Centre has submitted a letter on the applicant’s behalf.
- The Psychologist Reports include those of Mr G and Dr S.
- The Psychiatrists who provided written papers included Dr A, Professor M, Dr R, Dr MacL, Dr G and Dr T.
(a) GENERAL PRACTITIONER REPORTS
15.The general practitioner reports were from treating doctors and several entries are notable.
- Dr L on the 30 June 1987 made the diagnosis of Depression for the applicant and gave a certificate ‘Unfit for work 30th June to 10th July.’ (subpoenaed documents)
·Dr L’s diagnosis of depression is a GP’s diagnosis but is still of value as it indicates a possible psychiatric illness prior to the unpleasant situation the applicant experienced in the workplace.
·In the notes from Dr L’s Medical Centre, an entry with an undecipherable date prior to 10 February 2000 states inter alia “got a redundancy from work - much happier”. (subpoenaed documents)
·From this entry it could be inferred that it is an indication of happiness at receiving the redundancy. Such an inference is at odds with the applicant’s statements that she was forced into the redundancy.
·Dr H has written a letter dated 5 July 2004 [PT25, Folio 64] to be sent to Comcare stating that the applicant has symptoms of anxiety/depression similar to a problem she had twelve years ago while working for Centrelink. However, Dr H gives no indication of the applicant’s fitness to work, the severity of her condition or any supporting details to support such an opinion. Accordingly, the Tribunal can only conclude that this medical opinion is subjective and so attaches little weight to it.
(b) PSYCHOLOGIST REPORTS
Mr G
16. Mr G submitted four reports of his assessment and treatment of the applicant from early 1989 till mid 1990. The applicant was referred to Mr G by Ms B, Staff Welfare Officer, DSS. In his report dated 15 March 1989 [PT19, Folio 51] sent to Dr L, the applicant’s GP, Mr G describes the onset of the applicant’s anxiety state and the events that lead up to its development.
17. The applicant felt intimidated by the actions of two fellow workers. A confrontation with these workers resulted in a hysterical response. She left work on that day and had not returned to work to that stage. The applicant developed anxiety associated with train travel and became distressed while discussing her fears. She perceived Sydney as a hostile environment. She felt vulnerable in the environment and felt she was a potential victim of sexual and physical assault. She was conscious of multiple media reports of one such case in Sydney.
18. Mr G diagnosed depression and felt therapy was warranted. After some reluctance the applicant under went therapy and was described as showing some improvement in her depression and she felt more secure in her home. She was however unable to attend sessions independently because of her fear of assault while travelling on public transport. In this report Mr G felt she would not progress sufficiently to return to work until she was in an environment she perceived to be more secure than Sydney.
19. Mr G wrote a letter dated 20 March 1989 [PT18, Folio 46] suggesting a posting for the applicant’s husband out of Sydney.
20. A year later Mr G sent a report dated 5 March 1990 [PT18, Folio 47] to Comcare. The applicant’s husband had not obtained the posting to Queensland he had sought the previous year and she was as fearful as ever and perceived Sydney as a violent environment. She had a four month old child when seen. She spoke of her desire to return to work but could not travel by train because of her fears.
21. In this report Mr G stated the applicant had suffered a serious post traumatic stress reaction manifest by high levels of anxiety and insecurity associated with society in New South Wales.
22. She was motivated to return to work but could not travel by train. He recommended a rehabilitation program with a transfer to a suburban branch and support during the initial adjustment period for return to work.
23. On 19 June 1990 [PT18, Folio 49] Mr G wrote a letter supporting an urgent transfer to Queensland for applicant and his wife.
Dr S
24. Dr S, who had provided psychology support for the applicant from 28 September 2005, submitted a report dated 9 November 2006 (submitted document) to Comcare. He was making comment on what the applicant had reported to him to clarify Dr R’s report on her. He reiterates the applicant’s concerns and does not offer any opinions of his own.
25. Dr S submitted a report dated 7 February 2006 [T43, Folio 124] to Comcare at the request of the applicant. Dr S seems to have been provided with no background material and obtained his history from the applicant.
26. He describes in detail the history of the applicant’s illness as described by her and her approximate two years off work.
27. He describes her return to work at CRS Australia in Brisbane where she worked for five years but always feeling nervous and panicky. She endured anxiety throughout that time but did not let anyone know. The applicant told Dr S that she left CRS to have children. He describes her reported anxiety and agoraphobia getting worse over the years. An episode where her daughter missed the train home from school provoked panic. She took her daughter out of a private school and made her go to a local high school as result of this incident.
28. The applicant stated at the interview that there were no specific stressors present in her life except the ongoing anxiety she experiences about her children. On the history and clinical interview Dr S made a diagnosis of Post Traumatic Stress Disorder.
