ZZRP and Comcare (Compensation)
[2021] AATA 137
•22 January 2021
ZZRP and Comcare (Compensation) [2021] AATA 137 (22 January 2021)
Division:General Division
File Number(s): 2014/4443
Re:ZZRP
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:22 January 2021
Place:Sydney
The reviewable decision, being the decision of Comcare made 16 July 2014 affirming the decision to cease payments to the Applicant for medical expenses and loss of income from 20 May 2014, is affirmed.
.............................[SGD]...........................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – depressive disorder – anxiety state – whether Respondent liable to compensate the Applicant in respect of the cost of medical treatment – whether Applicant incapacitated for work as a result of the compensable injuries – whether Applicant suffered an injury – application of Hannaford principle – where workplace incident ceased to make a significant contribution to the condition suffered by the Applicant – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 20
CASES
Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263; [2006] FCAFC 87
REASONS FOR DECISION
Deputy President J W Constance
22 January 2021
A. INTRODUCTION
The Applicant is 59 years old.
In 1999 the Applicant commenced employment by the Australian Taxation Office (“the ATO”).
In 2011 the Applicant lodged a claim for compensation for an anxiety condition which he said had been caused by his employment.[1] I will refer to this claim in greater detail later in these reasons.
[1] Exhibit RR9 at 33.
On 27 July 2011, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), Comcare accepted liability to compensate the Applicant in respect of injuries being Depressive Disorder and Anxiety State.[2] For almost three years Comcare made payments to the Applicant by way of compensation for periods of incapacity and for medical expenses incurred for treatment of his injuries.
[2] Exhibit RR9 at 60.
The Applicant ceased attending work at the ATO in March 2011 and was retired from the Office in October 2012 on the grounds of invalidity.
On 20 May 2014 Comcare determined to cease payments to the Applicant for medical expenses and loss of income from that day on the ground that he had no entitlement at that time to compensation in respect of medical expenses under section 16 of the Act or to compensation for incapacity payments under section 20.[3]
[3] Exhibit RR9 at 153.
On 16 July 2014 Comcare affirmed the decision of 20 May 2014.[4] I will refer to the decision of 16 July 2014 as the reviewable decision.
[4] Exhibit RR9 at 167.
The Applicant has applied to the Tribunal to review the reviewable decision. For the reasons which follow the reviewable decision will be affirmed.
Hearing on remittal
The Applicant’s application was heard by the Tribunal on 22 and 23 March 2018 and 12 June 2018 (“the initial hearing”). On that occasion evidence was taken from witnesses and documents were taken into evidence. The Tribunal published its decision on 16 July 2018.
Following an appeal to the Federal Court of Australia by Comcare, the matter was remitted to the Tribunal to be heard according to law. When the matter again came before the Tribunal the parties agreed that the review could be determined on the basis of the transcript of the initial hearing, the exhibits tendered at that hearing together with one additional exhibit being RR11.
The Applicant and Counsel for Comcare made oral and written submissions on the evidence.
B. BACKGROUND
In March 2011, the ATO made a new appointment to the position of the Applicant’s manager.
In his Claim for Workers’ Compensation dated 31 May 2011[5] the Applicant claimed compensation for the injury of Anxiety State first noticed on 27 April 2011. He first sought treatment for the condition on 19 May 2011 when he consulted his General Practitioner, Dr Saunders.
[5] Exhibit RR9 at 15.
The Applicant described the circumstances leading to his suffering the claimed injury as follows:
Catching up on backlog of work from previous unrelated absence for chronic injury. When new manager started insisting I provide the summary of the work I was attempting to provide which was impossible as I was still entering the data. Data was also subject to privacy legislation so I began becoming (sic) confused but new manager didn’t care.
Also I was continually repeatedly to provide information I had no access to, nor authority to provide including directed to do illegal activities. He then kept distracting me with unrelated information I had no knowledge of.
Direction to provide private client information that was impossible and subject to privacy and repeatedly harassed to provide information I had no knowledge, authority or access to, or was not ready as no-one entered my [indecipherable] or covered my duties whilst absent for 3-4 weeks.
Ongoing harassment whilst ill from this by being refused alternatives, told my sickness is unauthorised absence even though I have medical certificate. Forced to provide medical certificate to unrelated 3rd party although private.
I am still in writing accountable for my role even though necessary access has been taken away and at least several people are entering, manipulating data and producing reports that I do not have any way of verifying or ability to carry out my duties – the information is sensitive + private client information.[6]
C. THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
[6] Exhibit RR9 at 18-19.
Subsection 14(1) provides:
(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.
Subsection 5A(1) provides:
(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.
Disease is defined in section 5B:
(1) In this Act:
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.
