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Administrative Appeals Tribunal of Australia |
Last Updated: 8 January 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q94/552,Q2000/319
GENERAL ADMINISTRATIVE DIVISION )
Re GAIL ROSLYNNE PHILLIPS
Applicant
And COMMISSIONER FOR SUPERANNUATION
Respondent
Tribunal Deputy President Don Muller Mr R G Kenny, Member Mr B J McCabe, Member
Date 8 January 2003
Place Brisbane
Decision The Tribunal varies the decision under review and determines that: (i) the applicant failed to give information that she was required to give or gave false or misleading information in connection with the medical questionnaire completed on 14 July 1983; (ii) if she had not failed to give that information or had not given that false or misleading information then the Benefit Classification Certificate issued in respect of her would have specified the additional conditions of personality disorder and major depressive disorder in addition to allergic rhinitis; (iii) that a substitute Benefit Classification Certificate specifying personality disorder and major depressive disorder be issued effective from 4 January 1984; and (iv) the incapacity which was the ground for the applicant's retirement, namely, obsessive compulsive disorder, was caused, or was substantially contributed to by the condition or conditions specified in the Benefit Classification Certificate, or was connected with either or both of such condition/s.
.............(Signed).................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
SUPERANNUATION - benefit classification certificate - false or misleading information - real risk of not continuing to retirement age - specification of condition - whether retirement caused or substantially contributed to by condition
Superannuation Act 1976 (Commonwealth) s16(4), 16AC, 66(2)
Black v. Commissioner for Superannuation (No N 93/161 AAT No 9392)
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
Commissionar for Superannuation v Benham (1989) 22 FCR 413
Commissioner for Superannuation v Miller (1986) 8 FCR 153
Commissioner for Superannuation v Perrett (1990) 23 FCR425
Fry v Commissioner for Superannuation (1984) 2 FCR 472
Hocroft and the Commissioner for Superannuation 23 ALD 369 at 373
Kelly and the Commissioner for Superannuation (No A87/79 of 6 May 1988
Linden and the Commissioner for Superannuation (1979) 2 ALN 659
McLean v. Commissioner for Superannuation (1991) No. A92/13 AAT No. 9123
McMullen v Commisioner for Superannuation (1985) 61 ALR 189
Meilak v Commissioner for Superannuation (1991) 28 FCR 315
Perret v Commissionar for Superannuation (1991) 29 FCR 581
Re Bergin and Commissioner for Superannuation (1991) 19 ALD 279
Re: Rohde & Commissioner for Superannuation (1988) 18 ALD 79
Sheridan v the Commissioner for Superannuation (1993) 31 ALD 759
REASONS FOR DECISION
8 January 2003 Deputy President Don Muller Mr R G Kenny, Member Mr B J McCabe, Member
The Application
1. Gail Phillips (the applicant) was born on 2 December 1949 and was appointed to the Australian Public Service on 14 February 1983 at which time she became an eligible employee within the meaning of the Superannuation Act 1976 (the 1976 Act). She was examined on 14 July 1983 by a Commonwealth Medical Officer (CMO) to determine her fitness for appointment and superannuation classification for the purposes of the Act. On 4 January 1984, a delegate of the Commissioner for Superannuation (the respondent) issued a Benefit Classification Certificate (BCC) in which the only condition listed was allergic rhinitis.
2. The applicant commenced a period of sick leave in January 1987 and, on 24 June 1988, was retired on medical grounds from the APS with effect from 1 March 1988. The stated grounds of retirement were "inability to perform her duties, or other duties appropriate to her classification, because of physical or mental incapacity viz obsessive compulsive disorder".
3. On 13 March 1990, a delegate of the respondent determined:
* that the applicant had failed to give information that she was required to give or gave false or misleading information in connection with the medical questionnaire completed on 14 July 1983;
* that if she had not failed to give that information or had not given that false or misleading information then the BCC issued in respect of her would have specified the additional condition of schizo affective disorder in addition to allergic rhinitis;
* that a substitute BCC specifying schizo affective disorder was to be issued effective from 4 January 1984; and
* that the incapacity which was the ground for her retirement was caused, or was substantially contributed to, by the condition or conditions specified in the BCC, or by a condition or conditions connected with such condition.
4. That decision was confirmed on reconsideration by another delegate of the respondent on 29 March 2000 (the reviewable decision) and, on 30 March 2000, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) .
Appearances and Evidence
5. The applicant attended the hearing and was represented by Mr R Reed, of counsel. Mr. R. Whithear of counsel appeared for the respondent.
6. At the hearing, the following materials were taken into evidence:
Exhibit 1 the T documents (T1-T79);
Exhibit 2 a report, dated 30 April 2002, from Dr E O'Brien;
Exhibit 3 an addendum, dated 15 May 2002, by Dr E O'Brien;
Exhibit 4 medical questionnaire;
Exhibit 5 a report, dated 16 January 2002, from Dr F Varghese;
Exhibit 6 notes from Stones Corner Clinic;
Exhibit 7 notes from Dr A Bignell
Exhibit 8 notes from Dr E O'Brien;
Exhibit 9 Brisbane City Council certificate of service dated 16 June 1981;
Exhibit 10 Yeronga State School certificate dated 12 December 1980;
Exhibit 11 Nunn & Trivett's Commercial College certificate dated 11 December 1981;
Exhibit 12 interview report form;
Exhibit 13 workplace supervisor's report, dated 27 September 1984;
Exhibit 14 workplace supervisor's report, dated 5 November 1986;
Exhibit 15 applicant's notes of grievance procedure;
Exhibit 16 letter, dated 22 June 1987, from Dr E O'Brien; and
Exhibit 17 undated letter to the applicant from Maureen.
Legislation and Issues
7. This matter was determined under sub-section 16(11) and sub-section 66(2) of the Act. Sub-section 16(11) of the Act was repealed by the Superannuation Legislation Amendment Act 1990 (the 1990 Amendment Act) and replaced by section 16AC and the 1990 Amendment Act applies section 16AC to questions asked at medical examinations before 1 July 1990. The 1990 Amendment Act also preserved the BCC issued on 13 March 1990 in respect of the Applicant which was taken to have been issued on 4 January 1984.
8. The relevant provisions in the 1976 Act read:
(1) In this section:
condition means a physical or mental condition.
relevant person means:
(a)a person:
(i)who is an eligible employee; and
(ii)who has not attained his or her maximum retiring age; and
(iii)whose period of contributory service, if the person were to cease to be an eligible employee, would be less than 20 years; or
(b)a person:
(i)who is or was an eligible employee to whom partial invalidity pension is or was payable in accordance with section 78; and
(ii)whose period of contributory service, if the person had ceased to be an eligible employee at the time when partial invalidity pension became so payable, would have been less than 20 years; or
(c)a person:
(i)who has ceased, because of death or retirement on the ground of invalidity, to be an eligible employee before attaining his or her maximum retiring age; and
(ii)whose period of contributory service is less than 20 years.
(2) Subsections (4) to (8), inclusive, apply where the Board is satisfied, in respect of a person who is a relevant person:
(a)that:
(i)at or in connection with a medical examination that the person was required under subsection 16(2) or (6) or 16AB(3) to undergo; or
(ii)in connection with a request under subsection 16(6) by the person;
the person failed to answer properly a question asked of him or her or gave false or misleading information; and
(b)that, if the person had answered the question properly or had not given that false or misleading information:
(i)where there is in force, or there was in force immediately before the person's retirement or death, a benefit classification certificate in respect of the person--a condition or conditions of the person not specified in the certificate would be or would have been so specified; or
(ii)where subparagraph (i) does not apply--there would be in force, or there would have been in force immediately before the person's retirement or death, a benefit classification certificate in respect of the person specifying a condition or conditions of the person.
(3)....................
(4) If subparagraph (2)(b)(i) or (3)(b)(i) applies, the Board shall revoke the certificate and issue in substitution for it a new benefit classification certificate in which the condition or conditions referred to in that subparagraph is or are specified either in addition to, or instead of, the condition, or some or all of the conditions, specified in the revoked certificate.
(5) If subparagraph (2)(b)(ii) or (3)(b)(ii) applies, the Board shall issue in respect of the relevant person a benefit classification certificate specifying the condition or conditions referred to in that subparagraph.
(6) Except for the purposes of this section, a certificate revoked under subsection (4) is taken never to have been issued.
