Sheikh v Australian Postal Corporation [2005] FCA 1819 (22 December 2005)

WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – appeal from Administrative Appeals Tribunal – appellant suffered a compensable lower back injury – commenced return to work program – appellant lodged a number of claims for compensation relating to a depressive illness and drug overdose – whether appellant suffered from a compensable psychiatric ailment – whether appellant was capable of working full-time – whether Tribunal erred in its interpretation and application of s 14(2) of the Act – whether Tribunal failed to consider the central contentions advanced by appellant in relation to her claim for compensation for a drug overdose

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14(2), 41
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 referred to
Apthorpe v Repatriation Commission (1987) 77 ALR 42 referred to
Wilshire v Essex Area Health Authority [1988] 1 All ER 871 discussed
Hart v Comcare [2005] FCA 16 referred to

YASMIN SHEIKH v AUSTRALIAN POSTAL CORPORATION
NSD 1422 OF 2005

TAMBERLIN J
SYDNEY
22 DECEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1422 OF 2005

BETWEEN:	YASMIN SHEIKH APPELLANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	22 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. There is no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1422 OF 2005

BETWEEN:	YASMIN SHEIKH APPELLANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	22 DECEMBER 2005
PLACE:	SYDNEY

2 The Tribunal affirmed three determinations made by the Australian Postal Corporation ("the Corporation") that:

3 Pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), this appeal can only be brought on a question of law. That requirement is strictly applied so that an appeal on a wrong conclusion of fact or a preference for the evidence of a particular witness will not usually provide a basis for an appeal: see Waterford v The Commonwealth [1987] HCA 25; (1986) 163 CLR 54 at 77-78 per Brennan J; Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 53 per Davies, Lockhart and Gummow JJ.

4 There are four primary issues raised on the appeal. First, whether it was open to the Tribunal to affirm the Corporation’s determination that Ms Sheikh did not suffer at any relevant time from any compensable psychiatric ailment. Secondly, whether it was open to the Tribunal to affirm the Corporation’s determination in relation to the hours that Ms Sheikh was capable of working. Thirdly, whether the Tribunal erred in law in its interpretation of s 14(2) of the Act and its application of that provision in the present case. Finally, whether the Tribunal failed to consider the central contentions advanced for Ms Sheikh in relation to her overdose on 4 March 2003.

5 In May 1997, whilst employed by the Corporation, Ms Sheikh suffered a compensable lower back injury. She subsequently underwent three serious spinal operations on her lumbar spine. Ms Sheikh was paid compensation under the Act, including permanent impairment payments based on assessments as to the extent of impairment according to the Comcare Guide. She commenced a return to work program on limited hours with certain restrictions in June 2000.

6 On 18 December 2001, Ms Sheikh lodged a claim for compensation relating to a depressive illness. Ms Sheikh claimed that, during a conversation with her rehabilitation officer, unreasonable pressure was placed on her to increase her working hours and, as a consequence, she took a drug overdose. On 11 February 2002, the Corporation denied liability to pay compensation for the depressive illness and this was affirmed in a reviewable decision dated 24 May 2002.

7 On 11 December 2002, the Corporation made a determination that required Ms Sheikh to enter into a return to work program that would see her gradually upgraded to full working hours by 15 March 2003. Ms Sheikh was notified of this determination during a meeting with her manager and her rehabilitation officer on 11 December 2002. This meeting became heated and differing accounts were given by the persons present of the circumstances of the meeting. Ms Sheikh took a further drug overdose after the conclusion of this meeting and was treated in hospital. Ms Sheikh sought reconsideration of the determination that she must enter into a return to work program. Before the reconsideration was completed by the Corporation, a workplace meeting was held on 4 March 2003 to discuss the events of the earlier meeting. This later meeting also became heated and Ms Sheikh took a third drug overdose.

8 On 26 March 2003, Ms Sheikh lodged a claim for compensation for the drug overdose, seizures and depression occurring on 4 March 2003. On 3 April 2003, the Corporation denied liability on the basis that the "injury" claimed for was intentionally self-inflicted and, pursuant to s 14(2) of the Act, compensation was therefore not payable.