Subsection 4(1) defines ailment as:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Subsection 16(1) provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Subsection 20(1) relevantly provides:
(1) Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a) the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b) the employee receives a pension under a superannuation scheme as a result of the employee's retirement.
The injury referred to is an injury in respect of which compensation is payable under section 14.
The remaining subsections of section 20 provide the method of calculation of the amount of compensation payable to an employee.
D. SUMMARY OF SUBMISSIONS
It was argued on behalf of Comcare that the reviewable decision should be affirmed on the following grounds:
(1)on the evidence now available, the Tribunal cannot be satisfied that the Applicant suffered an injury (within the meaning of section 5A of the Act) in or about the months of March, April and May of 2011;
(2)alternatively, in light of the evidence now available, the Applicant suffered an aggravation of a pre-existing condition arising out his employment by the ATO, and:
(3)as at 20 May 2014 and continuously since, any ailment or ailments suffered by the Applicant were not contributed to, to a significant degree, by his employment by the ATO.
The Applicant argued that the decision to compensate him in respect of his claimed injury was correct and that he has continued to suffer the effects of that injury continuously since he was injured.
E. ISSUES FOR DETERMINATION
The following issues arise for determination in this application.
(1)Is Comcare liable to compensate the Applicant in respect of the cost of any medical treatment obtained by him in relation to the compensable injuries on or since 20 May 2014?
(2)Has the Applicant been incapacitated for work as a result of the compensable injuries on, or at any time since, 20 May 2014?
F. EVIDENCE
Report of Dr Saunders, General Practitioner
On 13 May 2011 the Applicant consulted his General Practitioner, Dr Saunders.
On 16 June 2011 Dr Saunders reported [7]:
[The Applicant] presented first on 13.5.11 complaining of anxiety due to stress at work.
On 19.5.11 he requested a workcover certificate claiming his anxiety was due to friction with a new manager in the office.
On 10.6.11 he was referred to a psychologist/counsellor at [redacted] Counselling Centre. [The Applicant] has not yet attended that service.
[The Applicant] first presented with anxiety symptoms at time of domestic tensions in October 2010. Referred to [redacted] Health Centre.
Stresses at work seems to have aggravated this condition in April/May 2011 causing a return to anxiety symptoms.
In May 2011 [the Applicant] claimed friction with a new manager caused his symptoms.
I await a report from psychologist/counsellor at [redacted] Centre.
[7] Exhibit RR9 at 47.
Report of Dr Allnutt, Consultant Psychiatrist
Dr Allnutt assessed the Applicant on 4 July 2011 at the request of Comcare. He provided a report dated 11 July 2011.[8]
[8] Exhibit RR9 at 51.
Dr Allnutt was of the opinion that the Applicant was “manifesting symptoms consistent with a Depressive Disorder characterised by a depressed and anxious mood”.[9] He reported that:
There is relatively little evidence of a pre-existing or underlying condition. Preceding the onset he appears to have been with the ATO for a number of years now with no evidence of significant interpersonal conflict or performance difficulties that I am aware of, based on the documentation and information provided to me which would suggest an absence of a pre-existing or underlying condition or pre-disposition.
For this reason, I would not regard his current medical condition as an aggravation, acceleration or recurrence of a pre-existing or underlying condition without further information.[10]
[9] Exhibit RR9 at 56.
[10] Exhibit RR9 at 57.
Reports of Dr Vickery, Consultant Psychiatrist
Dr Vickery assessed the Applicant’s fitness for duty in July 2011 at the request of the Health and Management section of the ATO. He provided reports dated 20 July 2011[11] and 9 September 2011.[12]
[11] Exhibit RR5.
[12] Exhibit RR6.
On 20 July 2011 Dr Vickery reported that the Applicant showed clinically significant anxiety, depression and paranoid ideation. He diagnosed the Applicant as suffering from a psychotic disorder associated with paranoid ideation. His prognosis was guarded as the Applicant was not undertaking psychiatric treatment and did not experience any insight. He was not fit for any duties at the time of the assessment.
Report of Dr Walker, Forensic Psychiatrist
Dr Walker undertook occupational health assessments of the Applicant in late October 2011 and on 29 February 2012 at the request of the Health and Management section of the ATO. He provided reports dated 7 November 2011,[13] 19 December 2011[14] and 18 April 2012.[15]
[13] Exhibit RR9 at 85.
[14] Exhibit RR9 at 93.
[15] Exhibit RR9 at 117.
Under the heading Symptoms, Dr Walker reported, in part:
He is shell-shocked that he is not in control. Getting locked up (detained under the Mental Health Act in hospital in November 2011) really scared him and totally knocked his confidence.