(7) A certificate issued under subsection (4) in substitution for a revoked certificate is taken to have been issued on the day on which, and under the provision under which, the revoked certificate was issued.
(8) A certificate issued under subsection (5) shall be taken to have been issued on the day, and under the provision, that the Board determines to be the day on which, and the provision under which, a benefit classification certificate would have been issued, or would have been taken to have been issued, as the case requires, in respect of the relevant person if the relevant person, or the non-discloser, as the case may be, had answered the question properly, or had not given the false or misleading information, as the case may be.
(9) For the purposes of this section, a person answers a question properly if, and only if, he or she gives in answer to the question all the information that he or she could reasonably be expected to give, on the basis of:
(a)his or her knowledge about the relevant matters; and
(b)the knowledge that, having regard to his or her knowledge about the relevant matters, he or she could reasonably be expected to have about those matters;
if he or she answered the question fully and truthfully on the basis of the knowledge referred to in paragraphs (a) and (b).
(10) In subsection (9): relevant matters, in relation to a question asked of a person, means:
(a)in any case--the matters that the person could reasonably be expected to regard as relevant to answering the question; and
(b)if the question is asked of the person:
(i)at or in connection with a medical examination that the person was required under subsection 16(2) or (6) or 16AB(3) to undergo; or
(ii)in connection with a request by the person under subsection 16(6); or
(iii)in connection with an application under subsection 16AB(2) for the revocation of a certificate issued in respect of the person;
the person's medical history and past and present state of physical and mental health.
(2) The Board may, for the purposes of this section, require a person (other than a person to whom section 184 applies) who proposes to become or becomes an eligible employee to undergo, within such period as the Board specifies, such medical examination or examinations by an approved medical practitioner or practitioners as the Board determines.
(3) A report or reports of the result or results of the medical examination or examinations shall be furnished to the Board.
(4) The Board shall consider the report or reports, and such other matters (if any) as the Board considers relevant, and, if it is of the opinion that there is a real risk that the person, by reason of or for a reason connected with a physical or mental condition or conditions referred to in the report or reports, will not continue to be an eligible employee until the person attains his or her maximum retiring age, the Board shall issue a benefit classification certificate to that effect, being a certificate in which the relevant condition or conditions is or are specified.
(2)Subject to subsections (3), (3A) and (4) of this section and section 79, where:
(a)a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his or her maximum retiring age;
(b)there was in force in respect of the person, immediately before the person's retirement, a benefit classification certificate; and
(c)the Board is of the opinion that the incapacity which was the ground for his or her retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions;
the person is entitled:
(d)where the period of contributory service of the person is not less than 8 years:
(i)if the person does not make an election under section 71 or 72--to invalidity pension in accordance with section 70 and, where the person has paid supplementary contributions, a lump sum benefit in accordance with that section;
(ii)if the person makes an election under section 71--to invalidity pension, and a lump sum benefit, in accordance with that section; or
(iii)if the person is entitled to make an election under section 72 and makes such an election--to a lump sum benefit in accordance with that section; or
(e)where the period of contributory service of the person is less than 8 years--to a lump sum benefit in accordance with section 73.
9. When the applicant underwent the medical examination on 14 July 1983, she was required to complete a statement of her medical history and it included the following questions:
"Are you now suffering or have you ever suffered from any of the following disabilities:-
1 (a) Nervous fatigue or neurasthenia
(b) Mental or nervous conditions
(c) Anxiety State
(d) Depression or difficulty in sleeping
12 (b) Have you had any complaints, illness or injury not mentioned above?"
10. The applicant responded "NO" to each of those questions and the issues for the Tribunal to determine are:
whether she failed to answer properly a question asked of her or gave false or misleading information;
whether, if she had answered the questions properly or had not given false or misleading information, a substitute BCC would have issued and, if so, what condition(s) would have been specified in that BCC; and
whether s.66(2) of the Act applies to the applicant's entitlements because her 1988 retirement incapacity was caused or substantially contributed to by any condition specified in a substitute BCC or a condition connected with such condition(s).
Applicant's evidence
11. The applicant gave the following evidence.
12. She was born on 2 December 1949 and had worked as a high school teacher from 1969 until 1977 but resigned for various reasons including being rejected for inclusion in the library training scheme because of her qualifications, her wish to undertake further study, her mother's ill health and her own health problems associated with "period pain". She then worked for the Brisbane City Council Library as an assistant based at Annerley but was on sick leave from August 1978 until January 1979 when she returned to the Central Library rather than Annerley where she had been replaced. During that period away for work, she spent much of her time living with her parents which enabled her health to improve and she spent much of her day at the Brisbane Youth Service performing voluntary work with young people. She resigned from the library in April 1979 and then worked as a teachers' aide at Yeronga State School from July 1979 until December 1980.
13. In 1981, she moved to the Redlands shire and rented an old farmhouse at Ormiston. At that time, she attended a commercial college, Nunn & Trivetts, as part of the NEAT scheme and was then able to obtain part time employment teaching at a TAFE college in 1982 and 1983. She had applied, in January 1982, for a position with the APS. She accepted a position with the Taxation Office in February 1983 but sought a transfer to the Commonwealth Employment Service (CES) where she believed that she would be able to better relate to the public. She commenced work there in August 1983. She commenced continuous sick leave in December 1986 and was retired on invalidity grounds in March 1988.
14. In relation to the period of sick leave while working in the library, she said that she had been on leave and was due to start back at work at 11am on 28 August 1978. Several matters were relevant to her at that time. She had commenced a relationship with a younger man, Don Allegri; she had experienced difficulty with one of her co-workers at the Annerley library; she had experienced an incident involving a violent neighbour; and she was feeling weak and tired because of a strict diet that she had been on and which resulted in a weight loss of more than 2 stone. Instead of going to work, she went to a see her general medical practitioner, Dr Roger Carlisle, who referred her to psychiatrist, Dr M Weekesdent. She agreed that Dr Weekes had sought and conducted an interview with her mother.
15. There was no real discussion about medical matters with Dr Weekes and she was not diagnosed by her as having any particular condition but was advised by her that blood tests had revealed that she did not have endogenous depression. She recalled being placed on the medication amitryptaline for about three weeks and said that she as only feeling "run down". She agreed that she had been given sick leave certificates from Dr Weekes for some 99 days.
16. When she moved to Ormiston, she was in receipt of unemployment benefits and went to the CES at Cleveland where she was interviewed by staff including Carmel Conners. She denied telling Ms Conners that she had left previous employment because of stress or a nervous condition. Ms Conners referred her to the Stones Corner Clinic. She was told that it was a Commonwealth Government clinic but she was unsure of the reason for the referral. She thought that it was for advice on financial matters, for financial assistance or to get assistance with clothing. She did not believe that it was related to her health. There, she saw Michael Dent and learned that he was a psychologist. She had sessions with him on a few occasions and talked about poverty, unemployment, and perhaps she referred to Don. She could not recall telling him that she had emotional problems, that she had had a nervous breakdown or that she was depressed although she may have said that she was feeling depressed about having no money. She was not aware that Mr Dent had been sent a letter by CES or by Dr Weekes in relation to her.
17. The applicant recalled the medical examination in 1983 and the questionnaire she completed at that time. She said that it had not entered her head to answer "yes" to any of the parts of question 1 as she believed that she had not suffered from the conditions nominated on the questionnaire. She had been "worn out" in the past and thought that the conditions related to persons "who get worked up and nervous" and that depression meant that a person "could not face the day" or "lost interest in life". She said that none of these descriptions applied to her and that, if she used the term "depression", it would have been in a colloquial sense. She said that she had never been fatigued but had felt weak from dieting. She said that she had been sad and distressed when she learned of Don's death but that she had still managed to do things. She had difficulty in sleeping on one or two nights but did not have a sleeping problem. In relation to "complaints, illness or injury", she believed that these were references to matters such as stomach problems but not psychiatric matters. The only condition that she believed she had was allergic rhinitis.
18. The applicant said that she began to have symptoms of obsessive compulsive disorder in late 1983. Her sleep was broken and she was involved in completing various rituals. Her symptoms increased and, during 1986, she would take up to 20 minutes to negotiate entry through her front gate and was unable to go upstairs into her house for long periods, sometimes spending the entire night in her car. She commenced a period of continuous sick leave in January 1987. In February 1987, she was referred to the psychiatrist, Dr O'Brien, by her general practitioner, Dr A Bignell. She was referred to the letter by Dr Bignell (exhibit 8) where it is stated that the applicant had had "a nervous breakdown in the past". She said that she was not sure if she had used those words when speaking with Dr. Bignell.