9 On 28 April 2003, the Corporation made a reviewable decision affirming its earlier determination concerning the rehabilitation program.

10 On 14 May 2003, the Corporation decided that, from 5 May 2003, the appellant’s entitlements to incapacity payments would be calculated on the basis that she was essentially able to earn her normal weekly earnings in suitable employment. Upon a request by Ms Sheikh for reconsideration, the Corporation made a reviewable decision on 21 May 2003 affirming this determination.

11 A final reviewable decision affirming the determination that compensation was not payable for the appellant’s overdose, seizures and depression occurring on 4 March 2003 was made on 14 August 2003.

12 Ms Sheikh applied to the Tribunal for review of the reviewable decisions made by the Corporation.

13 On 22 July 2005, the Tribunal, constituted by Dr J D Campbell, affirmed the three determinations referred to in par 3 above but set aside a determination affirming the fixing of the rehabilitation program which was due to commence on 13 December 2002.

15 The Tribunal accepted the opinions of Dr Walden (a consultant psychiatrist) and Dr Roldan (a consultant psychologist) that Ms Sheikh had not had a psychiatric disorder or condition and that her inappropriate response to situational circumstances were a consequence of a personality style with maladaptive coping mechanisms. The Tribunal noted that an evaluation test suggested that Ms Sheikh was likely to exaggerate and over-report her clinical symptoms. It considered that Ms Sheikh’s personality style pre-existed the back injury, as evidenced by the opinions of the psychiatrists, and referred in its reasons to there being evidence of such a personality style in Ms Sheikh’s explanation as to why she believed her application for compassionate leave was appropriate. By reason of her personality style being pre-existent, the Tribunal found that Ms Sheikh’s consultant and attending clinicians, as well as her employer, would experience difficulty in understanding the continuing symptomatology of her physical injury and subsequent treatment experiences in the face of the maladaptive coping mechanisms that had been "so much in evidence". The Tribunal considered that the personality style giving rise to the maladaptive coping mechanisms was a given constant and that such coping mechanisms are behaviourally manifested when a situational circumstance creates stress and conflict. The Tribunal accepted that the maladaptive coping mechanisms are triggered in response to stressor situations with the individual retaining control over the choice of the behavioural response.

16 The Tribunal noted that various clinicians, including Drs Bentivoglio, Chase and Maxwell, mentioned that Ms Sheikh had been depressed. The Tribunal further noted that Dr Baker, in his various reports, had diagnosed Ms Sheikh as having a depressive disorder. After a comprehensive discussion of the evidence, the Tribunal did not accept Dr Baker’s diagnosis of depressive disorder and preferred the opinions of Drs Walden and Roldan to that of the other expert witnesses.

17 On appeal, counsel for Ms Sheikh submits that it was not open to the Tribunal to find that all her post-injury behaviour could be explained by the diagnosis of maladaptive personality style. It is said that this is because no diagnosis was made by any psychiatric specialist of a past or present personality disorder. Nor, he points out, was there any evidence of a maladaptive personality extending over a significant period of time prior to the physical injury suffered by Ms Sheikh in May 1997. The claim that this finding was not open to the Tribunal was also sought to be justified by a submission that there was contemporaneous past medical evidence from qualified medical specialists of the alternative diagnosis of depression or another psychiatric disorder, consequent upon her physical injuries, which was not equated by those specialists with normal mood variation. More precisely, it is said that the Tribunal found that the sole reason for the behaviour of Ms Sheikh was her maladaptive personality style with no contribution made by depression arising from her workplace injuries and related events and that such an extensive finding had no reasonable basis in the evidence.