He is depressed and tired. He has lost interest in playing the guitar. He has problems with concentration, self-esteem, sleep and appetite. He denies planning to harm himself or others.
He mulls over work issues. He always worries about work and his future. He is not socialising because he does not want to leave the house. He felt nauseated and was sweating on leaving home to attend this assessment. He denies other symptoms of anxiety.
He does not want to go out because he has been told that people are talking about his hospital admission from November 2011.[16]
[16] Exhibit RR9 at 119.
Dr Walker diagnosed the Applicant as suffering Bipolar 1 disorder and possible early onset dementia. He assessed the Applicant as eligible for invalidity retirement on the basis of his psychological conditions and was of the opinion that the Applicant did not have the capacity to comply with reasonable directions and adhere to the Public Service Code of Conduct.
Report of Dr Burek, Consultant Psychiatrist
Dr Burek assessed the Applicant in March 2014 at the request of Comcare. He provided a report dated 19 March 2014.[17]
[17] Exhibit RR9 at 141.
Dr Burek reported, in part:
The specific diagnosis is Alcohol Abuse and dependence with associated cognitive impairment and paranoid ideation.
I have given a description of the history given by [the Applicant]. I consider that this situation was present when he first met the new manager with the alleged harassments (sic).
The diagnosis of binge alcohol drinking, paranoid personality traits, and cognitive impairment were seen by Dr Kipling in April 2012. There is no difference to the condition currently. He was involuntarily hospitalised in November 2011 for a month. There the diagnosis was that he had an episode of bipolar affective disorder. He has taken no effective medication since early 2012. There appeared to have been no episodes since.
……….
I do not consider that his reported harassment at the ATO is currently affecting [the Applicant] and his symptoms. His current symptoms result from cognitive impairment and paranoid personality traits which are both probably caused by alcohol consumption.[18]
Later in his report Dr Burek stated that the Applicant’s compensable conditions of Depressive Disorder and Anxiety State caused by employment in the ATO had resolved.
[18] Exhibit RR9 at 145-146.
Clinical Notes of Mr Henrick, Psychologist
Mr Henrick commenced treating the Applicant in September 2016, on referral from the Applicant’s General Practitioner. His clinical notes are in evidence.[19]
[19] Exhibit RR2.
In a clinical note dated 6 July 2017, Mr Henrick recorded, in part:
[The Applicant] also mentioned he was hospitalised for up to three months while living in Manly in the 1980s or ‘90s? heavily medicated. He believes his father had something to do with that and that he was never made aware of his rights and was a social pariah thereafter (‘[the Applicant’s] been in the nuthouse for three months was the rumour is getting around Manly). He says it followed him there.
………..
[The Applicant] says father has labelled him schizophrenic and/or bipolar. He accepts that he may have bipolar symptoms but denies schizophrenic diagnosis.[20]
[20] Exhibit RR2 at 13.
In a clinical note of 11 October 2016, Mr Henrick recorded, in part:
[The Applicant] admitted to problems in the past with alcohol abuse, mentioning in passing that he had been “done five times” for drink driving. This needs to be explored in more detail as it may be that the psychiatrist who alluded to probable alcohol abuse problems was correct at the time. Even if [the Applicant] is not drinking now, it could have been a problem for him at the time of the events with the ATO and Comcare were occurring.[21]
[21] Exhibit RR2 at 8.
On 10 August 2017 Mr Henrick noted:
[The Applicant] admits he will not talk to me about a lot of stuff because he is afraid it will come back to bite him if his records are subpoenaed.………. [The Applicant] has another Comcare hearing on 22nd August. Not sure exactly what it is regarding, but presumably it is about negotiating a larger settlement amount?[22]
Mental Health Triage Contact 20 December 2010[23]
[22] Exhibit RR2 at 14.
[23] Exhibit RR2 at 70.
On 20 December 2010 the Applicant contacted a New South Wales Community Health Centre by telephone. The notes of that contact record that the Applicant was a self-referral and that he had a letter from his General Practitioner. The reason for the referral is recorded as:
GP wants him assessed, is querying Bipolar Disorder. Last few months, angry + irritable ++ culminated in throwing his wife (of 2 years - Filipino on spouse visa) out on the street i/c her bags. Remorseful re this but also blames wife + has other issues i/c her. She returned home today – yet to talk. Has hit her in the past. Worried anger will worsen, sleep, has always self-medicated, mood “snappy”, angry. Longer term mood says unhappy but not depressed. …… No previous psychiatric treatment. Self reports history of monthly elevated mood for = 3 days, “running around, like a rocket, very active”. Otherwise, “have never been a happy person”, “always wished death would hurry up”.
…
Alcohol = 6 beers every Friday afternoon.