Evidence ofJennifer Jensen
19. Ms Jensen was the librarian at Annerley when the applicant worked there in 1977-78. She described the applicant as a very competent library assistant who related well to children and adults. She said that she also functioned well socially but that she began to develop some difficulties with some of the younger librarians, in particular with one such staff member. She could recall that the applicant had taken a period of sick leave but she was unable to recall details of her punctuality or of personal matters concerning the applicant.
Evidence of Dr F Varghese
20. Dr Varghese is a consultant psychiatrist who saw the applicant on 22 November 2001 and who prepared a report dated 16 January 2002 (exhibit 5).
21. Dr Varghese reported that the applicant was a most difficult person to interview as she was very keen to play down any psychiatric disorder prior to her joining the APS despite it being quite obvious that there was a significant past history. He had referred the applicant to her consultations with Dr Weekes and Mr Dent but she had denied that she had any mental health problems. Dr Varghese expressed the opinion that there was a significant past psychiatric history when she was treated by Dr Weekes and by Mr Dent and that it was best understood as a recurrent major depression. He also said that it was likely that there had been subsequent depressive episodes and that it was possible that, at the time she was consulting Dr Weekes, the depressive episode was of a severe kind.
22. Dr Varghese described the diagnostic issues as being quite complex and said that there were remaining uncertainties. He described the applicant's current clinical state as that of a quite severe and functionally disabling obsessive compulsive disorder. He said that she does not have any schizophrenic illness or schizophrenia like illness such as "schizo affective disorder", that she seemed to have a disorder of personality with significant obsessional traits as well as narcissistic traits and perhaps some paranoid traits, that these were "pre-existing" in that they are by definition life long traits but that these were not the predominant reason for her being considered medically unfit to work. Dr Varghese also said that, at the time of seeing her, she did not have any evidence of depressive illness and that it must be assumed that the recurrent major depression (unipolar affective disorder) was in remission.
23. In his report, Dr Varghese included the following question/answer sequences:
"1. What you understand is encompassed by the condition "Schizo Affective Disorder"?
Schizo Affective Disorder refers to a condition wherein the patient has symptoms of both Schizophrenia and Affective Disorder. Psychotic disorders can be broadly divided into three groups, namely schizophrenic disorders, affective psychoses and paranoid psychoses, the last of which does not concern us here. Schizophrenic disorders are severe disorders with psychotic symptoms giving rise to long term disability in that there is a failure of restitution to normal. Affective psychoses on the other hand are episodic and the psychotic symptoms are considered to be secondary to mood change. There is restitution to normal following each episode. Schizo Affective Disorders, broadly speaking can be considered to be psychotic like states resembling schizophrenia but which occur episodically in keeping with affective disorder and moreover have affective symptoms (ie mood symptoms) predominant. In previous classifications (DSM II, ICD-9) Schizo Affective Disorder has been regarded as a subgroup of Schizophrenia (i.e Schizo Affective Schizophrenia). However in more recent classifications (DSM III - IV and ICD-10) the group sits between Schizophrenia and an Affective disorder as a separate disorder. To repeat what has been stated previously Ms Philliips does not have Schizo Affective Disorder.
2. From your perusal of the medical material and your consultation with Ms Phillips, are you able to describe the medical condition which caused her retirement on invalidity grounds in March 1998 (the retirement incapacity)?
From the material and the consultation I assume that the retirement incapacity was on the basis of Obsessive Compulsive Disorder (OCD). Given that Ms Phillips does not suffer from Schizo Affective Disorder the OCD would be the only valid ground for retirement on the ground of ill health. The recurrent major depression which appears to have been present before, would not of itself be grounds for retirement as this is treatable in that each episode responds to treatment and subsequent episodes can be prevented by appropriate prophylactic therapy. The OCD on the other hand is a severely disabling long term disorder with poor response to treatment.
3. Do you consider there to be any causal connection between the condition described as Schizo Affective Disorder and the retirement incapacity?
I do not believe that there is any connection between Schizo Affective Disorder and the retirement incapacity. I repeat again that Ms Phillips does not have Schizo Affective Disorder and has never had this condition.
4. Do you consider there to be any other real or substantial connection or association between the condition described as Schizo Affective Disorder and the retirement incapacity?
There is no real or substantial connection or association between Schizo Affective Disorder and Obsessive Compulsive Disorder. The two disorders are quite different. It is the case that a certain proportion of people with Obsessive Compulsive Disorder will go on to develop Schizophrenia and this proportion would be more than expected by chance. However Ms Phillips has not gone on to develop Schizophrenia or any variety of Schizophrenia, such as Schizo Affective Disorder. It is also the case that people with Schizophrenia, including Schizo Affective Disorder can develop obsessive compulsive symptoms as an expression of the Schizophrenia. However it is clear that Ms Phillips' Obsessive Compulsive Disorder is not symptomatic of Schizo Affective Disorder, nor indeed is it symptomatic of the recurrent-depressive disorder. It is a primary condition independent of Schizo Affective Disorder (which she does not have) or recurrent major depression (which she did have).
5. To your knowledge, is there any statistical or other material available to demonstrate the likelihood or otherwise of persons who suffer from Schizo Affective Disorder (as described in this case) developing the symptoms of either:
a) obsessive compulsive disorder; or
b) the retirement incapacity in this case?
I believe I have described this broadly above. I reiterate that Ms Phillips does not have Schizo Affective Disorder and has never had Schizo Affective Disorder. I note she has had in the past a recurrent affective disorder and personality disorder."
24. In his evidence, Dr Varghese said that a person with major depression was not at greater risk of contracting other mental problems although he said that there could be conditions associated with the depression such as panic attacks, increased prospect of suicide or alcohol problems. He denied any increased risk of OCD but said that depression might lead to a presentation of OCD symptoms such as recurrent thoughts or checking behaviour rather than primary OCD. He said that it was more likely that a person with OCD would develop depression and that OCD would usually predate depression. He said in his report that, generally speaking, OCD has its onset in late adolescence or early adulthood, that it is uncommon although by no means out of the question for the illness to have its onset in the third decade and that it tends to develop insidiously with the patient not realising they have the disorder until it becomes disabling. Dr. Varghese also referred to a person who has a general neurotic syndrome as being someone who was vulnerable to the development of either depressive disorder or OCD.
Evidence of Dr Bendeich
25. Dr Bendeich was a Senior Medical Officer with the Commonwealth Department of Health for 11 years, initially part-time and then full-time from 1985.
26. Dr Bendich said that she had seen the reports of Dr Weekes prepared in 1978 and 1981. The first of those was addressed to Dr Carlisle in which Dr Weekes referred to endogenous depressive syndrome which was managed by antidepressant therapy in the form of amitryptaline (see T8). The second report was to the Stones Corner Clinic in which Dr Weekes described the final diagnosis as paranoid schizophrenia with secondary endogenous depression or schizo affective disorder for which Dr Weekes treated the applicant with antidepressants amitryptaline and melliril as well as intensive psychotherapy (see T10).
27. Dr Bendeich said that if these reports had been available in 1983, the applicant would have been rejected as not having met the general medical standard (GMS) or would have been deferred for a period of perhaps six months. She also said that, if the applicant had disclosed on the questionnaire her dealings with Dr Weekes and with Mr Dent, this would have led to a request for an up-to-date psychiatric report and the issuing of a BCC in relation to a psychiatric disorder. As at July 1983, the GMS contained the following relevant provisions:
"13. Central Nervous System
(1) Mental disorders
(a) Standard not met where an applicant suffers from a chronic or recurrent psychotic or psychoneurotic illness or manifests definite evidence of chronic personality disorder.
(b) Standard could still be met even though person has suffered from or shows symptoms of nervous, emotional or mental illnesses. Each case should be considered on its merits on the basis of the guidelines in the following paragraphs. It should be noted, however, that mental disorders are a common cause of prolonged sick leave leading to a high incidence of early retirement.
(c) Standard met provided there had been freedom from recurrence and absence of signs for 3 years and the mental disorder represents no more than:
(i) a single episode which is not of a chronic or recurrent nature,
(ii) a stated episode, the diagnosis of which has not been completely substantiated, or
(iii) a single episode of minor emotional disturbance requiring medical attention resulting from stress, such as may occur after bereavement, marital discord, illness, or similar happening.
