Young and Comcare (Compensation)

[2017] AATA 325

Young and Comcare (Compensation) [2017] AATA 325 (16 March 2017)

Division:GENERAL DIVISION

File Number:           2016/0330

Re:Graham Young

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member P Nolan

Date:16 March 2017

Place:Brisbane

The decision under review is affirmed.

...............................[Sgd].........................................

Senior Member P Nolan

CATCHWORDS

WORKERS’ COMPENSATION - Commonwealth employee, claim for permanent impairment - whether injury for the purpose of the SRC Act - accepted condition - major depressive disorder - whether permanent impairment - decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 14, 16, 24, 27

REASONS FOR DECISION

Senior Member P Nolan

16 March 2017

Introduction

1.Graham Young (the “Applicant”) suffers from episodes of Major Depressive Disorder. Comcare (the “Respondent”) accepted liability, by way of a decision by consent of this Tribunal dated 25 March 2015, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) for an ‘episode of Major Depressive Disorder, recurrent’ that had resulted from the Applicant’s employment at the Department of Human Services (the “Department”).[1] The Respondent has denied liability for any permanent impairment.

[1] Exhibit 1, T11 AAT Decision No 2015/3921, dated 25 March 2015, pages 51-52.

1. The Applicant is a 57 year old man at the time of the Hearing in December 2016. He had been married for 12 years until he and his wife had separated in June 2016. At the hearing I was informed that they are now living in separate establishments.

2. On 20 July 2015 the Applicant lodged a claim for permanent impairment compensation.[2] On 25 September 2015 the Respondent denied liability for the Applicant’s claim for permanent impairment and non-economic loss (respectively s 24 and s 27 of the SRC Act).[3]

   [2] Exhibit 1, T12 Compensation Claim for Permanent Impairment and Non-Economic Loss, dated 20 July 2015, pages 53-69.

   [3] Exhibit 1, T14 Determination dated 25 September 2015, pages 73-75.

3. On 18 November 2015 the Respondent affirmed, by way of reconsideration, their decision of 25 September 2015.[4] On 20 January 2016 the Applicant applied to this Tribunal for review of that reconsideration.

   5.For the reasons set out below, in my view the Applicant has not demonstrated that he continues to suffer from an injury for the purposes of the SRC Act, nor has the Applicant shown convincingly that a permanent impairment has resulted from such an injury.

   [4] Exhibit 1, T17 Reviewable Decision dated 18 November 2015, pages 82-86.

   Background and Applicant’s History

4. The Applicant first suffered from depression, according to his own evidence and supported by his wife’s statement,[5] in approximately 1998 following the death of two family members. He was treated for this and prescribed medication.[6]

   [5] Exhibit 5, Statement of Catherine Barry, dated 18 October 2016, [3].

   [6] Exhibit 2, Statement of the Applicant, unsigned, dated October 2016, [2].

5. The Applicant has held a variety of positions throughout his working life. Prior to his work in the public service, he and his wife operated two post office businesses very successfully. The businesses were ultimately sold prior to the Applicant gaining employment at the Department during or around 2009.

6. The Applicant was employed by the Department from around 2009 until 2013. Unfortunately, he was the victim of workplace bullying during 2012. He reported his experience to the Department but ultimately it was too late to avoid suffering its effect. The effect of this experience was that he suffered an episode of Major Depression Disorder.

   Issues for the Tribunal

7. There are a number of issues for the Tribunal to determine, these are:

   (a)Whether the Applicant continues to suffer from an ‘injury’ for the purposes of the SRC Act;

   (b)Whether the injury resulted in a permanent impairment; and if so,

   (c)Whether the degree of permanent impairment is at least a 10% whole person impairment.

   Legislative Framework

8. Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.[7] The Applicant here made a claim for an episode of Major Depressive Disorder, recurrent which was accepted by way of consent decision of the Tribunal on
   

   [7] Safety, Rehabilitation and Compensation Act 1988 (Cth).

   25 March 2014.

9. The Respondent’s liability for that episode was limited to the period of 26 August 2013 to 4 February 2014. The Applicant now seeks to establish that he suffers from a permanent impairment arising out of the injury sustained in that timeframe.

