ZZRP and Comcare (Compensation)
[2018] AATA 2240
•16 July 2018
ZZRP and Comcare (Compensation) [2018] AATA 2240 (16 July 2018)
Division:GENERAL DIVISION
File Number: 2014/4443
Re:ZZRP
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment
Date:16 July 2018
Place:Sydney
The reviewable decision is set aside and the matter remitted to Comcare for the quantification of monetary entitlements of the applicant.
...................................[SGD].....................................
Deputy President B W Rayment
Catchwords
COMPENSATION – whether applicant is still suffering the effects of his previous compensable condition – psychological condition – depressive disorder and anxiety state – claimed cause being workplace stress and bullying – found consistent pattern of diagnosis – reviewable decision set aside and remitted for quantification of monetary entitlements
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 20
REASONS FOR DECISION
Deputy President B W Rayment
16 July 2018
On 20 May 2014, a review officer of Comcare decided that the applicant’s workers compensation payments should be terminated because he no longer suffered from any compensable condition, on the basis of a medical report commissioned by Comcare from Dr Burek, consultant psychiatrist. In the argument and evidence in this case, Comcare has raised a great number of other issues in support of the reviewable decision. The applicant has been examined by number of specialists, especially medico-legal specialists qualified by Comcare, who have mostly expressed conflicting views about him. He has also been hospitalised on two occasions over the relevant period, and the hospital notes have been produced on summons.
The applicant, who has been given a pseudonym without objection from the respondent for reasons which I indicated orally, applied for review of that decision. I must consider whether that decision was the correct or preferable decision, and if not, whether the applicant has entitlements under sections 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), in respect of the intervening period. I am not concerned with the quantification of any such entitlement.
The applicant was born in 1961, obtained accounting qualifications by 1984 from TAFE with some university subjects, and after spending time in various jobs, in 1999, he was employed by the Australian Taxation Office (ATO). He continued that employment until 2012, when he was retired on grounds of invalidity. He last worked in 2011.
He claimed workers compensation on 31 May 2011, and his claim was granted in July 2011, when Comcare had investigated to some extent, the allegations which he made about the events which took place during his employment, and had obtained a report from Dr Allnutt, consultant psychiatrist.
I will take his history insofar as it appears from the evidence in chronological order.
CHRONOLOGY OF THE APPLICANT’S CONDITION
I have heard from two persons who knew him before 2011. One of those persons is Mr Penman, a work colleague at the Tax Office. He described the applicant in the years prior to May 2011 (except the last month) as a good performer, stable, reliable and rational, and as a person to whom others went for help or advice. He said that in the last month before he left, he seemed unusually concerned with new duties and the added pressure trying to complete his new duties under the new management structure. Mr Penman worked at the same desk from 2004 to 2008, and later on the same floor with the same manager. When he moved his office to another floor, he came up to the applicant’s floor frequently and would chat with the applicant from time to time in the period of 2008 to 2011.
He also said that he saw no signs of any alcohol or drug abuse, or any abnormal psychological issues or depression in the years up to 2011. He said that he noticed that he appeared stressed in the last month before he ceased to work in the Tax Office. That month was between 14 April and 11 May 2011.
The other person from whom I heard was his current general practitioner, Dr Howard,[1] who knew the applicant from when he was a young man. Dr Howard became an assistant doctor in the practice of the applicant’s father (the latter having retired some years ago) and knew him from the 1970’s until the applicant left the area and came to Sydney, and later met him again when he returned to the area of Dr Howard and the applicant’s father in late 2013, and he has been his general practitioner since that time. In the earlier period, Dr Howard described the applicant as “perfectly fine”. He treated the applicant and his mother because the applicant’s father did not treat members of his family and got to know him well. He knew him personally and professionally. He remembers no issues with the applicant’s mental health at that time. He said that when the applicant came back in 2013, he was really shocked to see him. He was “not the same person I used to know”. He said that over the time since he returned, there has not been a great change in his anxiety and depression, and is not optimistic that there is going to be a change in the future, even the distant future. He obtained a history from the applicant when he started to treat him in about late 2013 which included reference to the problems which he had at work in 2011.
[1] ‘Dr Howard’ is a pseudonym.
He said that although he has no specialist qualifications in psychiatry or psychology, mental health is his area of interest, and is something he has studied and about which he has gone to workshops. I will return to Dr Howard’s evidence later in these reasons, but note that in his evidence in chief, he said that he had no doubt that the work was the cause of all the applicant’ s problems and that it has been a condition of his mental health issues ever since.