(d) Standard met in cases of a more complex nature than those above, if, there is clear evidence of satisfactory treatment, freedom from recurrence for at least 5 years, no current signs and symptoms and no control by drugs. A specialist's report should be obtained in all such cases.
(e) Recommendation should take account of the nature of the duties likely to be performed by the applicant during his or her working life; certain occupations (eg telephonist) are prone to aggravate any tendency towards neurosis or psychosis."
Evidence of Dr O'Brien
28. Dr O'Brien is a consultant psychiatrist who treated the applicant during the period from February 1987 until December 1987. In evidence were reports from her dated 9 March 1987 (see T20), 28 May 1987 (see T23), 22 June 1987 (see T25), 4 November 1987 (see T26), 8 December 1987 (see T28), 6 January 1998 (see T73) and 30 April 2002 (exhibit 2). In her final report, she advised that she had perused the reports of Dr Varghese dated 16 January 2002, of Dr Weekes dated 8 September 1978 and 10 September 1981, of Dr Bignell dated 4 January 2000 and of Mr Dent dated 28 June 1997.
29. Also in her final report, Dr O'Brien included the following question/answer sequences:
"(a) Do you agree with Dr Varghese's opinion that Ms Phillips had never suffered from any schizophrenic illness or schizophrenic like illness such as Schizoaffective Disorder prior to her medical examination for the purposes of the Commonwealth Superannuation Scheme on 14 July 1983?
In replying to this first inquiry and also the subsequent one (b). I refer you to my report of 6 January 1998, section 8(c). In my opinion, based on my contact with Ms Phillips and the letters written her general practitioner, I did not identity evidence to support a schizophrenic illness or schizophrenic-like illness such as Schizoaffective Disorder. Hence I am in agreement with Dr Varghese's opinion,
(b) Do you agree with Dr Varghese that the applicant suffered from recurrent major depression (unipolar affective disorder) prior to 14 July 1983? Is this diagnosis consistent with Dr Weekes' opinion that Ms Phillips suffered from an endogenous depressive syndrome and a depressive paranoid illness?
In the period of time in which Ms Phillips attended, I identified significant anxiety and depressive symptoms and my initial diagnosis was of an anxiety and depressive disorder. This implies that Ms Phillips' high levels of anxiety, which Dr Bignell noted in her letter of referral, had resulted in the development of a depressive illness. The background information that Ms Phillips provided me of attendance on Dr Maria Weekes in 1978 represented an earlier episode of depression. Thus I am in agreement with Dr Varghese's opinion that Ms Phillips suffered from what is considered in the current terminology to be the diagnosis of Major Depression (Unipolar Affective Disorder) prior to July 1983,
(c) In your report of 6 January 1998 (page 6) you stated that there was strong evidence that Ms Phillips had a personality disorder. Do you agree with Dr Varghese that Ms Phillips suffered from a personality disorder with significant obsessional traits as well as narcissistic traits and paranoid traits or with Dr Weekes' opinion that Ms Phillips suffered from an obsessive compulsive personality prior to 14 July 1983?
In my report of 6 January 1998, I refer to the changes in diagnostic approaches that have occurred over the preceding decade and the different diagnostic systems used in an endeavour to bring more coherence to psychiatric terminology. One area where this has applied, as well as in the area of schizoaffective disorder, is in the nosology of personality disorders. This is an area where there is probably the least agreement amongst psychiatrists when comparative studies are done and it is also a very difficult area in which to be specific. By definition, personality disorder and personality traits imply longstanding features of a person's personality. I refer you again to my report of 6 January 1998 (section 8(j), the last paragraph) for my own approach to the diagnosis of personality dysfunction at that time. In response to your specific inquiry however, diagnostically I do not see that there is a conflict between Dr Varghese's and Dr Weekes' opinions. While both agree that there are significant obsessional elements to Ms Phillips' personality functioning, the addition of narcissistic and paranoid traits in Dr Varghese's opinion and the use of the term 'compulsive' in Dr Weekes' opinion does not make the two opinions mutually exclusive. What is consistent in both is the recognition of the obsessionality as a significant and central trait. Dr Weekes identified this trait as present in Ms Phillips' personality at the time that she assessed her in 1978.
(d) Was there a real risk that Ms Phillips would have been retired before reaching maximum retirement age of 65 by reason of a personality disorder or a depressive illness (however described) either individually or in combination, or by a mental condition linked or associated with such conditions on the basis of her history prior to 14 July 1983?
Dr Weekes' report of 8 September 1978 and my observations and opinions regarding Ms Phillips based on my contact with her in 1987 would lead me to believe that the combination of her personality vulnerabilities plus her history of depression - which I suggest is contributed to by the nature of her personality dysfunction - would in combination have placed her at more risk of retirement before reaching maximum retirement age of 65.
(e) On the basis of the information available to you now, is Ms Phillips' depressive disorder (however described) a cause of her Obsessive Compulsive Disorder or are the conditions linked or associated in any way?
I refer you again to my report of 6 January 1998, section 8(i). This information also addresses your next inquiry (f). I will not repeat the information here, since this is already available to you.
(f) On the basis of the information available to you now, Is Ms Phillips' personality disorder a cause of her Obsessive Compulsive Disorder or are the conditions linked or associated in any way?
See (e) "
30. In her evidence in relation to paragraph (d), Dr O'Brien said that the greater risk was because of the impaired coping mechanisms available to an individual to handle stressful life events which will thereby stress that person more than another. She said that the applicant's personality disorder was of such an extent that it was evident to Dr Weekes in 1978 and to herself in 1987.
31. Dr O'Brien, in her report of 6 January 1998, said that there "is considered to be a connection between the conditions with which Ms Phillips presented in 1978 and subsequently in 1987". She referred to a standard text and concluded that a relationship "exists between the occurrence of anxiety/depressive disorders and other anxiety-based disorders such as obsessive compulsive disorder".
32. In her oral evidence, Dr O'Brien said that there is a relationship between anxiety disorder and depressive disorder and that, commonly, people get both conditions and she said that a common set of factors in a person makes them vulnerable. She said that an individual with a personality disorder was more likely than another to develop OCD; that an individual with major depressive disorder was at a greater risk of developing OCD; and that an individual with both major depressive disorder and personality disorder was at increased risk of developing OCD.
33. Dr O'Brien was referred to her report of 9 March 1987 (see T20) where she wrote to Dr Bignell and noted that the applicant had an "earlier breakdown which followed her ceasing work as a high school teacher...". She said that the reference to "breakdown" had been made by the applicant. Similarly, she was referred to her report of 6 January 1998 (see T73) where she stated that the applicant told her that Dr Weekes had diagnosed depression. She agreed in cross examination that she had seen Dr Weekes' report by then but maintained that the applicant had used the term depression herself and Dr O'Brien denied that the applicant was using the term in a colloquical sense but agreed that the applicant had been a difficult patient who had lacked insight into her condition.
Applicant's case
First issue
34. Mr Reed submitted that the applicant was a very thorough person, that she had read the medical questionnaire carefully and that, at the time of filling out the questionnaire, she did not believe that she then suffered or had ever suffered from any of the conditions listed in paragraph 1(a), (b), (c) or (d). She considered depression to mean something like a loss of interest in things and that she had not suffered from such a condition. With respect to nervous fatigue and nervous conditions, she did not consider herself to have ever been weak or nervy and that, at one point, had been distressed by the death of Don Allegri but that she did not consider that to constitute a nervous condition. She denied suffering from previous anxiety and said that any sleep disturbance which she may have previously experienced was not regarded by her as anything serious. She regarded the word complaint in question 12(b) as denoting something like a stomach or a chest complaint.
35. Mr. Reed submitted that the applicant had given an accurate account to Dr Weekes on 28 August 1978 saying that she felt run down from a period of dieting, in which she had lost about two stone, that she also was experiencing some stress from the actions of a violent neighbour who had discharged a firearm in the street, from an altercation in the workplace with a fellow library employee, and that she was experiencing some minor difficulties in a developing relationship with Don. He submitted that Dr Carlisle had asked her if she wanted someone to talk to and that she consented to that suggestion. Dr Carlisle's notes only refer to domestic and work problems and were not again discussed with him. She saw Dr Weekes on several occasions on a one to one basis and was persuaded to participate in some sessions of group therapy. She said that she saw Dr Weekes as someone with whom she could discuss the issues that had recently upset her; that the issue with the violent neighbour was quickly resolved as she moved to live with her parents; that this led to a change in diet which resulted in her being run-down; and that the issue with the librarian was obviated by the taking of a period of sick leave.