Cannabis – daily use for 20 years, stopped 1 yr June 2009 – 2010 then again daily + stopped 1 month ago.
Manly Hospital Discharge Summary 12 December 2011[24]
[24] Exhibit RR2 at 84.
The Applicant was hospitalised from 6 November 2011 until 12 December 2011.
In the following paragraph a precis of the Discharge Summary included in a report by Dr Moffatt, Consultant Psychiatrist, is reproduced. I am satisfied that it accurately reflects the content of the Discharge Summary.
Manly Hospital Discharge Summary dated 12 December 2011. The discharge summary states that this was [the Applicant’s] first contact with mental health services. It stated that he had been brought to hospital on 6 November 2011 by police following three 000 calls. Apparently [the Applicant] had called to express concern for his safety, claiming that his wife was at the front door with a large man, trying to break the door down to hurt him.
[The Applicant] stated that he had been upset that his wife had not been paying rent despite working for the past six months, and he wanted to teach her a lesson by locking her out. [The Applicant] was allegedly intoxicated at the time. He was so frustrated that nobody had responded to his numerous 000 calls that he rang the Newcastle Police to say that someone had been stabbed. The police checked [the Applicant’s] father's house as they were concerned for [the Applicant’s] father’s safety and they also attended [the Applicant’s] apartment in Manly where they needed to break down the door to enter. They found him sitting on the bed playing the guitar. He was agitated and aggressive, and subsequently handcuffed and taken to Manly Hospital for assessment.
According to [the Applicant’s] wife (interviewed during the admission), her husband could be very physically and verbally aggressive when intoxicated and had in fact assaulted many people in the Philippines when there on holiday. She stated that she was required to settle this out of court in order to avoid police charges and damage to [the Applicant’s] reputation. His wife also stated that she had spent time in a woman's refuge over a year prior when she was worried for her safety after [the Applicant] was intoxicated. His wife also reported [the Applicant] having depressive episodes in the past six months since stopping work, and that he had been very concerned about money.
Corroborative history from [the Applicant’s] father, a retired GP, was that [the Applicant] may have had symptoms of hypomanic episodes in the past, with racing thoughts and saying unusual things, but that such episodes usually resolved quickly. His father stated that there had been no other family history of mental illness.
[The Applicant] identified the following stressors during his admission: The Workers' Compensation appeal; his wife's immigration approval; helping a friend with an unfair dismissal case for the past two years; his brother had been diagnosed with cancer and was unable to tell his father; bankruptcy related to his wife's immigration; his wife's refusal to assist with rental payments.
On presentation to hospital [the Applicant] was found to be irritable, agitated, disorganised, entitled and misinterpreting information. He expressed paranoid ideas that his wife was having an affair and committing a crime of adultery, and he believed his wife was taking as much money as she could from him and was not contributing to the rent.
It is noted that he attempted to abscond from the emergency department and required intravenous sedation twice. He was commenced on the antipsychotic olanzapine with some improvement in his paranoia, and he accepted that he may have misjudged events prior to the admission. Following treatment, however, he then denied some of the concerns that he reported previously. It was noted that he appeared to have a problem with processing information. It was initially unclear whether his clinical picture represented an acute episode or whether it was part of a long-term paranoid personality exacerbated by recent stressors. However there appeared to be a striking pattern of [the Applicant] being in conflict on many fronts and believing that no one was supportive of him or capable of fulfilling their role.
It also appeared that a previously high functioning person was now finding it difficult to complete previously performed tasks such as lodging a reply for his Workers' Compensation case. [The Applicant] had a clear lack of insight regarding events that may seem unusual or irrational to the general public.
He underwent psychometric testing by the ward psychologist and there was evidence of cognitive impairment. Overall intellectual functioning fell below average, perceptual reasoning and executive functioning were borderline, and there were significant impairments with his memory, both in verbal and visual modalities. [The Applicant] also had difficulty with sustained attention on relatively simple computerised tasks, and he demonstrated impulsive tendencies.
He was subsequently commenced on Epilim with a gradual improvement in his mental state and he was less agitated and more engaging. His insight remained minimal, but he successfully completed overnight and weekend leave without obvious difficulty reported by his family. He stated that he planned to visit the Philippines in the near future but he was advised to delay this until he was reviewed by the community mental health team in the following few weeks.
The psychiatric diagnoses provided during his episode of care were:
1. Bipolar affective disorder.
2. Cognitive impairment; and
Previous or long-term diagnoses included paranoid personality traits and binge alcohol intake.
[Redactions made by the author of these reasons].