29. He also diagnosed a Major Depressive Disorder which has been present for some years.
30. Dr S was of the opinion was that she was not fit to return to work until she had undergone an appropriate treatment program.
(c) PSYCHIATRIST REPORTS
31.Reports were received from the following psychiatrists :
i.Dr A,
ii.Professor M,
iii.Dr R,
iv.Dr G,
v.Dr T and
vi.Dr MacL
Dr A
32. There are three communications from Dr A, who was a treating psychiatrist of the applicant. In a short report to Comcare dated 1 September 2004 [T27, Folio 67], Dr A diagnosed Anxiety and Depression. No other detail is included.
33. In a report to Dr H, the referring GP, dated 2 September 2004 [T28, Folio 68], Dr A advises Dr H of her findings of anxiety and panic, in particular her worries about her husband and children’s safety. Dr A felt that the applicant had a biochemical depression in addition to her anxiety or as a cause of them. Medication was recommended.
34. Comcare asked Dr A, as the treating psychiatrist of the applicant for a report in a letter dated 11 November 2004. [T30, Folio 70]. In a reply dated 20 December 2004 [T31, Folio 75], she declined to prepare a medico-legal report and suggested that the applicant be referred to another psychiatrist who would prepare a report.
Professor M
35. At the request of Comcare, Professor M examined the applicant and prepared a report dated 10 May 2005 which was submitted to Comcare [T35, Folio 90]. Professor M’s report records a full history as provided to him by the applicant and from available records, although he does not mention what those records are. He summarises his interview with the applicant and reports his impressions. In addition he answers specific questions put to him by Comcare.
36. In his recording of work history he does not mention the redundancy taken by the applicant and seems to emphasise her children’s births in relation to her work history. It may be interpreted that he believed that the birth of the applicant’s third child had something to do with her not returning to work.
37. Professor M recorded the history of the applicant’s present illness and her treatment. It is of interest that on a number of occasions she had been prescribed medication but was reluctant to take it. She also had reluctance to psychological counselling but in this instance it was because of the cost.
38. He found that she still had some psychiatric symptoms. She still has fears about her children’s safety (rape kidnap etc), anxiety about being in lifts or with strangers. She was described as being hyper vigilant and preoccupied with safety.
39. Professor M found no history of psychiatric illness before 1988 although Dr L had diagnosed depression in 1988.
40. He reported her personal history but it is incomplete with regards to a former marriage and IVF treatment in the present marriage – both possibly significant factors to consider in providing a psychiatric diagnosis based on the best available history.
41. Professor M’s examination of the applicant’s mental state was unremarkable except for his observation that she was preoccupied and anxious throughout the interview and that her history was not characterised by much detail. Professor M was of the opinion that the applicant suffered from an Acute Stress Disorder in 1988. This condition subsided but was followed by chronic symptoms of anxiety of a Generalised Anxiety Disorder (GAD) type. Some of her symptoms of anxiety also reflected elements of, but not a diagnosis of, post traumatic stress disorder symptoms.
42. He believed that she suffered an episode of depression in 1988/89 but this condition is now resolved. Her chronic mild symptoms of GAD have continued and fluctuate depending on the pressures and stresses she is placed under. It was his view that the ongoing symptoms were most likely related to the workplace difficulties that she encountered in 1988. He could find no other explanation for her developing her anxiety symptoms, as there were no other significant psycho-social stressors outside her work situation at the time.
43. He was of the opinion that she had no personality disorder. Her current circumstances reflected a stable psychosocial situation. In his view he felt she would benefit from specialist psychiatric treatment. He also believed that medication combined with psychotherapy of a cognitive and behavioural type would help. In his view six months of therapy would be required but she could attempt a return to work after three months therapy.
44. The applicant expressed a wish to return to work but her fears related to her children’s safety and her own in the company of strangers made this very difficult.
45. Professor M answered all of the questions of Comcare in line with his conclusions. In essence Professor M was of the view that the applicant was suffering from a chronic mild anxiety condition which fluctuates in intensity and is the result of workplace difficulties experienced in 1988. His prognosis is that with specialist treatment she may be able to return to work in as soon as three months.
Dr R
46. Dr R saw the applicant twice, once in 1994 in relation to the applicant’s participation in an IVF program and again in 2006 in relation to this claim at the request of the Respondent’s representative. The first report dated 21 November 1994 (submitted document) concerned a consultation to clarify some issues related to ongoing participation in the IVF program. This does not relate to the present claim.