In 2009, the applicant took long service leave from the Tax Office for 10-12 months and returned to work in about June 2010. He brought back his present partner, who is a Filipina. They had some domestic issues in late 2010. She was out of the home for some four days and the applicant at first said he was trying to find her, and later said that he was trying to find out what was going on, and said that he believed she was being kept against her will at the Queenscliff Community Health Centre. The applicant himself was never admitted to that institution and was cross-examined about the terms of a note of a telephone call written by a nurse from that institution. That note is in evidence.
The only oral evidence which I have about the matter comes from the applicant in cross-examination on the first day of the hearing. His evidence was probably unreliable, or at least exaggerated, and I was asked to reject it on credibility grounds. Having heard the evidence, I am reluctant to reject it on credibility grounds, because it seemed to me that I was hearing evidence that may be better understood as evidence affected by the applicant’s present psychological condition. He was taken back to events which were troubling at the time, and to some extent, he may have been re-living those events.
During cross-examination, Dr Howard was asked about whether he was acting on the assumption that the applicant was being honest with him. He replied “not all the time, no” and explained that he would not say that he was lying either because “when they have such a figure of stress, anxiety, depression, their mind wanders. Sometimes they don’t know what they’re talking [about] themselves and that actually shows that the person is very mentally ill.” Perhaps that description explains some of the evidence which the applicant gave when cross-examined about the nurse’s note.
The note records that the applicant said that his GP (Dr Saunders at that time) wanted him assessed and is querying bipolar disorder and that he had a letter from his GP. Some discussion took place, which according to the note, was about the possibility of his admission and its cost. Reference was made in the note to the applicant reporting an alcohol intake of six beers each Friday afternoon and cannabis use daily for 20 years, stopped one month previously.
Reference was also made to the applicant’s wife thrown out on the street with her bags. It also records some domestic violence towards his wife. The note records no previous psychiatric treatment, which the applicant confirmed was correct.
It records that the wife returned home that day, but has yet to talk to him.
He denied in the witness box, almost all of the information recorded about his drug and alcohol use, and denied that there had in fact been any domestic violence. Drug use at the levels reported is not supported by the evidence of Mr Penman. The applicant advanced an alternative explanation for the purpose of his call, namely to find out what had happened to his wife. The note provides almost no support for that explanation, although as I have said, there are some references to the wife.
The note was not followed by any attendance at the community health centre or, so far as appears, any other appointment in or about 2010 with a psychiatrist to explore whether he had a bipolar disorder. Later, evidence from Dr Vickery included a remark made by the GP to him that he had thought the applicant might have a bipolar condition, which tends to confirm the note in that respect. A note from the GP, Dr Saunders, records that the applicant first presented with anxiety symptoms at time of domestic tensions in October 2010, and that he was then referred to Queenscliff Community Health Centre.
A report of Medibank Health Solutions of March 2011, when the applicant was assessed following a recurrence of back pain (which does not affect the present review), includes a note that the applicant likes his current job and is familiar with all his duties. That note records the position of the applicant several weeks before the workplace events referred to in his workers compensation claim.
He was unfit for work because of back pain until 11 April 2011 and then returned to work. About a month later in May 2011, he was off work and that was the last time he was at work. He first encountered the new supervisor with whom he had difficulties in late April.
EVIDENCE BEFORE THE TRIBUNAL
The investigations made by Comcare about his employment are described in the reviewable decision. The applicant alleges that he was bullied and harassed in the workplace over a period in 2011, and was required to do more work than he could manage. He apprehended that he was being forced out of his job. No primary evidence has been led before me by Comcare about those events in this proceeding, and the applicant was not cross-examined to suggest that his account of those events was not in substance correct. The applicant appears to me to have consistently maintained from 2011 to date, to treating doctors and medico-legal specialists that the events took place, and I see no reason not to accept that the events which led him to cease work involved substantially increased work pressure and involved what he regarded as bullying and harassment.
The medical certificates from Dr Saunders from June 2011 until August 2011 and in the last quarter of 2012 describe the applicant’s condition as anxiety state, and the June and July 2011 certificates attribute the condition to “claimed bullying and harassment by new manager”. In a later note, he explained that his May 2011 medical certificate (which merely referred to a medical condition) was also granted by him because of the applicant’s anxiety state as a result of the claimed bullying and harassment. Dr Saunders’ note of 16 June 2011 suggests that the stress at work may have aggravated the anxiety he observed in October 2010.
