Summerville and Comcare [2009] AATA 509 (3 July 2009)

Last Updated: 6 July 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 509

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/0203

) No 2007/4621

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DAVID SUMMERVILLE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Ms Robin Hunt, Senior Member Dr Ion Alexander, Member

Date 3 July 2009

Place Sydney

Decision

The decisions under review are varied as follows: The reviewable decision dated 22 December 2006 is varied to find that the applicant has an entitlement to receive compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) in respect of adjustment reaction with mixed emotional features, major depressive disorder, recurrent episode and psychogenic pain, site unspecified; and The reviewable decision of 18 September 2007 is varied to find that the applicant has an entitlement to receive compensation pursuant to sections 24 and 27 of the Act in respect of at least 10% permanent impairment. The tribunal makes no order as to costs but notes that the applicant is entitled to reimbursement of costs as agreed or taxed, and the parties have leave to apply and make submissions in this regard.

...................[Sgd].....................
Ms Robin Hunt
Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for stress, depression, adjustment disorder – applicant employed at Sydney Airport – psychological injury or aggravation of pre-existing condition – whether employment materially contributing factor – consideration of exclusionary provisions – decisions under review varied.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 7(7), 14, 24, 27

Comcare v Porter (1996) 138 ALR 469

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

Re Newham and Australian Telecommunications Corporation (1990) 22 ALD 783

Weigand v Comcare [2002] FCA 1464; (2002) 72 ALD 795

REASONS FOR DECISION

3 July 2009

Ms Robin Hunt, Senior Member Dr Ion Alexander, Member

INTRODUCTION

1. Mr David Summerville was working with the Border Control team at Sydney Airport when he became distressed and was taken to Kareena Private Hospital. Mr Sullivan recovered sufficiently for release from hospital and subsequently made a claim for compensation against his employer. He had commenced employment with the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) (the predecessor to the Department of Immigration and Citizenship) in November 1999. He claims he suffered a psychological injury or aggravation of a pre-existing condition to which his employment with the Department was a materially contributing factor.
2. He is seeking review of two decisions made by the respondent, Comcare. The first application (2007/0203) concerns a determination made on 3 July 2006 denying liability to pay compensation, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’), for “adjustment reaction with mixed emotional features”, “major depressive disorder, recurrent episode” and “psychogenic pain, site unspecified”. The determination was affirmed on reconsideration on 22 December 2006.
3. The second application (2007/4621) concerns a determination made on 5 July 2007 denying liability to pay compensation, pursuant to sections 24 and 27 of the Act, for permanent impairment and non-economic loss. This determination was affirmed on reconsideration on 18 September 2007.
4. Comcare maintains that Mr Summerville’s failure to obtain an employment benefit, in the form of leave he requested, was an operative factor in causing his psychological condition, thereby excluding Mr Summerville from the definition of injury pursuant to subsection 4(1) of the Act. In the alternative, Comcare contends that Mr Summerville’s injury is not an injury for the purposes of the Act by reason of his wilful and false representations bringing him within the terms of subsection 7(7) of the Act.

ISSUES

5. The tribunal must decide:
   1. Whether Mr Summerville suffered a psychological injury, namely, “adjustment reaction with mixed emotional features”, “major depressive disorder, recurrent episode” and “psychogenic pain, site unspecified”, or an aggravation of a pre-existing condition to which his employment with DIMIA was a materially contributing factor?
   2. Whether Mr Summerville is disentitled to compensation by virtue of an exclusionary provision in subsection 4(1) of the Act, namely that his injury was a result of a failure to obtain an employment benefit?
   3. Whether subsection 7(7) of the Act applies?
   4. Whether Comcare is liable to pay compensation to Mr Summerville pursuant to sections 14, 24 and 27 of the Act?

BACKGROUND

6. Mr Summerville was born on 4 August 1962 and is 46 years of age. He sustained a right shoulder injury while serving in the Australian Army between 1979 and 1983. In 1994, he underwent spinal fusion as a result of a motor vehicle accident while travelling to work at the Department of Corrective Services. In 1999, he was involved in another motor vehicle accident while driving a bus and suffered whiplash injury to his neck. Mr Summerville gave evidence that he suffered a psychological injury during his employment with DIMIA. He said that, when he went to work at the Airport, he was suffering from chronic pain from a past back injury but this did not prevent his working. He said he was “ecstatic” to get the position in the Border Control team at the Airport.
7. Mr Summerville commenced employment with DIMIA on 8 November 1999, according to the Department of Immigration’s employee records. He initially worked in the Business Centre at the Rocks and then transferred to Sydney Airport in October 2001 where he worked as an Immigration Officer in the Border Control team. In January 2004, he transferred to another section of the Airport, the Travel Unit, and on 22 November 2004 took long term leave. Mr Summerville’s employment with the Department ceased on 24 December 2008.