Evidence of Dr Hamidi, General Practitioner
Dr Hamidi joined the medical practice of the Applicant’s father in 1973 and has known the Applicant since that time and was his family doctor. He recalls that the Applicant was in great health and only required treatment for minor illnesses.[25]
[25] Transcript, 12 June 2018 at 106.
When the Applicant left home Dr Hamidi lost contact with him until he returned in 2013. The Applicant consulted Dr Hamidi on 21 November 2013 and Dr Hamidi has been the Applicant’s General Practitioner since that time. In his opinion, the Applicant will not recover from his present illness.
Dr Hamidi noticed “a great big change”[26] in the Applicant at the time of the consultation of 21 November 2013. He appeared very depressed and anxious. His condition has not changed since; it is just being kept under control.
[26] Transcript, 12 June 2018 at 106.
In a certificate dated 15 August 2014 Dr Hamidi recorded his diagnosis of the Applicant’s condition as stress and anxiety disorder and post-traumatic stress disorder caused by events at his former workplace.[27]
[27] Exhibit RR10 at 9.
Dr Hamidi referred the Applicant to Mr Hendrick for counselling. He does not agree with Mr Hendrick’s diagnosis that the Applicant suffers from bipolar II disorder.
Dr Hamidi also said that in reaching the conclusion that the Applicant’s condition was caused by his employment, he relied heavily on the history given to him by the Applicant and the temporal relationship between his becoming unwell when he was working at the ATO. He did not consider the records of the Applicant’s contact with the Community Health Centre in 2010 in reaching this conclusion.[28]
[28] Transcript, 12 June 2018 at 113.
Dr Hamidi disagreed with the opinion of Dr Moffatt.
Report of Dr Moffatt, Consultant Psychiatrist[29]
[29] Exhibit RR7.
Dr Moffatt assessed the Applicant on 1 September 2015 at the request of Comcare’s Solicitors. She provided a report dated 15 September 2015.
Dr Moffatt reported, in part:
The history suggests that there may have been times when [the Applicant] experienced an anxiety disorder early in his life and it is noted that his father had previously reported a history of [the Applicant] suffering from possible hypomanic episodes. There is a clear history of alcohol dependence and cannabis dependence and some suggestion of other illicit substance use. Medical practitioners were concerned about anxiety and mood symptoms prior to the workplace difficulties and marital difficulties resulting from threatened and actual violence also predated the workplace difficulties. There is also evidence of significant disorders of both mood and thought processes with psychotic symptoms leading to psychiatric hospitalisation on at least two occasions. It is noted that during both admissions [the Applicant] was deemed sufficiently ill to be detained under the Mental Health Act. There is also evidence of possible lifelong paranoid narcissistic personality traits, although it is difficult to clearly establish these in the presence of other Axis 1 disorders.[30]
[30] Exhibit RR7 at 17.
……….
In my opinion, there is sufficient evidence to suggest that [the Applicant] suffered pre-existing substance use and psychiatric difficulties prior to the period of employment in which he ceased working with the ATO.
The exact dates are unclear, but he may have been abusing various substances and exhibiting signs of anxiety and possible paranoia for as many as 20 years prior to ceasing work with the ATO.
The nature of his condition remains difficult to determine, and possible causative or precipitating factors could include substance use, genetic predisposition, or other stressors in his life.
5. Is the applicant's current condition contributed to in a significant degree, whether by aggravation or otherwise, by the applicant's employment?
If so, please describe the specific events or action at work, if any, that you consider contributed in a significant degree to the condition.
In my opinion, [the Applicant’s] employment did not contribute to his current condition to any significant degree. Many of his symptoms appear to have predated his difficulties at work.
Although he continues to believe that his employment with the ATO and subsequent dealings with Comcare are entirely responsible for his difficulties with stress and low mood, I find no evidence, other than [the Applicant’s] self report, to substantiate this claim. It appears clear that his mental illness predated the period of conflict within the workplace (April-May 2011). His symptoms may have been exacerbated by workplace stress, but it is unclear whether there was actual conflict and excessive workplace demands, or whether [the Applicant’s] occupational functioning was already declining and his perception of persecution within the workplace stemmed from his mental illness.
6. Are there other non-work related factors that contributed to the applicant’s condition? If so, please describe the non-work related factors, and their significance, if any to the condition.
Non-work related factors that possibly contributed to [the Applicant’s] condition include underlying mental illness and/or personality disorder, financial stress, relationship difficulties, substance abuse, and possible genetic vulnerability.[31]
[Redactions made by the author of these reasons].
[31] Exhibit RR7 at 22.
Evidence of Dr Chow, Consultant Psychiatrist
Dr Chow assessed the Applicant in December 2016 at the request of Comcare’s Solicitor. He provided reports dated 19 December 2016[32] and 12 November 2019[33] and gave evidence at the initial hearing.