The workers compensation claim was lodged on 31 May 2011, and in July, he saw Dr Allnutt, a consultant psychiatrist to whom the applicant was referred by Comcare. Dr Allnutt took a history of the workplace events and noted that he had never abused drugs and was not abusing drugs when he saw him, and that he was not using alcohol. Dr Allnutt asked the applicant about domestic tension in 2010 and was told that it was:
a domestic tiff with his partner who he could not find for four days,. He was extremely anxious about her but when he found out she had contacted his doctor he was relieved. The incident was over by Christmas. He denied experiencing any depressive anxiety symptoms thereafter, that is, prior to the workplace events of April/May.
Dr Allnutt concluded:
In my opinion, at the time that I saw [the applicant] he was manifesting symptoms consistent with a Depressive Disorder characterised by a depressed and anxious mood with disturbances in sleep, reduced appetite, energy, concentration, motivation, poor self-esteem, difficulties with decision making, loss of interest in activities and a degree of anhedonia. In addition to this, he was manifesting symptoms of anxiety with associated intermittent panic attacks characterised by dizziness, light headedness, sweatiness and shakiness these last having occurred approximately 2-3 weeks ago.
There is no evidence of psychological distress until [the applicant’s] new manager came to his position and joined the ATO in about August 2010. Since then he describes deterioration in his mental state with the emergence of a number of depressive and anxiety symptoms.
Following receipt of Dr Allnutt’s report, Comcare admitted the applicant’s claim on 27 July 2011.
On 20 July 2011, Dr Vickery, another consultant psychiatrist, assessed the applicant for the ATO. Dr Vickery answered the following question:
Does [the applicant] suffer from any Medical condition(s) which may impact upon his generally in the workplace? If so what is your prognosis in relation to this condition(s)? (Please do not include specific diagnosis in your response, but provide a general indication if a medical condition is impacting upon the employee in the workplace.)
The doctor’s answer was as follows:
[The applicant] suffers from a psychotic disorder associated with paranoid ideation and an impaired thought process. The prognosis is guarded as he is not undertaking psychiatric treatment and does not experience any insight.
As noted above, Dr Vickery spoke to Dr Saunders and in a supplementary report, Dr Vickery said that Dr Saunders “agreed that at times he thought [the applicant] was paranoid.”
On 19 December 2011, Dr Kipling Walker wrote a report for the ATO about his investigations of October 2011, finding the applicant unfit for a rehabilitation program. He recorded that Dr Saunders had remarked that the applicant’s main problems have been due to tobacco smoking, alcohol and cannabis use.
Dr Walker remarked that the applicant might have an organic condition (for example dementia) and referred to the need for blood tests and a CT brain scan before rehabilitation could be considered. Dr Vickery said about drug and alcohol use, “He last drank alcohol a couple of weeks ago. He was convicted of drink driving many years ago. He does not use illegal drugs.” As to psychiatric diagnosis, Dr Vickery wrote: “unclear”.
The applicant had two periods of hospitalisation, the first in November 2011 and the clinical notes have been produced on summons and tendered by the respondent. The applicant was cross-examined about the circumstances of the admission and some of the content of the notes on the first day of the hearing. The admission was involuntary, brought about by police officers, and the applicant was detained as a mentally ill person. It followed some strange ‘000’ calls by him and other events indicating a lack of touch with reality.
The notes include remarks made to hospital staff by the applicant’s partner and his father, neither of whom referred to drug abuse. The partner referred to some instances of intoxication, which the applicant denied. She also referred to instances of domestic violence, which the applicant has also denied. The notes include reference by the applicant to stress from the employment events, and to money worries, including that his partner has refused to contribute to rent. He made a number of complaints at the hospital about the staff, and sought a second opinion about his mental condition because he disputed the involuntary admission. A diagnosis of 7 November 2011 was “probable psychotic episode in context of recent work and domestic stresses”. The diagnosis of 11 November 2011 was “brief reactive psychotic illness with some manic features in a 50 year old single male who feels overwhelmed by multiple recent life stressors. Alcohol abuse possible factor his partner claimed (he denies this).” Notes of 14 November 2011 with three persons present including Dr Pennington record “diagnostic dilemma” and there follows certain shorthand, only some of which is legible including the words apparently referring to possible drug and alcohol or alcohol abuse, possible organic psychosis, paranoid, improved when on epsilon.