CONSIDERATION OF THE EVIDENCE

8. On or about 22 April 2002, Mr Summerville complained of chest pain and was admitted to Kareena Private Hospital for observation. Dr Ban Lau, cardiologist, reported the chest pain was stress induced. Mr Summerville claims that the pain came on while he was dealing with an angry passenger in the course of his work.
9. On 16 January 2006, Mr Summerville completed a claim for workers’ compensation citing “stress, depression, adjustment disorder” which he attributed to “work pressure and fatigue”. On the form he stated that he was injured on 22 April 2002 and sought treatment from Dr Robert Bezic on 24 April 2002. His claim was supported by an unsigned letter from Dr Edmund Wong She, general practitioner, dated 29 September 2005.
10. Dr Wong She’s letter stated that Mr Summerville had been under his care since 10 months prior and had shown signs of clinical depression and was on medication for this illness. The letter further stated that Mr Summerville had reported being subjected to “restrictive and petty work rules”, “being required to perform tasks without adequate training”, “constant, intrusive surveillance or monitoring”, “no say in how your job is done”, “shouting, or abusive language”, “open or implied threat of the sack or demotion”, and “oppressive, unhappy work environment” by his “shift supervisor” during his time as Airport Inspector. Mr Summerville also reported issues with respect to overpayment of salary and failing to obtain purchased leave.
11. On 29 September 2005, Dr Wong She certified that Mr Summerville suffered from “stress, depression and adjustment disorder” as a result of “work related stressors by high work load and understaffing” on 22 April 2002, and was unfit for work from 29 September 2005 to 29 October 2005. He recommended review by a psychologist and anti-depressant medication.
12. The letter went on to name Mr Summerville’s tormentor as his “Shift Supervisor Ms Sandra Silver (sic)”. It also stated that Mr Summerville had reported these complaints to “the new Immigration Manager at the Airport”, Ms Petra Canard. The letter also said claims made could be substantiated by “colleges”, presumably meaning colleagues. As well, the letter recounted some problems with overpayment and Mr Summerville’s concern that he was being blamed for this. Ms Shuttleworth and Ms Silva attended the tribunal hearing and gave oral evidence.
13. Dr Wong She further certified Mr Summerville as unfit for work on 1 November 2005, 29 November 2005, 12 January 2006, 10 March 2006, 13 April 2006, 8 May 2006, 2 June 2006, 18 July 2006 and 23 April 2007 for “stress, depression and adjustment disorder” and recommended the same or similar management plan on each occasion.
14. Mr Summerville gave evidence that he was not on anti-depressants at the time when he commenced duties at the Airport. He told the tribunal he was “put on anti-depressants after the bloke hit me in the bus” but had ceased this treatment before he worked at the Airport. He claimed that his doctor told him the treatment was an anti-depressant but also used for pain. So he gave it a go for a little while and found that it was no good, so after a week or two he was back on Panadeine Forte.
15. Mr Summerville complained of a series of incidents at work culminating in the event which led to his being hospitalised on 22 April 2002. He blamed these incidents for his psychological condition. He provided two written statements in support of his compensation claim dated 20 March 2006 and 18 July 2006.
16. In his oral evidence, Mr Summerville told the tribunal one of the first ‘incidents’ occurred when he was standing behind the line at the incoming customs checks waiting for people to come through one day. He said although there was air-conditioning, “I was just a lather of sweat from head to toe ... I was saturated, and a customs officer came up to me and asked me if I was okay, at which time Ms (Sandra) Silva was just passing while the conversation was just being said, and I said, ‘I don’t know’. I said, ‘I don’t feel that well’ and she (Ms Silva) looked at the customs officer and said, ‘That’s because he’s fat. Look at him’.”
17. Mr Summerville said this incident happened about six to twelve months after he began working at the Airport. He said he recalled feeling embarrassed and ashamed and that “if there was a hole there big enough to swallow me like, I wish it would have took me.” He said he thought his relationship with Ms Silva before the incident was fine and that there were no problems.
18. Mr Summerville recounted that a few weeks after the overweight comment, Ms Silva confronted him about his report writing. He said Ms Silva told him “we do not write reports here in the first person. We write a story”. Mr Summerville said he had been told otherwise by Mr Neville Nixon (the airport manager) who said he had to write in the first person. Mr Summerville said this contradictory advice made it very hard on him and Ms Silva was rude and abrupt, “She kept telling me that I was doing things wrong”. Mr Summerville said he had a meeting with Mr Nixon and Ms Silva was present and Mr Nixon provided individual critiques on how they were performing. He said a week or so after the meeting, he got another case where he wrote the report in the first person, and when Ms Silva saw that he wrote it in the first person again, she said, “No. That’s not how we do it. You will write it as a story.” Mr Summerville said he then rubbished everything that he had written and wrote his reports as a story.
19. When asked whether he talked to anyone about what was happening at work or about the confusion and embarrassment that he had been feeling, Mr Summerville said he spoke to staff members who were on shift with him at the time, one of them being his colleague, Colleen Shuttleworth. Employment records supplied by the Department of Immigration and Citizenship or DIAC, formerly DIMA or DIMIA at different times, show that Ms Shuttleworth worked for Immigration from 3 December 1973 and started at the Airport in March 1996. She left the employment of the Department on 18 July 2003.