36. Mr Reed referred to the sick leave certificates by Dr Weekes and he submitted that these allowed the applicant to work virtually full time at BYS, the added incentive for her attendance there being that it allowed her greater contact with Don. She said that most of the discussion with Dr Weekes was about her relationship with Don and that she was looking for advice as to how she should conduct herself in what was, on her description, her first serious relationship. Mr Reed submitted that Dr Weekes had not given the applicant any medical diagnosis and that the term depression was only mentioned once by Dr Weekes when she advised her that a blood test had discounted endogenous depression. He submitted that the nature of the dealings with Dr Weekes were consistent with the account she gave to Mr Dent .
37. Mr Reed referred to the letter from Ms Connors to Mr Dent which refers to the applicant having last received treatment for depression by Dr Weekes in January 1979. Mr Reed submitted that this cannot be taken to represent an accurate expression of what Ms Connors was told in 1981 by the applicant who said that, while she did not recall telling Ms Connors that she had been treated for depression, she would only have used the term in a colloquial sense. He submitted that there were other inaccuracies in Ms Connor's letter, for example, the assertion that the applicant left her teaching position in 1997 due to stress, her library assistant position in 1979 due to a nervous condition and her position at Yeronga State School because of emotional problems. Mr Reed submitted that there was no evidence to support any of those assertions or the reference to the applicant leaving her last job because of problems with another staff member and the death of her boyfriend.
38. Mr Reed also submitted that, in the absence of oral evidence from Mr Dent, it would be unsafe to assume that the applicant had used the term nervous breakdown to describe her 1978 circumstances or that she told Mr Dent she had been treated for depression, a term which he may have borrowed from the CES letter. There was no reason given by the respondent for its failure to call Mr Dent when it was clear that his notes had been produced on summons: cf Jones v. Dunkel (1959) 101 CLR 298.
39. Mr Reed submitted that the account the applicant gave to Dr O'Brien was entirely consistent with those she gave to Dr Weekes. That is, her problems were due to her dieting, issues with Don, dispute with a library worker and the violent neighbour. He referred to Dr O'Brien's major report of 6 January 1998 where she claimed that the applicant told her in 1987 that Dr Weekes had diagnosed depression but he submitted that there was no support in Dr O'Brien's notes for that assertion. Under cross-examination, Dr O'Brien sought to explain the inconsistency by saying that she arrived at the 1998 passage by reference to a reported comment that the applicant's parents had "no sympathy for depression" together with an alleged recollection, after nearly eleven years, of the general tone of the conversation with the applicant in 1987 for which Dr O'Brien insisted that she had independent recollection. She initially denied, but later conceded, that she had by 1998 seen Dr Weekes' letter of 8 September 1978 containing a diagnosis of endogenous depressive syndrome. Mr Reed submitted that the Tribunal should not be satisfied that Dr O'Brien was in fact informed by the applicant of an earlier diagnosis of depression by Dr Weekes and he noted that Dr O'Brien had said that the report had been difficult to compile because of "not only .... the passage of time and limitations of memory, but also ...the fact that records kept a decade ago were not expected to be of the detailed nature now required as common practice.." (see T73/268).
40. Mr Reed also submitted that the Tribunal would disregard the apparent suggestion, contained in Dr O'Brien's notes, that Dr Weekes had suggested "ECT" (Ex 8 - Clinical Notes 12th page) as there was no support for that in either Dr Weekes' letter of 8 September 1978 or her further report to Mr Dent of 10 September 1981 (T10/50). The termination of treatment occurred by mid 1979 at the latest and it is inconceivable that, had Dr Weekes been contemplating ECT, it would not have been mentioned in either the letter to Dr Carlisle or the letter to Mr Dent. There is nothing in the second letter to suggest that Dr Weekes had not correctly predicted, in her terms, that her prognosis for the depressive episode is "excellent" (T8/48).
41. In relation to the Stones Corner Clinic, Mr Reed submitted that the applicant's evidence was supported in several ways by the notes of Mr Dent: that she was being referred for financial assistance; that she used the word "depression" colloquially by saying that she was depressed about not having money (Ex 6 - Clinical notes 26/6/81 2nd and 3rd pages); that she believed she did not have a psychological problem (Ex 6 - Clinical notes 12/7/81 5th page); that she felt that she had to keep the appointments at SCC in order not to get the CES staff offside (Ex 6 - Clinical notes 26/6/81 2nd page); that the applicant spent some time determining what the clinic could offer her, eventually settling on a request for "assertiveness training" (Ex 6 - Notes 10/7/81 14th page)
42. Mr Reed referred to Fry v. Commissioner for Superannuation (1984) 2 FCR 472 where the Full Court of the Federal Court was critical of the questionnaire of the kind in this matter and said that an "employee complies with the section if he answers the questions truthfully according to his actual knowledge and state of mind" (at 480) and determined that the applicant had not failed the test by failing to advise of his previous prior hospital admission in circumstances where he honestly believed that the prior admission had not been for psychiatric reasons but was because of his homosexuality and because he was "upset". In that context, he also referred to Black v. Commissioner for Superannuation (No N 93/161 AAT No 9392) Re: Rohde & Commissioner for Superannuation (1988) 18 ALD 791 and submitted that the test of what she could reasonably be expected to have known is not a completely objective test, but one based on the applicant's own perceptions at the time she completed the questionnaire. Mr Reed also submitted that the answers to the medical questionnaire should not be "construed with hindsight": McLean v. Commissioner for Superannuation (1991) No. A92/13 AAT No. 9123 at 11 and Hocroft v. Commissioner for Superannuation (1991) 23 ALD 369.
43. He submitted that the applicant answered the relevant questions truthfully according to her actual knowledge and her state of mind and that from her perspective, the situations which gave rise to her contact with Dr Weekes and Mr Dent involved no more than feelings which might commonly occur to people at some time in their lives - she was somewhat unhappy, depressed in the colloquial sense, stressed and had some sleep disturbance and tiredness - without implying a mental condition. He also submitted that regard should be had to the evidence which shows that she lacked insight into her condition.
44. Mr Reed noted that each question was prefaced by the words: "Are you now suffering or have you ever suffered from any of the following disabilities." He referred to Re: Hocroft & Commissioner for Superannuation (1991) 23 ALD 369 at 373 where it was said that the phrase "suffering from a disability" connotes "not a mere passing problem, but a continuous problem amounting to a disability". He submitted that the evidence shows that the applicant was not disabled during the course of her contact with Dr Weekes in 1978, returned to paid employment after any visits that occurred in 1979, performed full-time voluntary work with BYS during her four months sick leave, and attended Nunn and Trivetts Commercial College Ltd on a full time basis at the time of contact with Mr Dent.
45. In summary, on the first issue, he submitted that, on all the evidence, the applicant honestly did not believe on 14 July 1983 that she then suffered from or had ever suffered from, any of the named disabilities or conditions listed in questions 1(a) - (d) or 12(b), that such belief was reasonable given her state of mind and means of information and that the Tribunal could not be satisfied to the requisite standard of proof that the applicant failed the test posed in s.16AC(2)(a) of the Act.
Second issue
46. Mr Reed conceded that an affirmative reponse to any of the questions 1(a), (b), (c) or (d), would have led to a reference to Dr Weekes and to her letters of 8 September 1978 (T8/47,48) and 10 September 1981 (T10/50) or a report which, as she had not seen the applicant since 1979, would have reflected the opinions expressed in the second letter. He submitted that material from Dr Weekes may have included her letter, dated 10 September 1981, to SCC, but that if enquiries had been made of Mr Dent, the Commissioner would have paid little regard to any diagnosis made by a psychologist where it conflicted with that of the psychiatrist and that any information from Mr Dent would have included the information that the applicant could not understand the reasons for her referral, that Mr Dent thought that she required some psychological management (see T69/258) and that the applicant had ceased contact with SCC on about 5 October 1981, that is 18 months prior to the medical examination.
47. He submitted that, given the state of the information which might have been available in 1983, the only additional condition which the Commissioner might have considered should be specified on a BCC would have been "schizo affective disorder", the final diagnosis of Dr Weekes as reflected in the letter of 10 September 1981 (T10/50).