[32] Exhibit RR3.
[33] Exhibit RR11.
On 16 December 2016 Dr Chow reported, in part:
I found [the Applicant] not forthcoming with his psychiatric and drug and alcohol history. There were number of attempts in minimising his mental health history and drug and alcohol use.
Furthermore his described activities and symptoms reported were inconsistent with how he presented during the assessment.
Due to the inconsistent reported symptoms as well as significant minimisation of history, I am not able to give a diagnosis confidently from the history he provided. He appeared well during the assessment. It is in fact my opinion that [the Applicant] is not currently suffering from an active psychiatric illness.
It is however understandable that he would be suffering from psychological distress from his ongoing financial difficulties and worries with his financial future.
Looking at the documentation provided over the last few years, he appeared to have been very unwell with paranoia, elevated mood and recurrent aggression in the past. However since assessment with Dr Moffatt, it appears that he has had a period of stability at least over the last 12 months since he has moved to Stockton.
It is my opinion that he is not suffering from any psychiatric condition that is related to his previous work difficulties.
Furthermore the reaction of his stress related to working under a new manager for only six weeks is inordinate and unusual. With the later developed significant psychiatric illness and unstable mental state, it is highly suggestive that he was suffering from an underlying psychiatric condition before he had his reported work difficulties with the manager in 2011.
There were documents in 2010 stating that he had relationship difficulties with his partner and referral to a mental service. He was also reporting that he was having a number of physical difficulties with injuries that he had in the past, just before he had issues with his manager in 2011. Those factors might have contributed to the development of a psychiatric condition leading to an inability to cope with the demands of a new manager and his subsequent time off work.[34]
[34] Exhibit RR3 at 7.
Dr Chow further reported that:
…… I agree with Dr Moffatt's assessment that there is a high likelihood of a pre− existing psychiatric condition. In my opinion it was briefly exacerbated by the stress related to new manager who started in 2011. However it has been five years down the track and he is not currently presenting with any convincing Axis I diagnosis today. Therefore it is my opinion that the exacerbation of symptoms has therefore ceased.[35]
[35] Exhibit RR3 at 13.
Evidence of the Applicant
The Applicant provided a statement dated 7 March 2018 and gave evidence at the initial hearing.
The Applicant denies that he suffered from a psychiatric condition prior to his employment by the ATO. He says that the only such condition from which he has suffered since is the anxiety and depression he suffered as a result of the conduct of his manager in 2011. He says that he has suffered from that condition continuously since.
In relation to the records of his interaction with the Community Health Centre in December 2010, the Applicant says that he made statements “to get in the door”[36] as he was trying to find his wife. He denies having been violent to his wife.
[36] Transcript, 22 March 2018 at 27.
The Applicant alleges that when his wife was away from their home she was being detained by the operator of a women’s refuge and told that if she did not sign documents for an apprehended violence order against him she could be “kicked out”[37] of Australia.
[37] Transcript, 22 March 2018 at 34.
In regard to records of his wife alleging he had been violent and affected by alcohol, the Applicant said that his wife would have complied with the wishes of those in authority, whether or not she understood what was being put to her.[38]
[38] Transcript, 22 March 2018 at 33.
The Applicant said that he was detained illegally in Manly Hospital in 2011. He said that the Police Officer involved had misrepresented what he (the Applicant) had said.[39] He said that he told Police that he had threatened others in order to get them to attend his premises.[40]
[39] Transcript, 22 March 2018 at 39.
[40] Transcript, 22 March 2018 at 40.
The Applicant denied having told Mr Hendrick that he had had problems with alcohol abuse and said that Mr Hendrick had misquoted him.[41]
[41] Transcript, 22 March 2018 at 43.
The Applicant denied that he told Dr Chow that he had used “ice” in about 2006 and denied that he had a history of cannabis use.[42] He said that he had occasionally used cannabis about 20 years ago.
[42] Transcript, 22 March 2018 at 49-50.
The Applicant has been convicted of driving while affected by alcohol on three occasions.[43]
[43] Transcript, 22 March 2018 at 45.
Evidence of Mr P, ATO fellow-employee
Mr P provided a Statutory Declaration made 19 February 2018 and gave evidence at the initial hearing.
Mr P stated in part:
During the period from 2004 until 2011, when [the Applicant] ceased working for the ATO, I worked with [the Applicant] on an almost daily basis in person for many years and via phone and email otherwise. We were always in regular contact regarding our duties in the same GST business line. Most of those years we worked closely together in person, in the same office, at adjacent desks either in the same team of a dozen staff with the same manager or in advisory and collaborative matters for co-located teams.