20. Ms Shuttleworth gave evidence at the hearing. She had also made a statutory declaration on 8 January 2007 and a statement on 16 March 2008. In her written statement of 16 March 2008, Ms Shuttleworth said she first came to know Mr Summerville when she worked on the ‘C’ shift at the Airport. She was of the opinion that Mr Summerville was the individual targeted by Ms Silva on a day-to-day basis. She said “staff used to joke that their lives were made easier when David was present as criticism would be directed to him”. She said Mr Summerville was often dressed down and criticised in front of the whole team. She also said the situation was compounded by the nature of the work they were performing. For example, staff would receive a tip that there would be incoming outlaw motorcycle gang members which a member of staff would then have to interview. When these situations occurred, Ms Shuttleworth said it was usually Mr Summerville that was allocated such work as he was physically the largest male member of the staff. Ms Shuttleworth said she felt relieved when the task was allocated to someone else. She said she had problems coping with the nature of the work and eventually left the Department in 2003.
21. Ms Silva also attended the tribunal to give evidence. She painted a different picture for the tribunal. Ms Silva gave evidence that she got on well with other staff including Mr Summerville. She told the tribunal she started work at Sydney Airport as Olympics Planning Officer in 1999. The employment records show that Ms Silva left the Airport in 2004. When the Olympics was over, she was made Duty Manager supervising the ‘C’ Shift and, in or around 2001, managed Mr Summerville and Ms Shuttleworth. She said there were roughly 6 to 8 people in her team. She ceased working at the Airport in March 2004. Mr Summerville had already left when she left her position as Manager of ‘C’ Shift. She explained that the predominant function of the ‘C’ shift was immigration clearance work for both arrivals and departures. There were two shift supervisors below her in rank, who had day-to-day carriage of the work in their particular pier and who also devised the monthly rosters. She also said they were the first point of reference for officers who had any concerns or queries in regards to the referrals that they were dealing with.
22. When asked to clarify Mr Nixon’s role in relation to the management or control of ‘C’ shift, Ms Silva said “Neville was responsible for all of the shifts, in essence, of the airport. He was the main point of contact between our executive office in the state and the airport. He was also, you know, the strategic planner and main stakeholder when it came to the partners that we had at the airport.” Ms Silva said Mr Nixon did not have much “hands-on work” in respect of Mr Summerville and such persons at his level. Ms Silva vehemently denies ever calling Mr Summerville “fat” or using abusive language to him or publicly humiliating him in front of the team. She said she treated Mr Summerville like she did every other staff member that she has managed.
23. Ms Silva made two written statements dated 20 April 2006 and 25 August 2007. In her statement of 20 April 2006, Ms Silva expressed she had concerns with Mr Summerville’s work performance in regard to the standard of his work, specifically his interviewing and writing skills. She said that Mr Summerville was aware of these concerns as they formed part of formal discussions between them in regard to his Performance and Learning Agreement. In order to ensure he received the necessary support, Mr Summerville was advised that the shift supervisors would sit-in on interviews he conducted and that his decision records and reports would be read before they were finalised. On questioning from the tribunal as to how these concerns arose, Ms Silva replied “I was in discussion with the shift supervisors. There were concerns with his written skills and the way that he conducted his interviews.”
24. With respect to workload and staffing issues, Ms Silva agreed Sydney Airport is a busy Airport and great demands are placed on shift workers during the peak arrival/departure periods. She said, “we all complained from time to time, of being ‘stressed’ however I was not aware that Mr Summerville’s stress was any greater than anyone else’s. His assertion that he was ‘suffering work-related stress caused by a high workload as a result of understaffing at the Airport’ comes as news to me. He never expressed this to me when he returned to work after suffering the chest pains.” When asked by the tribunal who determined how various recreation and annual leave was allocated in the shift, Ms Silva said “it was up to the duty manager, the assistant manager to approve leave for people on the shift”, meaning she was the delegated person. She told the tribunal that she always made it very clear to her team that she could not approve everyone’s request for leave during the holiday periods, especially school holidays which was “incredibly busy”. She explained the process of applying and granting leave as such, “They would indicate in the leave-planner what dates they wanted to take and they would enter a request on the system for that leave. I would need to have a look at the background of that particular officer and by that I mean, ‘did they take leave during the last holidays?’ ‘Are there any particular concerns, family situations that would warrant them taking the leave above and beyond anyone else in the team?’” Ms Silva said that in her team, issues about leave during holiday periods were a regular occurrence.