10. ‘Injury’ is a defined term in s 5A of the SRC Act and includes mental injury arising out of employment. The central issue is that the injury has to be work related. In Mr Young’s case the injury must be related to his employment at the Department.

11. It is alleged, by the Applicant, that he has an injury for the purposes of the SRC Act and that it has resulted in a permanent impairment. Compensation for injuries resulting in permanent impairment is dealt with under s 24 of the SRC Act:

    (1)  Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

    (2)  For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

    (a)the duration of the impairment;

    (b)the likelihood of improvement in the employee’s condition;

    (c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

    (d)any other relevant matters.

    Medical Evidence

12. The Respondent contends that the Applicant no longer suffers from an ‘injury’ for the purpose of the SRC Act.[8] As noted earlier, the Respondent has previously accepted liability for the Applicant’s incapacity to work between 26 August 2013 and
    

    [8] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, [21]

    4 February 2014, as a result of an injury caused by the experience of workplace bullying.

13. A critical question is whether the Applicant continues to suffer from an injury for the purposes of the SRC Act. He has been examined by two psychiatrists since he lodged the claim for compensation in pursuant to these proceedings. Dr Duke on the 12 May 2016 examined him for the Respondent and Dr De Leacy on 8 July 2016 for the Applicant. The doctors agree that the Applicant has suffered from episodes of Major Depressive Disorder over the years. However, they disagree as to whether the current injury claimed is a result of his employment with the Department or whether this is a different disorder or caused by different factors than the one the Applicant suffered from after his employment.

14. Dr Duke was firmly of the view that this is a different episode of a major depressive disorder and thus not an injury within the confines of the SRC Act. Dr De Leacy disagrees. Having listened to the evidence, presented at the hearing, and read a number of reports,
    I am of the view that the opinion of Dr Duke is more persuasive.  I take this view because:

    (i)Dr Duke has examined the Applicant on an earlier occasion on
    29 January 2014 and found that he was not suffering an episode of depression at that time.

    (ii)Dr Duke noted that twelve months prior to that Dr Petersen found the depression improved and was slowly resolving.

    (iii)Dr Duke noted that activities that the Applicant embarked upon, in recent times, were inconsistent with him suffering a major depressive disorder prior to him being viewed by Dr De Leacy on the most recent occasion. These activities include working as a real estate agent and taking a trip overseas. The Applicant maintained that he had not wanted to go on the trip but went reluctantly. However, he was prepared to get malaria shots before the trip, which indicates to me that he willingly participated in the preparation for the trip. Further, his wife testified that she organised the trip to help keep their marriage together. I have no doubt that the Applicant went on the trip and was able to participate in group activities and get along and mix with people. This, according to Dr Duke, is inconsistent with the continuing major depressive disorder.

    (iv)The Applicant has not attempted to perform or embark upon any of the treatments suggested to him by specialist doctors whenever he saw them. In essence he has not done enough with respect to helping to alleviate his condition or treat it.

    (v)The fact that the Applicant still suffers from the depressive disorder does not mean it relates to the work related injury caused by bullying. Dr Duke noted that the Applicant’s marriage was breaking up and he was not doing well selling real estate. I consider that these are probable causes to his current condition quite unrelated to the bullying.

    (vi)Dr De Leacy, on the other hand, makes a statement on page 6,
    paragraph 2 of his report that the cause of the current condition is work related; however, he does not support that opinion in any way. During cross examination Dr De Leacy agreed that his assessment of permanency was based on one assessment with the Applicant and he made no reference to or looked at other medical reports to gain any assistance. He also agreed that in May 2015 the Applicant was not suffering from a major depressive disorder. Earlier in cross examination Dr De Leacy agreed the Applicant was not suffering from such a disorder on 14 February 2014 and was not suffering from it up until at least January 2015. The doctor agreed the marriage failure may have caused the depression but then wondered why the marriage was breaking up. I took this to mean that he wondered whether the marriage was breaking up because of earlier episode of major depression but if he did he did not say it very clearly.