He was discharged on 12 December 2011. The discharge summary describes the hospitalisation as the first contact with mental health services. He is described as previously high functioning but having been on workers compensation for six months due to bullying/harassment. Some other features of the summary are that his partner described him as having depressive episodes over the last six months since he stopped working. The notes say he normally does not drink alcohol and was last intoxicated about three months prior to the admission. The partner referred to some instances of intoxication and aggression towards others when they were in the Philippines. The summary records that it was unclear whether the episode which led to his admission was isolated or part of longer term paranoia. Apparently with medication during his admission, he gradually improved, such that he was allowed successful overnight and weekend leave before his discharge, although his insight remained minimal. The summary refers to psychometric tests administered during his admission showing some cognitive impairment at that time, with significant impairment to memory.
Following his discharge, the applicant saw Dr Pennington, one of the hospital specialists, on several occasions, but the Tribunal was provided with no report from the doctor.
The applicant was seen again by Dr Walker in February 2012. The applicant had few memories of the hospital admission. Being detained at the Manly Hospital scared him and knocked his confidence.
Dr Walker diagnosed the applicant with bipolar 1 disorder and possible early onset dementia. He observed that the cognitive impairment revealed during his hospital admission of 2011 may have been contributed to by the sedating antipsychotic and mood stabiliser medications he took at the time.
Medical certificates given to him by various general practitioners from 8 September 2012 up to May 2013, if they nominated a condition, generally described his condition as chronic anxiety and depression.
In August 2013, he was again admitted to Manly Hospital. The discharge notes are only before me in part, and note that the applicant had a previous diagnosis of bipolar affective disorder. Following another report to the police, he was brought to the hospital, again involuntarily. His mental state again improved with treatment and he was made a voluntary patient several weeks after his first admission. He was given day leave and later overnight leave and was discharged following a discussion with a treating psychiatrist who was not called before me.
By November 2013, he was seeing Dr Howard after he returned to the area where he first met him. Dr Howard wrote a medical certificate stating that he had a continuing depressive disorder and anxiety, and repeated that statement in a medical certificate of February 2014. Dr Howard still treats the applicant. He resisted any suggestion that the applicant has a bipolar condition, and said that he had been through his record a number of times with him. Under cross-examination, he stated his understanding that everything started with the Tax Office and that he is still unwell.
On 10 February 2014, Comcare arranged for the applicant to be examined by Dr Burek, a consulting psychiatrist doing medico-legal work. He wrote a report of 19 March 2014 and was provided with a referral letter from Comcare, Dr Walker’s reports, Dr Allnutt’s report of July 2011, and several other documents. The applicant told him that he had had no alcohol since 2011, ten cigarettes a day and no cannabis. He stated that he suspected that, despite his protest, he continues to drink elevated levels of alcohol, and expressed the view that he has cognitive impairment which is probably related to alcohol, and that his paranoia is again related to alcohol intake. Dr Burek stated that he saw no signs of bipolar affective disorder, hypomania or depression. He said that his current condition owed nothing to the Tax Office, and on the balance of probabilities, his current conditions relate to the natural progression of an underlying condition, namely alcohol abuse which he described as “binge drinking”.
This report led to a decision of Comcare to terminate workers compensation payments, which led to this review.
The applicant was then living at his father’s house and the father gave him a statutory declaration which was sent to Comcare stating that he had not seen the applicant drink more than five glasses of beer over the previous eight months, and that he could state with certainty that his son had no alcohol abuse or binge drinking problem, and that he had seen him daily since October 2013 since he moved in with him in October 2013. The declaration was dated 17 July 2014, the day after the reviewable decision.
In the submissions of Comcare, I was told that Comcare did not say there was a diagnosable condition of alcoholism or drug dependence, but that it is a complicating factor in terms of identifying what he is suffering from and what relation that had to his employment. Comcare did not call Dr Burek to give oral evidence before me, and instead elected to call Dr Chow, another consultant psychiatrist, to give evidence, who had examined the applicant several years later.
In 2015, Comcare referred the applicant to Dr Moffatt and her report was tendered, but she was not asked to give evidence. She expressed the opinion that the applicant currently has some mild depressive symptoms and some self-reported anxiety, with some evidence of narcissistic and paranoid personality traits. She was not confident that he had any significant mental illness. She also administered some psychometric tests and noted that there were no significant deficits with his short-term memory, as would typically be seen in severe cases of alcohol-related brain damage or dementia. She expressed significant diagnostic uncertainty with respect to the applicant’s condition.