48. Mr Reed referred to Dr Bendeich's evidence that she may have recommended that the applicant not be employed or that permanent appointment be deferred pending a further examination after six months. However, he submitted that Dr Bendeich had conceded that the issues were hypothetical and difficult yet, when reminded that the Weekes' consultation had concluded at least four years prior to the medical examination and that the contact with Mr Dent had occurred in circumstances where no treatment was given, Dr Bendich continued to suggest deferral for six months. Mr Reed submitted that the prospects of non-employment or deferral were so remote and lacking in real support that they ought to be rejected. Mr Reed submitted that, in the unlikely event of deferral, there was no evidence that the applicant's employment would not have been confirmed after that time as there was no evidence of any medical consultation suggesting health concerns with the applicant prior to 4 March 1985.
Third issue
49. Mr Reed referred to the respondent's contention that the applicant's retirement incapacity was "inability to function in the workplace as a result of marked ritualisation" but submitted that a more accurate description was that the progressively increasing ritualisation debilitated the applicant to an extent whereby she could not attend for work. He submitted that Dr O'Brien (T28/83) and Dr Varghese (ex 5 at 3) agreed that the medical condition which disabled the applicant at that time was OCD. He submitted that a substitute BCC would have specified only "schizo affective disorder" and that, as Dr Varghese (ex5 at 5,6,7) and Dr O'Brien (ex2at 1,2) agreed that the applicant did not, and never had, suffered from schizo affective disorder or a schizophrenic like illness, it was axiomatic that the applicant's retirement incapacity was not caused, or substantially contributed to by, schizo affective disorder.
50. As to whether the applicant's retirement incapacity was caused, or substantially contributed to, by a condition connected with schizo affective disorder, Mr Reed submitted that the connection need not be causal but must be a real and substantial connection: see Commissioner for Superannuation v. Benham (1989) 22 FCR 413.
51. Mr Reed submitted that the evidence of Dr Varghese was that the applicant's depression was in remission at the time of her retirement (see ex 5 at 5,6,7) and would not of itself be grounds for retirement as it was treatable (ex 5 at 6). He submitted that Dr O'Brien in oral evidence had agreed generally with this summary.
52. Mr Reed submitted that, even if major depression is a condition connected to schizo affective disorder, such connection is insufficient because the applicant's OCD is independent of any recurrent major depression or depressive order (ex 5 at 6 Dr Varghese) and because any recurrent major depression or depressive disorder suffered by the applicant could not be, and was not, sufficient to cause the applicant's retirement incapacity.
53. Mr Reed also submitted that even if depression and/or obsessive compulsive personality had been specified in a substitute BCC, the applicant's retirement incapacity was not substantially contributed to, either individually or collectively, by those conditions because the evidence of Dr Varghese (Ex 5 at p 6 para 4) and of Dr O'Brien (oral) is that OCD is a primary condition independent of depression and because Dr O'Brien agreed in cross-examination that an obsessive compulsive personality was not a necessary pre-requisite to the development of OCD; and because Dr Varghese thought that, while the applicant had a mixed personality disorder, she was disabled by OCD, an independent primary condition.
RESPONDENT' CASE
First issue
54. Mr Whithear submitted that differing approaches have been adopted for the meaning of the term "disability" and that the Tribunal should utilise the interpretation adopted in Kelly and the Commissioner for Superannuation (No A87/79 of 6 May 1988) that disability refers to anything which interferes with the ordinary functions of the human body in the ordinary course of life. This was in contrast to the interpretaion adopted in Hocroft and the Commissioner for Superannuation 23 ALD 369 at 373 that the phrase "suffering from a disability" connotes not a mere passing problem, but a continuous problem amounting to a disability. He noted that the latter case was followed by the Tribunal in Meilak and the Commissioner for Superannuation V89/181 of 30 October 1992 but submitted that the divergence in approach was not relevant in this case because the applicant gave no evidence that the wording in the questionnaire was a factor in the way she answered the questions stating that she gave no thought to answering "yes" to any of the questions at 1(a), (b), (c) and (d).
55. He submitted that the applicant had actual knowledge that she had experienced health problems which were required to be notified in the questionnaire at the medical examination. In particular, she was well aware of her problems in the six month period immediately preceding 14 February 1977, which included her consultation with Dr Carlisle on 28 August 1978 at which she was referred to a psychiatrist, her treatment for depression by Dr Weekes, her 99 days sick leave between 14 September 1978 and 21 December 1978 on the basis of medical certificates from Dr Weekes and her attendance at Stones Corner Clinic on 11 occasions in 1981. He referred to the applicant's evidence that she used the term depression in a colloquial sense and submitted that this had been refuted by Dr O'Brien and was inconsistent with other aspects of the history she gave to her. Ms Phillips knew that Dr Weekes did not want her to return to work after her 99 days sick leave and that she ceased treatment with Dr Weekes because Dr Weekes wanted her to undergo ECT treatment.
56. Mr Whithear also referred to the applicant's denial that she used the term "nervous breakdown". He submitted that the reference to nervous breakdown appeared on several occasions in the history taken at the Stones Corner Clinic and by Dr Bignell and that the use of quotation marks in the records indicated that it was not the wording of the person recording the history. He submitted that the applicant attempted to explain as erroneous each reference in the clinical notes in evidence before the Tribunal which was adverse to her case.
57. Mr Whithear submitted that the applicant was obsessional about detail and was very articulate and clear in her explanation and recounting of events; that, at the time of her treatment by Dr O'Brien in 1987, she had good recall of and good insight into her mental problems as she said she was able to refer to the distressed time of her life in 1981. He submitted that it was significant that, when interviewed by Dr Varghese for the purposes of this case, she had no recall of her psychiatric history, in sharp contrast to her recall of events at the Clinic and when being treated by Dr O'Brien. He referred to the applicant's evidence that she was referred to the Clinic for financial advice and submitted that it would have been clear to her after attending on eleven occasions and being asked to provide comprehensive details of her treatment by Dr Weekes that her attendance was because of her mental problems.
58. Mr Whithear submitted that, in the event that the applicant lacked insight into her condition which affected her answering of questions at the medical examination, it would be necessary to deal with the question of constructive knowledge and that para.16AC(9)(b) operates to impute knowledge to an applicant in circumstances where a person could reasonably be expected to have such knowledge see Meilak v Commissioner for Superannuation 28 FCR 315 at 320-1 and Fry v Commissioner for Superannuation (1984) 2 FCR 472.
59. He submitted that, despite the applicant's denial, there was also evidence in Dr Weekes' report that she had sleep disturbance and early morning wakening and that Dr Weekes' report should be accepted because of her long involvement with her. He also submitted that the Applicant suffered from fatigue of nervous origin throughout the latter part of 1978 and early 1979 and that, although she attributes this to dieting, she was well aware that she was undergoing considerable stress at that time. It is significant that Dr O'Brien's clinical notes recorded that the applicant stated that she "was still very tired" and that she "couldn't cope with full time work".
60. Mr Whithear also submitted that the applicant failed to answer fully and truthfully question 12(b) in two respects: firstly, if she believed that she only suffered from depression in a colloquial sense, then it was incumbent upon her to reveal that matter and, secondly, she should have revealed her ill health during the six months immediately preceding her resignation from teaching in February 1979.
Second issue
61. Mr Whithear submitted that, if the applicant had disclosed her treatment by Dr Weekes and attendance at the Clinic, she would not have met the general medical standard (GMS) and that, as the applicant's medical history did not constitute a single episode of a mental condition, she would have fallen within paragraph 13(d) rather than paragraph 13(c) of the GMS, set out in paragraph 27 above. This meant that a current specialist report would have been sought from Dr Weekes or a psychiatric referee. He referred to Dr Bendeich's evidence that, if the only reports available to her were those of Dr Weekes dated 8 September 1978 and 10 September 1991, she would have recommended a BCC for history of psychiatric disorder and that this would have encompassed the various conditions referred to in Dr Weekes' reports. However, he also referred to Dr Bendeich's evidence that a further report would have been obtained and he submitted that this would have resulted in a recommendation for a BCC that reflected the opinions of both Dr O'Brien and Dr Varghese that the applicant suffered from personality disorder and recurrent major depression.