15. My view of the medical evidence is further substantiated by the evidence of Dr Petersen who examined the Applicant in 2013 and 2014 in relation to his initial claim.
    On 28 January 2014 the Respondent wrote to Dr Petersen requesting a report.[9]
    On 9 February 2014 Dr Petersen produced a report. In that report Dr Petersen noted the severity of the symptoms that Mr Young was experiencing at that time. However, in response to a question seeking a view on the causation of the condition, particularly whether it was work caused, Dr Petersen responded with:

    Irrespective of Mr Young’s employment with the Department Of Human Services he would have required both supportive psychotherapy and treatment with an antidepressant for his severe major depressive episode.[10]

    [9] Exhibit 1, T8 Letter from Comcare to Dr Kerrin Petersen, Consultant Psychiatrist, requesting a report, dated 28 January 2014, pages 41-44.

    [10] Exhibit 1, T9 Report of Dr Kerrin Petersen, Consultant Psychiatrist, dated 9 February 2014, pages 45-48.

16. This suggests that Dr Petersen did not view the workplace incident as having resulted in the Applicant’s requirement of treatment.

17. In a letter dated 31 March 2014 Dr Petersen answered a question about the Applicant’s symptoms and the severity of his symptoms with:

    Mr Young now describes that his mood has returned to normal that he is eating and sleeping well and that he is again regularly exercising. His irritability and anger have significantly resolved and again he feels far more connected with family and friends. Mr Young is able to derive enjoyment and pleasure from activities and maintains the absence of any suicidal ideation. The resolution of his depressive symptoms has been paralleled, to some extent, with an improvement in his cognitive symptoms however, these do persist to a minor degree, particularly his word finding difficulties.[11]

    [11] Exhibit 4, bundle of five documents, Dr Kerrin Petersen letter dated 31 March 2014, pages 1-2.

18. Dr Petersen responded to Comcare to the effect that she had subsequently reviewed Mr Young and his condition was improving and had largely resolved. She stated “I believe Mr Young is currently fit to return to full-time employment…”[12] Dr Petersen’s observations, to me, indicate that she was of the view that by March 2014 Mr Young’s relevant conditions had resolved.

    [12] Exhibit 4, bundle of five documents, Dr Kerrin Petersen letter dated 31 March 2014, page 2

19. At the hearing, during cross-examination, it was put to Dr De Leacy, that the symptoms
    Dr Petersen described did not constitute an episode of Major Depressive Disorder.
    Dr De Leacy was hesitant to agree and thought that there was an indication of some residual disorder and that the Applicant still had some minor cognitive difficulties. However, Dr De Leacy did eventually concede that it was not Major Depression, but reiterated that there was an “ongoing vulnerability” in the background. Dr De Leacy assured the Tribunal that he had no reason to question Dr Petersen’s report.

20. Ultimately, I have come to the view that Dr Duke is the more preferable witness.
    His evidence is more thorough and he certainly refers to more detail and independent evidence to support his contention, which is consistent with the opinion provided by
    Dr Petersen.

    CONCLUSION

21. The Respondent should not be liable for an underlying susceptibility to Major Depression Disorder or the condition itself when it predates the Applicants employment.

22. The Applicant has submitted that his experience working at the Department has led to a permanent impairment. I am not convinced. The valuable medical evidence, most notably of the consultant psychiatrists, has led me to conclude that the Applicant has a pre-existing susceptibility to episodes of Major Depressive Disorder, that while his employment with the Department may have contributed to a single episode of this condition, it has been accepted that, that episode resolved at the latest during 2014.

23. I am of the view that the Applicant’s more recent episodes of the condition were caused by factors outside of his work with the Department. As such for the purpose of the
    SRC Act the Applicant no longer suffers from an injury and a permanent condition has not arisen from an injury, as under the SRC Act.

    26.For the reasons given I affirm the decision under review.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons
for the decision herein of
Senior Member P Nolan

..............................[Sgd]..........................................

Associate

Dated: 16 March 2017

Dates of hearing:	5 December 2016 6 December 2016
Counsel for the Applicant:	Mark Seymour
Solicitors for the Applicant:	Georgia Plunkett-Scott Maurice Blackburn Lawyers
Counsel for the Respondent:	Kate Blackford-Slack
Solicitors for the Respondent:	Lindsay Cooper Australian Government Solicitor