In 2016, the applicant was referred by Comcare to Dr Chow, who wrote a report concerning his assessment of the applicant on 2 December 2016. He found that the applicant significantly minimised his history and was not able to give any diagnosis confidently with the history he provided. He added that he appeared well during the assessment and that in fact, his opinion is that at that time, he was not suffering from an active psychiatric illness. Dr Chow was cross-examined by the applicant who elicited from him that his report was intended to do more than indicate how he presented on 2 December 2016 in the course of one consultation.
My own observations of the applicant on 22 and 23 March 2018 were quite different on each day. On 22 March, when he was under cross-examination about his hospitalisations and the events which led him to Manly Hospital, and about the events which led him to telephone Queenscliff Community Health Centre in 2010, I gained the impression that having to relive those events brought out in him at times, some improbable and bizarre recollections. On the next day, when he cross-examined Dr Chow and represented himself in this review, I saw him as behaving normally and rationally, and the same was true of my observation of him on the third day of the hearing in June 2018. Dr Chow may have experienced the applicant on one of his better days.
In 2017, Dr Howard referred him to a psychologist, Mr Henrick. Mr Henrick’s clinical notes were caused to be produced on summons by Comcare and tendered before me. Much of the material in those notes related to day-to-day concerns expressed by the applicant and does not seem to me to be particularly relevant to the issues in this case. Mr Henrick had him do some psychometric tests on several occasions. On the first such test administered on 7 September 2017, his test results indicated depression, anxiety and stress scores in the “extremely severe” range. On 6 October 2017, his scores remained in the extremely severe range with the scores on depression and stress worsening. His test results on the personality assessment inventory (PAI) test included a very elevated score for paranoia, hypervigilance and persecution. He described the PAI results as fitting well with the profiles of PTSD, paranoid delusions and schizophrenia groups, although he was not prepared to make a firm diagnosis of any of those conditions.
In addition to telling Mr Henrick about the events of his workplace in 2011, he told him about the stress that this proceeding has caused him, which was also a feature of his presentations to other medical professionals including at Manly Hospital.
CONSIDERATION OF THE EVIDENCE
The history reveals a rather consistent pattern of diagnosis by treating general practitioners of depression and anxiety, from May 2011 until the present time. As to the reliance by Comcare in 2014 upon Dr Burek’s report to the contrary, and his nomination of alcohol induced cognitive deterioration and paranoia, that report is largely unsupported in the reports of other specialists and is unsupported by the statutory declaration of the applicant’s father. I am inclined to reject that report.
I was impressed by Dr Howard’s evidence, which is also consistent with that of a number of other persons who treated the applicant. Dr Howard attributed the depression and anxiety mainly to the events in the workplace of 2011, and I conclude that those events caused the depression and anxiety, and still do so. The evidence of Mr Penman suggests that no such condition was evident prior to April 2011, and the diagnosis of depression and anxiety was confirmed in 2011 by Dr Allnutt. More recent evidence to the same effect appears from the results of psychometric tests administered by Mr Henrick, and Dr Moffatt observed mild depression and a degree of self-reported anxiety.
As to the possibility of paranoia, or paranoid ideation, the causes of the hospitalisations of 2011 and 2013 seem to have been preceded by psychotic episodes, albeit that on each occasion, relatively short term medication seems to have been successful in alleviating the condition on each occasion, and it seem not to have returned. Whether the psychotic episodes of late 2011 and of 2013 were themselves episodes for which the applicant was to some extent predisposed by his anxiety and depression, does not appear from the evidence before me.
I am not satisfied to find that the applicant has or had any bipolar condition on the evidence before me, despite some isolated references in the evidence to that diagnosis.
As I have said, I am not satisfied that alcohol use accounts for his current condition or for the stresses he experienced in the workplace, and the evidence of daily cannabis use self-reported on the telephone in 2010 to the Queenscliff Community Health Centre may possibly have been falsely reported, as he rather suggested. The applicant has not self-reported any such use since that time, although it was a matter about which he was regularly asked. Some instances of cannabis use appear from hospital notes at the Manly Hospital, but his current condition is not attributed to that circumstance by his current treating doctor and is not reported by others who have been in regular contact with him. It does not appear from the evidence to my satisfaction that any such cannabis use affects his current or any former condition.
DECISION
In the result, the reviewable decision is set aside and the matter remitted to Comcare for the quantification of monetary entitlements of the applicant.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment
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Associate
Dated: 16 July 2018
Date(s) of hearing: 22-23 April 2018, 12 June 2018 Applicant: In person Counsel for the Respondent: Mr B Dube Solicitors for the Respondent: Mr B Dean, Australian Government Solicitors
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