47. At the request of the Respondent, Dr R examined the applicant and submitted a report dated 20 October 2006. Dr R produced the report after a thorough review of documents which she listed and an extensive interview which was very probing, to test the accuracy of the history. The applicant, in a rebuttal of Dr R’s report, objected to some of the material raised in the report but the depth of the interview was important to get an accurate history. Dr R gives a good description of the development of the applicant’s being very wary of her own and her children’s safety. Specific history was difficult to obtain but it seemed her symptoms worsened after her daughter became older. The “train incident really set it off”.
48. Dr R describes the applicant’s fears for her children’s safety as “ego syntonic”. This is defined as denoting aspects of a person’s thoughts, impulses, attitudes and behaviour that are felt to be acceptable and consistent with the rest of her personality. The applicant feels her fears are realistic and that others “just don’t get it”. Dr R describes behaviour which is of an obsessive compulsive nature. This includes repeatedly checking doors windows and the locking of the car. Dr R gives a full history of this behaviour as it relates to the children. This included the applicant walking her daughter into the classroom at the local high school and sitting outside the school till 11.00am.
49. Dr R notes that the applicant stated she had no obstetric problems but other information reviewed by Dr R outlined the problems relating to the IVF program participation. Dr R also comments on the GPs diagnosis of depression in 1987, referral to a psychiatrist, Dr MacL in 1988, her referral to the psychologist, Mr G in 1989 and his findings. Dr R mentions a referral by an obstetrician, Dr W to a psychologist, Dr C in 1995.
50. In 1996 the applicant was referred to Dr R because she was distraught about feeding difficulties with her baby. Her GP had described her as “mentally exhausted after years of secondary infertility, pregnancy etc". The applicant was then referred to Dr G, a psychiatrist with a special interest in post-natal depression. The applicant told Dr R that she did not take the medication prescribed by Dr G.
51. In 1997 the applicant is recorded as having a fear of ovarian cancer and other diseases by her GP. Dr R dug deeply into history that seemed not to be evident in other reports. And she notes the applicant’s GP recording in contemporaneous notes that she was pleased about the redundancy, more so than she recalls now.
52. Dr R states “These records reveal that [the applicant’s] psychiatric history has been perhaps somewhat more complicated than she recalls or reports now. In addition, a notable feature of her history is her failure to establish therapeutic relationships with mental health practitioners. Her anxieties and fears have not been centred on what occurred at work in 1988 and that there have been other very significant external stressors to which [she] has reacted with considerable rumination and anxiety. There have also been episodes of depression, which again have been unrelated to workplace events.”
53. The applicant was disinterested in giving personal history, not because she was particularly defensive, but for other reasons. Again Dr R found out more than the applicant wished as seen in her rebuttal of Dr R’s report.
54. Dr R summarises that the applicant has experienced at least two episodes of Major Depression, which are unrelated to her employment. She has a Generalised Anxiety Disorder with features of Obsessive-Compulsive Disorder and she has a rather vulnerable or fragile personality. The events, specifically the intimidation by her two co-workers during 1988 at her workplace, in Sydney, exacerbated temporarily her anxiety disorder, but the specific work-related effects have now resolved and the applicant’s condition now represents the natural history of the condition.
55. Dr R agrees with Professor M in his view that a return to work would be beneficial after six months specialist care including medication and cognitive behavioural therapy. She however believes the longitudinal history is that the applicant would not persist with the medication or attend the psychiatrist for any length of time.
Dr MacL
56. Dr MacL wrote a report dated 2 November 1988 to the applicant’s GP at the time, Dr L. The report only mentions the workplace incident as “[f]our weeks before I saw her she was forced to give up her secretarial job in Sydney.” There are no details of the circumstances and most of the report deals with a severe anxiety state and agoraphobia associated with a fear of violence in Sydney. This tends to support Dr R’s later report.
Dr G
57. Dr G is a psychiatrist with an interest in Post-natal depression and he sent a report dated 27 November 1996 to Dr Li, the applicant’s GP at the time concerning a referral for post-natal depression. At the time the applicant was suffering from a Major Depression Post-Natal in nature. The report does not add to the work history.
Dr T
58. Dr T, a psychiatrist sent a report dated 23 September 1999 to Dr L which addressed problems with a miscarriage following a long battle with fertility problems and what Dr T describes as “what sound like unfair demands in her work at the Commonwealth Rehabilitation Service”. He describes her difficulties with corporatisation at work. There is really no additional information on her psychiatric condition but it could be open to infer from his opinion that “[the applicant] may hear in the next month if she is to be offered a redundancy payment, but I think work has helped produce a significant level of distress whereby a trial of antidepressant is worthwhile” as seeing the possible redundancy as a positive factor.
Consideration Of The Issues And Findings Of Fact
59. The central issue to consider is the question of causation of the applicant’s accepted psychiatric condition. Whether the applicant’s past employment is a contributory factor to her ongoing, current psychiatric condition is a question of fact, and findings of fact should be based on a commonsense consideration of the factors which may be related to her present condition: O’Neill’s case.