[The Applicant’s] stable disposition, logical approach, management experience and ability to resolve complex issues made him one if (sic) the most experienced staff members when stumped with complicated technical or procedural issues.
In all those years I can confidently state [the Applicant] had no alcohol or ay (sic) other substance abuse issues and no-one ever even mentioned anything resembling the contrary. There were no indications otherwise. I don’t recall [the Applicant] even drinking alcohol at numerous work lunches etc and have no reason to believe he had work issues indicating otherwise.
He was reliable, rational, pleasant and as good to work with as one could wish for.
Likewise, it is not possible for me to entertain thoughts that [the Applicant] had any abnormal psychological issues or depression. He was always relaxed, in complete control, more than approachable, popular and extroverted. [The Applicant] was always a happy person with a positive attitude, a can do approach with the ability to lighten up any staff meeting or anyone’s day with an appropriate joke. [The Applicant] always provided a solution.
I do not believe it possible to work so frequently and closely located with someone without noticing an indication of abnormal psychological issues or suffering from noticeable alcohol or substance abuse issues.
However, in the last month before [the Applicant] left work he mentioned and seemed unusually concerned with new duties and added pressure trying to complete his normal duties under the new management structure.
From 2008 onwards, Mr P’s interaction with the Applicant lessened as they were working on different floors and in different business lines.[44]
[44] Transcript, 23 March 2018 at 67.
Statutory Declaration of Dr A., Applicant’s Father
Dr A. provided a statutory declaration made 17 July 2014.[45]
[45] Exhibit RR9 at 165.
Dr A. stated that he had not observed any evidence that the Applicant had an alcohol abuse or binge drinking problem since he began living with him in October 2013. In his opinion the Applicant was suffering from a state of anxiety and depression “caused significantly from events at work several years ago”.
CONSIDERATION
The Applicant’s argument
The Applicant’s argument that he did not suffer from any psychiatric conditions prior to his difficulties with his manager at the ATO is not supported by the evidence. Based on the report of the incident on 20 December 2010, the report of his hospitalisation in December 2011 (including his wife’s statements as to his past conduct) and the opinions of Dr Moffatt and Dr Chow, I am satisfied on the balance of probabilities that the Applicant did suffer a psychiatric condition or conditions prior to the appointment of his new manager in March 2011.
The Applicant claims that he has been misrepresented or misunderstood in the reporting of his condition and the history he gave to various medical professionals, including his treating Psychologist, Mr Henrick, and Dr Chow. It is unlikely that this occurred as frequently as the Applicant believes was the case.
Further, he argues that the statements made by his wife as to his conduct while living overseas was inaccurate as a result of her propensity to agree with whatever proposition was put to her by an official. It is extremely unlikely that an official would concoct such detail in order to put the proposition initially. The Applicant also alleges that a Police Officer incorrectly reported the incident in December 2010.
I accept the opinion of Dr Moffatt that the Applicant had a history of alcohol dependence and cannabis dependence and symptoms of anxiety and mood disorder prior to the incident in his workplace. This is supported in part by the clinical notes of Dr Saunders that the Applicant presented with anxiety symptoms in October 2010 and by the diagnosis made by Dr Burek in March 2014.
Mr Henrick noted that alcohol could have been a problem at the time of the events at the ATO. He noted also that the Applicant told him he had been hospitalised for about three months in the 1980’s or 1990’s. On the basis of the notes of Mr Henrick I am satisfied that this admission was for a psychiatric condition.
I conclude that the Applicant is an unreliable historian. He was reluctant to provide Mr Henrick with a complete history. Dr Chow reported that the Applicant was not forthcoming with his history and that there was “significant minimisation of history”[46] by him. I acknowledge this may be the result of the passage of time and the effects of his mental state.
[46] Exhibit RR3 at 7.
In July 2011 Dr Allnutt was of the view that there was “relatively little” evidence that the Applicant suffered a pre-existing or underlying condition. His information as to the incident in December 2010 appears to have been limited to a note of “domestic tension” and a brief description by the Applicant after the consultation.[47] Further Dr Allnutt formed his opinion prior to the Applicant’s admission to hospital in November 2011 and the records of that admission.
[47] Exhibit RR9 at 55.
Dr Hamidi concluded that the Applicant’s stress and anxiety disorder and post-traumatic stress disorder were caused by the incident in his workplace. However, this conclusion was based on the temporal relationship between the employment and the development of the disorder and the history given by the Applicant. I do not consider Dr Hamidi’s opinion persuasive as the Applicant has not been a reliable historian and he was not a patient of Dr Hamidi during several years prior to 2014. Other than the temporal relationship, Dr Hamidi did not explain why he was of the opinion that there was a causative factor between the condition suffered by the Applicant and his employment by the ATO.