62. Mr Whithear submitted that the broad approach to the meaning of the term "real risk" in sub-section 16(4) of the 1976 Act as adopted in Sheridan & the Commissioner for Superannuation (1993) 31 ALD 759 at 760-2, where the Tribunal followed Linden and the Commissioner for Superannuation (1979) 2 ALN 659 at 660-1, and Re Bergin and Commissioner for Superannuation (1989) 19 ALD 279 at 282-3 should be applied and he submitted that a BCC nominating personality disorder and recurrent major depression would have issued because there was a real risk that the applicant would retire on the ground of invalidity by reason of or for a reason connected with one or both of those conditions before reaching age 65. In that regard, he referred to the evidence of Dr O'Brien (Ex 2) and noted that Dr Varghese, while not saying applicant would not have been retired on the basis of recurrent major depression, accepted that a person suffering from recurrent major depression is at a much higher risk of attempting or committing suicide than a person who does not suffer from such a condition. He also described the test posed by sub-section 16(4) as applying in respect of a condition connected with the condition specified on the BCC and submitted that Dr Varghese's evidence was that a person with recurrent major depression was more likely to suffer from panic attacks, substance abuse, obsessive compulsive disorder (OCD) and anxiety disorder, all of which, either individually or in combination, have the potential to result in early retirement and hence constitute a real risk within the meaning of the legislation.
Third issue
63. Mr Whithear submitted that, while personality disorder or recurrent major depression did not cause the applicant's incapacity on retirement, the question for the Tribunal was whether her personality disorder and recurrent major depression were connected with the OCD which did cause her incapacity on retirement. For the distinction between incapacity and condition, he referred to the decision of Davies J in Cocks v Commissioner for Superannuation (1990) 21 ALD 297 at 305-6 and to the decision of the Full Court in Commissioner for Superannuation v Miller (1986) 8 FCR 153. He submitted that the use of the term "connected with" is that of a real and substantial link or association and not a matter that requires causation: see Commissioner for Superannuation v Benham (1990) 22 FCR 413, Commissioner for Superannuation v Perrett (1990) 23 FCR 425 and Perrett v Commissioner for Superannuation (1991) 29 FCR 581.
64. Mr Whithear submitted that the applicant was unable to perform her duties because of her inability to function in the workplace as a result of marked ritualisation and that this was because of OCD and that the issue was whether there was a real and substantial link or association between the applicant's personality disorder and/or recurrent major depression and her OCD.
65. Mr Whithear submitted that the evidence of Dr O'Brien (T73/272) was that recurrent major depression was linked or associated with OCD in two ways. Persons with recurrent major depression are more likely to suffer from OCD than the general community. Recurrent major depression and OCD are linked in that they are different manifestations of a common disorder, namely, general neurotic syndrome. He referred to Dr Varghese as also having accepted that a person with major depression was more likely than those in the general community to have OCD.
66. In the alternative, he submitted that both Dr O'Brien and Dr Varghese were of the opinion that there is a link or an association between the personality disorder suffered by the applicant and OCD. He referred to a minor difference in terminology in that Dr O'Brien's evidence in cross examination was that the applicant has obsessive compulsive personality disorder whereas Dr Varghese considered that she suffers from a "disorder of personality with significant obsessional traits as well as narcissistic traits and perhaps some paranoid traits". However, he submitted that neither saw any inconsistency in the difference in approach and that, to the limited extent that there was a divergence in opinion, the Tribunal should prefer the evidence of Dr O'Brien as Dr Varghese saw the applicant only once and described the difficulties he experienced in obtaining an accurate history. On the other hand, he submitted, Dr O'Brien treated the applicant on numerous occasions between February 1987 and December 1987, that her opinion was the basis for the applicant's retirement, and that she was better placed to give an opinion on the issues arising in this case.
Consideration
67. The first issue for the Tribunal is whether the applicant failed to answer properly a question asked of her or gave false or misleading information.
68. The applicant was examined on 14 July 1983 by a Commonwealth Medical Officer to determine her fitness for appointment and her superannuation classification for the purposes of the 1976 Act. She completed a questionnaire and the relevant questions and answers given by her were:
Are you now suffering or have you ever suffered from any of the following disabilities:-
1 (a) Nervous fatigue or neurasthenia NO
(b) Mental or nervous conditions NO
(c) Anxiety State NO
(d) Depression or difficulty in sleeping NO
12 (b) Have you had any complaints, illness or injury not mentioned above? NO
69. Elsewhere, the applicant referred to the condition of allergic rhinitis and, on 4 January 1984, a delegate of the respondent issued a BCC which nominated only that condition. The Tribunal is satisfied that this was done in reliance on the responses given by the applicant.
70. The work history of the applicant is set out in her evidence and is not in dispute. She commenced a period of sick leave in January 1987 and, on 24 June 1988, was retired on invalidity grounds from the APS with effect from 1 March 1988 because of personality disorder (obsessive compulsive). The Tribunal is satisfied that the applicant ceased work because of OCD. On investigation, it was determined that she had given false or misleading information in relation to her medical conditions. Her BCC was revoked and a substitute BCC was issued in which allergic rhinitis and schizo-affective disorder were listed (see T4).
71. The applicant saw Dr Carlisle on 28 August 1978 and was referred on the same day to psychiatrist, Dr Weekes, with whom there were a series of individual consultations until January 1979 and some group sessions in the early part of that year. A letter, dated 8 September 1978, from Dr Weekes to Dr Carlisle advised him that she had diagnosed "endogenous depressive syndrome" and "a person with an obsessive compulsive personality". She also advised that the first of those was managed by antidepressant therapy in the form of amitryptaline and the second conition was managed by individual psychotherapy (see T8).
72. Dr Weekes second letter, dated 10 September 1981, was to the Stones Corner Clinic and described the applicant as having presented with a "severe depressive paranoid illness" and referred to her final diagnosis "paranoid schizophrenia with secondary endogenous depression" or "schizo affective disorder". Dr Weekes said that she treated the applicant with antidepressants amitryptaline and melliril as well as intensive psychotherapy (see T10).
73. The applicant denied that she had or that she was aware that she had suffered from depression at that time and denied that she had been made aware of that condition by Dr Weekes. The applicant impressed the Tribunal as an intelligent woman who was obsessional about details. She was able to recall the name of the medication that Dr Weekes had prescribed for her as well as the freqency and time-frame over which she took that medication. The Tribunal does not accept her evidence that she was not aware of the reason for taking the anti depressant medication and is satisfied that she was aware that she was suffering from a psychiatric condition while she was seeing Dr Weekes. That conclusion is supported by the content of the letter of referral, dated 18 June 1981, from Ms Conners to the Stones Corner Clinic (exhibit 6). There, Ms Conners gave a summary of the applicant's employment background and stated:
"Gail indicated that she last received treatment for depression at the Toowong Clinic (Dr Weekes) in January 1979 but discontinued as she preferred to try natural methods as opposed to medication.......
It would be appreciated if you could interview Gail with a view to determining whether her emotional condition is such that she could benefit from any assistance that you could offer."
74. As the evidence stands, the information concerning treatment and medication could only have been given to Ms Conners by the applicant. The term "depression" was used and it was in the context of a reference to a psychiatrist and to medication. The Tribunal does not accept the applicant's evidence that she was using the term in a colloquial sense. Dr O'Brien, who treated the applicant for some 10 months, also said in her evidence that she did not believe that the applicant was using the term "depression" in a colloquial sense.
75. The Tribunal is also satisfied that the applicant used the term "nervous breakdown" to Mr Dent and Dr Bignell. The term appears in quotation marks in Mr Dent's clinical notes on 10 July 1981 (exhibit 6) and that entry pre-dates the letter of Dr Weekes to the Clinic. In any event, Dr Weekes, in that letter, did not refer to a nervous breakdown. Dr Bignell, in her letter of referral to Dr O'Brien also referred to the applicant as having had a nervous breakdown and, again, quotation marks have been used. In her evidence, the applicant conceded that she was not sure if she had used those words when speaking with Dr Bignell.
76. The Tribunal is also satisfied that, to some extent, the applicant lacked insight into her psychiatric state. That was the evidence of Dr O'Brien who said that she had been a difficult patient and, in her report of 6 January 1998, she made reference to this by saying that the applicant had a "lack of insight in accepting the nature of her personality vulnerabilities and dysfunction" (see T73/273). In her oral evidence, Dr O'Brien referred to the applicant as having a lack of insight into accepting her conditions. This was not a reference to having no insight at all into having a level of psychiatric malfunction but to the nature and extent of her conditions. Dr O'Brien gave evidence that the applicant was aware that, in her sessions with the applicant, the two of them knew that they were dealing with depression.