18 The evidence of Dr Walden, whose diagnosis was accepted by the Tribunal, included a report of 30 January 2002 after an interview with Ms Sheikh of approximately one and a half hours. Dr Walden concluded that a diagnosis of adjustment disorder with anxiety and depressed mood was not appropriate because the inappropriate behaviour of Ms Sheikh outlined in Dr Walden’s report was consistent with an underlying personality style rather than a psychiatric illness or condition. Dr Walden considered that Ms Sheikh’s behaviour was a reflection of limited coping mechanisms rather than the development or onset of a sudden depressive disorder. She recorded that the appellant did not present as being depressed. Her conclusion on that occasion is summarised as follows:

19 In her subsequent report of 5 February 2003, Dr Walden refers to a further interview with Ms Sheikh on 30 January 2003 of approximately one and a quarter hours. Dr Walden notes that a major depressive disorder diagnosis requires at least two weeks of symptoms of pervasively depressed mood and at least four symptoms in the areas of sleep disturbance, weight loss, suicidal ideation, poor concentration and attention, feelings of hopelessness and worthlessness and fatigue. Dr Walden did not consider that this was consistent with the history of Ms Sheikh. She considered that Ms Sheikh had been coping satisfactorily from a psychological point of view until she was confronted with the prospect of an increase in work hours, after which she referred to feelings of depression. Dr Walden observed that when such fluctuations of mood occurred in the context of the usual coping mechanisms of one’s personality, a diagnosis of disorder is not generally assigned. She considered that it was Ms Sheikh’s personality style and inadequate coping mechanisms that were the critical factors that led to her sudden overdosing. She confirmed her diagnosis that the mood disturbance of Ms Sheikh was indicative of mood fluctuations that resulted from her personality style and not from depressive illness.

20 One criticism levelled at Dr Walden’s diagnosis that the behaviour of Ms Sheikh arose out of her personality style was that there was no pre-existing behaviour or indication before the injury of any such inadequate coping mechanism. It is said that, in the absence of any pre-injury manifestation of personality maladaptive coping style, it was not open to Dr Walden to make this diagnosis. As counsel for the Corporation points out, however, there is no evidence to support the proposition that it is essential to have a pre-injury manifestation of inappropriate behaviour before a diagnosis of maladaptive personality style can be made. He points out that there is evidence from Dr Walden, in cross-examination, on this point, to the effect that it was not necessary to have any manifestation of personality problems before making such a diagnosis. The following exchange took place in the course of cross-examination of Dr Walden in relation to the question of whether prior pre-injury indications of maladaptive behaviour were necessary:

21 This evidence provides support for the conclusion that, in the opinion of Dr Walden, it is not necessary to demonstrate previous manifestations or outbreaks of personality disorder problems in order to make a diagnosis that the condition under consideration is that of maladaptive personality style rather than psychiatric disorder.

22 In this case, there was a great deal of material before the Tribunal, much of which was not seen or used by the individual witnesses. It is not appropriate to simply isolate particular parts of the evidence taken out of context of the overall information. The Tribunal had a wider range of information upon which to draw in reaching its conclusion.

23 In the reasons of the Tribunal, there is a statement that there was evidence of a manifestation of the pre-existing personality style of Ms Sheikh having regard to her explanation as to why she believed her application for compassionate leave should be granted. This incident related to false reasons given by Ms Sheikh in relation to obtaining compassionate leave. Ms Sheikh said that she needed a day to look after her sick mother when she was not, in fact, looking after her mother.

24 In relation to this evidence, I agree with counsel for Ms Sheikh that this does not of itself amount to a manifestation of maladaptive personality style but I am not persuaded that the reference to this behaviour had any material effect on the conclusion of the Tribunal in the light of the preferred expert evidence.

25 I am not persuaded that the Tribunal’s reasoned preference for the evidence of Dr Walden ought to be discounted or that it was not open to the Tribunal to accept the expert opinion expressed in her reports and in oral testimony.

26 For these reasons, I am not satisfied that there has been any error of law or principle on the part of the Tribunal in preferring the evidence of Dr Walden and accepting her analysis of the behaviour and personality of Ms Sheikh. This appeal is strictly limited to questions of law, and the preference of the Tribunal for the diagnosis of Dr Walden after careful analysis of contrary material and expressed reasons, which on their face are open, does not amount to such an error. Furthermore, there was evidence on which Dr Walden could reach the conclusion which she did and I am persuaded that it was open to the Tribunal to reach the conclusion that it was not necessary to have pre-existing manifestations of the maladaptive personality style in order to reject the claim of compensable psychological illness. Ms Sheikh therefore fails on this first issue.