I have considered the evidence of Dr A., the Applicant’s father. However, it is of limited value as he refers to the time when the Applicant returned to live with him, about two years after the workplace incident.
The evidence of Mr P does not assist me as he had limited contact with the Applicant after 2008 and can only relate his observations as a layman, not a medical professional.
Comcare’s argument that the Applicant did not suffer an injury arising from his employment by the ATO in April-May 2011
As Comcare is alleging that the factual basis of its previous acceptance of liability to compensate the Applicant in respect of the injuries of Depressive Disorder and Anxiety State was incorrect, it is incumbent on Comcare to provide evidence to support such a finding.
In Telstra Corporation Ltd v Hannaford,[48] the Full Court of the Federal Court said, in part:
57 In my opinion, it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part...’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
[48] (2006) 90 ALD 263; [2006] FCAFC 87 at [57] per Conti J, Heerey and Dowsett JJ agreeing.
Dr Burek assessed the Applicant in March 2014. His diagnosis was that the Applicant suffered from alcohol abuse and dependence with associated cognitive impairment and paranoid ideation which was present when he first met his new Manager at the ATO. However Dr Burek also expressed the opinion that the Applicant’s compensable conditions of Depressive Disorder and Anxiety State caused by his employment had resolved. I read this report as Dr Burek accepting that there had been a worsening of symptoms arising from the workplace incident.
In December 2016 Dr Chow was of the opinion that the exacerbation of the Applicant’s condition arising from his employment had ceased. He appears to accept that there was a contribution by his employment for some time and to some extent.
Dr Moffatt did not express the opinion that the workplace incident did not contribute to the Applicant’s condition, but rather, that it did not contribute to a significant degree. I do not know the definition of “significant” used by Dr Moffatt in reaching this conclusion.
In view of the limited evidence as to the degree to which the workplace incident contributed to an aggravation of a pre-existing condition suffered by the Applicant, I am not satisfied that the factual basis of the initial decision accepting liability was incorrect.
Comcare’s argument that, by no later than 20 May 2014, the workplace incident ceased to make a significant contribution to the condition suffered by the Applicant
Both Dr Burek and Dr Moffatt provided detailed reports and reviewed the relevant information as to the Applicant’s history. They both came to the conclusion that the workplace incident no longer contributed to ailment or ailments suffered by the Applicant.
In 2014 Dr Burek was of the opinion that, at that time, the Applicant’s symptoms resulted from cognitive impairment and paranoid personality traits, both probably caused by alcohol consumption. As previously referred to, Dr Moffatt considered that there had never been a significant contribution by the workplace incident, although he does acknowledge that there may have been an exacerbation of symptoms. He referred to several non-work-related factors that may have contributed.
Dr Chow examined the Applicant in December 2016. In his opinion the Applicant was not suffering from any psychiatric condition related to the difficulties he experienced in his employment and that a pre-existing psychiatric condition was briefly exacerbated by his experience with the new manager.
There is insufficient evidence to suggest that the Applicant’s condition has changed since he was assessed by Drs Burek, Moffatt and Chow. I accept their opinions. On that basis I am satisfied that prior to 20 May 2014 the incident at the Applicant’s work had ceased to make any contribution to the medical conditions suffered by the Applicant at that time or at any time since that date.
I have considered the opinion of Dr Hamidi. However, for the reasons already stated, I do not consider that his opinion should be preferred over the opinions of the Psychiatrists to which I have referred to earlier in these reasons. Although Dr Hamidi refers to observing “a great big change” in the Applicant’s condition when he saw him in November 2013, the basis of his opinion that this change was caused by his employment at the ATO is unclear.
For the reasons already stated, I do not consider that the evidence of Dr Allnutt, Dr A and Mr P should be preferred to that of Drs Burek, Moffatt and Chow.
Determination of the issues
It follows from the finding I have made in paragraph 89 of these reasons that, as at the date of the decision in this application, Comcare is not liable to compensate the Applicant in respect of the cost of any medical treatment obtained by him since 20 May 2014. For the same reason, the Applicant has not been incapacitated for work as a result of the compensable injuries on, or at any time since, 20 May 2014.
G. CONCLUSION
The reviewable decision, being the decision of Comcare made 16 July 2014 affirming the decision to cease payments to the Applicant for medical expenses and loss of income from 20 May 2014, will be affirmed.
I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of
............................[SGD]............................................
Associate
Dated: 22 January 2021
Date(s) of hearing: 21 April 2020 Date final submissions received: 6 July 2020 Applicant: In person Counsel for the Respondent: K Slack Solicitors for the Respondent: B Audsley, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Appeal
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Remedies
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