77. The Tribunal finds it difficult to accept that the applicant had a mistaken understanding as to the reason for the referral to the Stones Corner Clinic. If true, this may reflect some lack of insight into her problems. However, the Tribunal does not accept that the applicant maintained that misunderstanding during her association with that clinic over eleven visits. She was aware that Mr Dent contacted Dr Weekes in order to obtain a report in relation to her psychiatric condition and she consented to that request being made by Mr Dent (see T9). Further, the clinical notes from the clinic (exhibit 6) reveal that the sessions with Mr Dent at the clinic were not related to financial matters.
78. The questionnaire in issue in this matter required the applicant to advise if she was suffering or had ever suffered from any of the listed disabilities. The Tribunal has noted the submissions concerning the approaches that have been taken to the meaning of the term disability in Kelly and the Commissioner for Superannuation (No A87/79 of 6 May 1988) (anything which interferes with the ordinary functions of the human body in the ordinary course of life) and Hocroft and the Commissioner for Superannuation 23 ALD 369 at 373 and Meilak and the Commissioner for Superannuation V89/181 of 30 October 1992 (not a mere passing problem, but a continuous problem amounting to a disability). Regardless of which of those is adopted, the Tribunal is satisfied that the applicant's psychiatric condition was a disability that she was either suffering from at the time of completing the questionnaire or one that she had suffered from previously. Further, the Tribunal is satisfied that the applicant was aware of that at the time and that, by answering "NO" to questions 1(b) and 1(d), she failed to answer properly a question asked and that she provided false information.
79. The second issue for the Tribunal is whether, if she had answered the questions properly or had not given false or misleading information, a different BCC would have issued and, if so, what condition(s) would have been specified in that BCC.
80. On the evidence of Dr Bendeich, the Tribunal is satisfied that a reference on the questionnaire to depression or some aspect of psychiatric treatment would have resulted in a request for a further psychiatric report to be completed. This may have been by Dr Weekes, in which case her letters to Dr Carlisle and the Stones Corner Clinic would have been made available. Any such examination would have been conducted some four years after the applicant last saw Dr Weekes. The Tribunal agrees with Mr Whithear's submission that any such report would have resulted in the diagnosis of the conditions found to be present by Dr O'Brien and Dr Varghese that is personality disorder and recurrent major depression. In his report of 16 January 2002 (exhibit 5), Dr Varghese diagnosed both of those conditions as well as OCD. In her report of 30 April 2002 (exhibit 2), Dr O'Brien also identified personality disorder and major depressive disorder as well as OCD. The Tribunal also agrees with Mr Reed's submission that any such report would not have provided a diagnosis of the condition which was included on the substitute BCC, that is, schizo affective disorder.
81. Any determination of what may have been the outcome of a psychiatric examination in 1983 involves a level of speculation but, nevertheless, it is a task which the legislation requires. See McMullen v Commisioner for Superannuation (1985) 61 ALR 189 at 205. The purpose of identifying the conditions is revealed in sub-section 16(4) of the 1976 Act in that they are conditions in relation to which there is a real risk that the person, by reason of or for a reason connected with the condition or conditions, will not continue to be an eligible employee until the person attains his or her maximum retiring age:see discussion in Sheridan & the Commissioner for Superannuation (1993) 31 ALD 759 including reference to the Explanatory Memorandum at 761. In this case, the applicant had suffered from recurrent major depression although, in Dr Varghese's opinion, it was in remission at the time of his examination. The evidence of Dr O'Brien was that the applicant's personality disorder was "longstanding". On the evidence before it, the Tribunal is satisfied that a report prepared in 1983 would have revealed the diagnoses of personality disorder and major depressive disorder.
82. Under sub-section 16(4) of the 1976 Act, in the event that there was a real risk that the applicant, by reason of personality disorder and/or major depressive disorder or for a reason connected with personality disorder and/or major depressive disorder would not continue in the APS until she attained her maximum retiring age, a BCC was to be issued in respect of those conditions. In Sheridan & the Commissioner for Superannuation (1993) 31 ALD 759 at 760-2, the Tribunal adopted a qualitative meaning for the term "real risk" in that it was one that was not fanciful, unrealistic or far-fetched. Dr O'Brien gave evidence that the applicant's personality disorder and major depressive disorder did place her at greater risk of retirement before her maximum retirement age (exhibit 2) and the Tribunal accepts her evidence in that regard, mindful that she had been the applicant's treating psychiatrist for some 10 months. The Tribunal is satisfied that there was a real risk, as provided for in sub-section 16(4) of the 1976 Act, in relation to personality disorder and major depressive disorder and that, as a result, a BCC would have been issued specifying those conditions.
83. The third issue for the Tribunal, in accordance with sub-section 66(2) of the 1976 Act, is whether the applicant's incapacity which brought about her retirement in 1988 was caused or substantially contributed to by any condition which would have been specified in a substitute BCC or a condition connected with such condition(s). It is not disputed that the applicant was retired because of the effects upon her of OCD and, therefore, the Tribunal must determine whether OCD in the applicant was caused or substantially contributed to by her personality disorder and/or major depressive disorder.
84. In Commissioner for Superannuation v Benham (1989) FCR 413, the Full Federal Court referred to the meaning of substantial contribution in the first limb of sub-section 66(2) of the 1976 Act. The Court said that the provision would be satisfied if the condition which produced retirement arose out of the condition certified in the BCC in the sense that it was "sufficiently proximate" or if it formed "part of a wider condition sufficiently closely involving the certified condition" (at 421). In relation to the second limb of the provision, in order to be connected with a pre-existing condition, a causal relationship need not be established: see Perret v Commissionar for Superannuation (1991) 29 FCR 581 at 592.
85. The evidence relevant to the matters in sub-section 66(2) is that of Dr Varghese and Dr O'Brien. Dr Varghese said that a person with major depression was not at greater risk of contracting other mental problems although he said that there could be conditions associated with the depression such as panic attacks, increased prospect of suicide or alcohol problems. He denied any increased risk of OCD but said that depression might lead to a presentation of OCD symptoms such as recurrent thoughts or checking behaviour rather than primary OCD. Dr Varghese also referred to a person who has a general neurotic syndrome as being someone who was vulnerable to the development of either depressive disorder or OCD. In contrast, Dr O'Brien said that a relationship exists between the occurrence of anxiety/depressive disorders and other anxiety-based disorders such as obsessive compulsive disorder and also that an individual with a personality disorder was more likely than another to develop OCD; that an individual with major depressive disorder was at a greater risk of developing OCD; and that an individual with both major depressive disorder and personality disorder was at inreased risk of developing OCD.
86. The Tribunal is satisfied that the evidence of Dr O'Brien is sufficient to establish that the applicant's OCD was substantially contributed to by her personality disorder and depressive disorder. Further, the Tribunal prefers her evidence to that of Dr Varghese on the basis of her association with the applicant over 10 months in contrast to the single consultation that Dr Varghese had with the applicant.
87. The Tribunal is satisfied, in accordance with sub-section 66(2) of the 1976 Act, the applicant's incapacity from OCD which brought about her retirement in 1988 was substantially contributed to by personality disorder and/or major depressive disorder, conditions which would have been specified in a substitute BCC.
Decision
88. The Tribunal varies the decision under review and determines that:
(i) the applicant failed to give information that she was required to give or gave false or misleading information in connection with the medical questionnaire completed on 14 July 1983;
(ii) if she had not failed to give that information or had not given that false or misleading information then the Benefit Classification Certificate issued in respect of her would have specified the additional conditions of personality disorder and major depressive disorder in addition to allergic rhinitis;
(iii) that a substitution Benefit Classification Certificate specifying personality disorder and major depressive disorder be issued effective from 4 January 1984; and
(iv) the incapacity which was the ground for the applicant's retirement, namely, obsessive compulsive disorder, was caused or was substantially contributed to by the condition or conditions specified in the Benefit Classification Certificate or was connected with either or both of such condition/s.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of:
Deputy President Don Muller, Mr R G Kenny and
Mr B J McCabe, Member.
Signed: ...................................................................................
C. O'Donovan, Associate
Date of Hearing 26, 27 June 2002
Date of Decision 8 January 2003
Solicitor for the Applicant Mr Porter
Counsel for the Applicant Mr Reed
Solicitor for the Respondent Mr. Whithear
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