60. The Tribunal has commented upon the standardised approach taken by medical professionals in diagnosing a medical condition. Firstly, dependence on the history given to them by the patient is the essential starting point for their expert opinion. The patient’s history is then complemented by clinical examination (including any appropriate diagnostic tests) together with their own clinical experience, in order to provide objective conclusions as to causation: Re Dean and Comcare [2003] AATA 605.
61. In this regard, we place a particular focus on the history provided by the applicant to doctors, psychiatrists and allied health professionals (psychologists). The details she provided are the essential foundation of any diagnosis. If there are inconsistencies in the history provided by the applicant to medical or allied health professionals there will be difficulty for proof of causation as a matter of law: Briginshaw’s case.
62. We place little weight on the opinion of Mr G (psychologist). The history taken over 1989-1990 makes no reference to the past IVF treatment. The diagnosis of a PTSD condition is not supported by objective data and we conclude that it is only a subjective opinion.
63. We place little weight on the opinion of Dr S (psychologist). He has relied on the history taken from the applicant to prepare his diagnosis and opinion. There are inconsistencies in this history. The history provided to him by the applicant states that there were no specific stressors in her life except the ongoing anxiety experienced by her about her children.
64. We conclude that the diagnosis and opinion provided by Dr A is subjective, as there is no objective criteria or information to support the conclusions she has made.
65. Professor M and Dr R agree on the diagnosis of a chronic General Anxiety Disorder but disagree on its “aetiology” i.e. the agents [or stressors] that cause the condition. However, Professor M has not attached any weight to the problems associated with either the IVF program or the features of the Obsessive-Compulsive Disorder, as it related to safety concerns for herself and children, given that Professor M states there were no other psychosocial influences other than her workplace incident to account for her condition. We can only conclude that Professor M did not have full access to all the available documentation in preparing his report and it has been recorded that the applicant gave differing emphasis to parts of her history i.e. the issue of inconsistency of history provided by the applicant.
66. The role of IVF treatment in the applicant’s condition is held be significant because three of the referrals to psychiatrists relate to problems for the applicant associated with the IVF program and post-natal periods.
67. In addition, we accept Dr R’s conclusion that the facts in the applicant’s history support the secondary diagnosis of Obsessive-Compulsive Disorder which is a major factor in the applicant’s lack of wellbeing. The Obsessive-Compulsive Disorder influenced greatly how she related to her children. In particular, she seemed unaware that frequently speaking of the dangers she perceived might have a negative effect on the children - rather than the positive effect she wished to generate. Dr R has addressed this issue.
68. The diagnosis of Post Traumatic Stress Disorder as proposed by Mr G and Dr S has been rejected by the psychiatrists. We also agree with the psychiatrists in this regard for reasons we have given.
69. Both Professor M and Dr R agree that the applicant could return to work but only after a period of specialist help from psychiatrists and psychologists using medication and cognitive behavioural therapy. In reviewing previous attempts at therapy, Dr R is doubtful that the applicant could complete such a course of treatment.
70. Having reviewed all of the available material and medical and health opinions contained in all of the various reports, we prefer the opinion of Dr R because it shows a great depth in examining the applicant’s history in the supporting documents and at interview. All conclusions are objective as they are based on sound assessment of the information available. The detailed history taken and recorded is very significant as it offsets the limitations and inconsistencies in the histories taken and relied upon by the other medical and allied health professionals. Based on a commonsense consideration of the factors or stressors causing the applicant’s psychiatric condition, and on the history taken and diagnosis made by Dr R, we make the following findings of fact:
(a)That the applicant has a vulnerable or fragile personality;
(b)That the applicant suffers from a generalised anxiety disorder with features of obsessive-compulsive disorder;
(c)That the applicant has experienced at least two episodes of major depression. However, this condition is unrelated to her employment;
(d)The events created by intimidation by her fellow co-workers at the workplace in Sydney during 1988 temporarily aggravated her anxiety disorder;
(e)However, the stressors that are specifically work-related have now resolved; and
(f)That the applicant’s current condition now represents the natural history of the condition.
71. For all of the above reasons, there is no statutory basis for the applicant to be entitled to any incapacity payments under section 19 of the SRC Act.
72. Accordingly, the applicant is neither totally nor partially incapacitated for work as a result of the accepted injury.
73. Given these findings, there is no need for us to consider the issue of weekly incapacity entitlements.
Decision
74.The decision under review is affirmed.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie and Dr G Maynard, Members
Signed:………………………………………………………
Legal Research OfficerMatter decided on the papers
Date of Decision 27 March 2007
The Applicant was self represented
For the Respondent Mr C Clark of Counsel
DLA Phillips Fox, Solicitors
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