27 The second ground of appeal is that the Tribunal erred in affirming the Corporation’s determination that the appellant was able to work full time, that is to say, 36 hours and 45 minutes per week from 5 May 2003.

28 Counsel for Ms Sheikh contends that the determination and subsequent reviewable decision that Ms Sheikh was able to work full time from 5 May was based on the proposition that, if Ms Sheikh had taken part in the rehabilitation scheme prescribed for her in December 2002, she would have gradually been upgraded to full working hours in the Records Section. The critical point is said to be that Ms Sheikh challenged the validity of the determination of the rehabilitation program and this challenge was ultimately upheld by the Tribunal. As a consequence of the challenge, the program was never implemented and therefore it is said by counsel that the basis on which the determination and reviewable decision were originally made cannot stand.

29 In these circumstances, it is said that the Tribunal had to make its own assessment of the fitness of Ms Sheikh for work as at 5 May 2003, which was the date of the reviewable decision. In order for the Tribunal to do this, it was necessary to take into account the fact that Ms Sheikh had not undertaken the return to work rehabilitation program. It is claimed that the Tribunal did not make any independent assessment but simply referred to Ms Sheikh’s hours of work at the time of its decision, which was not the appropriate time to look at the question. The Tribunal concluded that these hours were the consequence of a belief held by Ms Sheikh that she could not work longer hours.

30 It is also said that, in reaching its conclusion, the Tribunal relied on the medical assessments of Dr Adler in 2001 and 2004, but that these assessments were unsatisfactory because they did not attribute all of Ms Sheikh’s incapacity to her belief that she could not work longer hours and were predicated on a return to work rehabilitation program being implemented. In so far as the Tribunal relied on the contrary opinion of Dr Chase, it is claimed that the Tribunal’s conclusion was unjustified because Dr Chase’s only assessment was made in September 2002 and he accepted that Ms Sheikh had ongoing problems. It is further said that the Tribunal failed to take into account the fact that Ms Sheikh had been away from work following the meeting and drug overdose on 4 March 2003 and that she had returned to work on 15 May 2003 after being certified as fit for limited duties only. Counsel refers to specialist evidence from Dr Bentivoglio (a neurosurgeon), who was familiar over a long period with the physical capabilities of Ms Sheikh and who thought that she was not fit for more than 20 hours a week on selected duties. Similar views were expressed by Dr Latif (a general practitioner). Counsel submitted that the reports of these doctors indicated that their professional opinion was that Ms Sheikh’s lower level of capacity had applied for several years and certainly during 2003. It is claimed that the Tribunal did not sufficiently take into account the views of Dr Bentivoglio and Dr Latif in its consideration of the issues and that the evidence of these doctors was ignored.

31 In relation to the last proposition, the difficulty faced by Ms Sheikh is that, in the Tribunal reasons, the evidence of Dr Latif and Dr Bentivoglio was summarised at length and there is a record of their views and conclusions. They were not overlooked or ignored. It is evident from the reasoning of the Tribunal, at [160] especially, that the decision to work five hours a day, four days a week, was a consequence of Ms Sheikh’s belief and statements that she could not work longer hours. The Tribunal’s reasons refer to the opinions held by the treating clinicians, and particularly that of Dr Bentivoglio. It considered that these opinions were based on Ms Sheikh’s exaggerated self-reporting of symptoms and it referred to the lack of access by those doctors to a significant amount of additional clinical material and other opinions which were before the Tribunal. The Tribunal’s reasons express a clear preference for the opinions of Dr Adler and Dr Chase.

32 In considering this matter, it is important to bear in mind that the accuracy and reliability of Ms Sheikh as a witness was doubted in important respects by the Tribunal in its reasons, in particular at [121], because of her tendency to exaggerate. The Tribunal also noted the report of Dr Roldan and his psychometric evaluation test, which confirmed that Ms Sheikh was likely to exaggerate her clinical symptomatology, and reliance on her statements had an adverse bearing on the evidence of Dr Bentivoglio.

33 Where the Tribunal prefers one body of medical evidence to that given by other expert medical witnesses and reasons are given for such preference, there is, generally speaking, no error of law or principle in making a decision. Such a determination is a matter of fact as to which opinion reflects the true position. In Wilshire v Essex Area Health Authority [1988] 1 All ER 871 at 882-883, their Lordships referred to the importance of the fact that the trial Judge had been able to observe and assess the witnesses giving evidence. The present is such a case and, in my view, there has been no error demonstrated in the reasons of the Tribunal in relation to the question of the determination. In particular, there has been no failure to deal with material by the Tribunal or error of principle or reasoning which would warrant such a conclusion. Ms Sheikh therefore does not succeed on the second issue.

34 Subsection 14(2) provides that compensation is not payable in respect of an "injury" that is intentionally self-inflicted. This provision falls to be considered in the light of the overdose taken by Ms Sheikh on 4 March 2003 after the meeting with her rehabilitation officer concerning her hours of work. On Ms Sheikh’s behalf, it is claimed that taking a drug overdose is not an "injury" in itself in the context of the psychiatric illness claim although it may cause physical injury depending on the quantity of drugs ingested. This case is said not to be one where Ms Sheikh submits that she inflicted on herself a physical injury while her mind was unhinged and seeks compensation for that physical injury. The case is rather that Ms Sheikh’s psychiatric condition, already present, was exacerbated by what happened at the meeting on 4 March 2003 and not by the subsequent ingestion of an overdose. It is said that the overdose was the result of a psychiatric condition that was not self-inflicted and not the cause of a separate physical harm.

35 On the evidence, there is no doubt that the taking of the overdose was an intentional and voluntary act by Ms Sheikh, as is pointed out in the submissions of counsel for the Corporation, in order to achieve the goal of attracting attention to her perceived problems. In relation to the claim that her psychiatric condition was exacerbated as a consequence of the meeting, the short answer is that, on the Tribunal’s findings, there was no pre-existing condition to be worsened.

36 "Injury" is defined in s 4 of the Act to mean a disease suffered by an employee or a physical or mental injury arising out of, or in the course of, the employee’s employment, or an aggravation of a physical or mental injury suffered by an employee, being an aggravation that arose out of, or in the course of, that employment. "Disease" is defined to mean an ailment suffered by an employee or the aggravation of an ailment, that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

37 In its reasons, the Tribunal notes the circumstances in which the drug overdose that led to the seizures was taken and the opinions of several doctors that this was a voluntary act. There is then a statement by the Tribunal that the evidence is that the overdose was voluntarily taken.

38 As a matter of construction of the Tribunal’s reasons, I consider that when the Tribunal refers to the overdose leading to the seizures, it intends this as a reference to the overdosing and to the adverse physical and psychological injuries and effects arising from the act of overdosing. There was evidence before the Tribunal that Ms Sheikh suffered physical effects, such as seizures, after the overdose and later suffered breathing problems. Ms Sheikh asserted that, after the overdose, she suffered physical symptoms including tightness of chest muscles, dryness in the mouth due to tablets and a feeling of suffocation in the chest. These are consequences of the overdose in the form of physical manifestations.

39 On the evidence before the Tribunal, it was open to conclude that the reference to the overdose included the physical consequences of the overdose and that there was no worsening of any psychiatric disorder illness or condition as a result of the meeting on 4 March 2003. I can no error in this approach of the Tribunal.

40 I note that, at [163] of its reasons, the Tribunal, after referring to Hart v Comcare [2005] FCA 16, said:

The respondent says that the reasons in Hart are not apposite to the present circumstances because in that case there was no "injury" whereas, in the present case, the overdose resulted in injury. I agree, however, that reference does not, in my view, affect in any material way the reasoning or the conclusion of the Tribunal.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Counsel for the Applicant:	L T Grey

Solicitor for the Applicant:	C & M Lawyers

Counsel for the Respondent:	D J Russell SC

Solicitor for the Respondent:	Forners

Date of Hearing:	11 November 2005

Date of Judgment:	22 December 2005

Federal Court of Australia

Sheikh v Australian Postal Corporation [2005] FCA 1819 (22 December 2005)