Medical Evidence

25. There is material available to us about the medical treatment the applicant received when he was taken to hospital on 22 April 2002. He was treated by Dr Lau, a consultant cardiologist. In a letter dated 22 April 2002, Dr Lau reports that Mr Summerville was admitted to Kareena Private Hospital on 21 April 2002 complaining of chest pain and “heart skipping a few beats” associated with stress at work. Dr Lau’s diagnosis was stress induced pain and extrasystoles. He found no abnormalities on examination or investigation. He followed up with an exercise stress test which was normal: see Dr Robert Bezic’s note of 26 April 2002 below.
26. After his release from hospital following on the chest pain that hospitalised him in April 2002, Mr Summerville continued working until 18 January 2005, when he was granted 12 months leave without pay. On 29 September 2005, he attended his GP, Dr Wong She, and was given a workers’ compensation medical certificate.
27. Various medical opinions about Mr Summerville’s health and psychological condition are before us. Dr Wong She was Mr Summerville’s treating GP from early 2005 onwards and before that, his GP was Dr Bezic. Dr Wong She treated Mr Summerville after he moved to Coffs harbour early in 2005. His clinical notes supplied for the review date from 21 March 2005. In addition, Dr Skinner, Dr Gertler and Dr Bezic gave oral evidence. Mr Gomez, Dr Lau, Dr Wong She, Mr McCombie (psychologist), Dr Cadzow, Dr Strum, Professor Cousins and Dr Lovric provided reports/notes.

Dr Bezic

28. Dr Bezic, treated the applicant following the incident in April 2002. In a letter dated 15 March 2006, addressed to Dr Wong She, Dr Bezic writes that the applicant was under his care from July 1998 to January 2005, when he moved away from Sydney. He reported that Mr Summerville rang him a few days previously requesting a medical report detailing stresses he had encountered during work at Sydney Airport. Dr Bezic noted, after perusing his records, that the applicant had a whiplash injury in a car accident (MVA) in 1999 and subsequently developed PTSD and depression. In particular, he suggested to Dr Wong She that he should note that the applicant was receiving treatment from a psychologist, Mr Fernando Gomez, in early 2001, a few months before starting work at the Airport. Dr Bezic added that he had suggested to the applicant that it would be difficult to prove that his present depression was due to his previous job.
29. Dr Bezic gave oral evidence that:
    • he had prescribed Prothiaden for depression but agreed that it would have been helpful for the headaches suffered by Mr Summerville;
    • indicated that it was his usual practice to explain to patients the reasons for prescribing a medication;
    • he changed the prescribed medication to Endep which was similar to Prothiaden but a bit more effective for headaches;
    • in December 2004 he had given Mr Summerville a prescription for Endep at the top range of the dose and the prescription was for 6 months;
    • for the six months prior to Mr Summerville going to Coffs Harbour there was no entry in his notes that referred to any problems in respect of his employment and that most entries were related to his joint injuries;
    • in cross examination, Dr Bezic confirmed that his recollection was that Mr Summerville had an ongoing issue with anger and low mood since his MVA in 1999 and that this had been an ongoing issue before he commenced employment at the Airport;
    • Dr Bezic was unable to confirm most of Mr Summerville’s claims in respect of the actual events at work but confirmed that it was his usual practice to write down symptoms and relevant complaints reported by a patient
      
30. From the information recorded by Dr Bezic and Dr Bezic’s oral evidence we conclude that, between 1999 and January 2005, Mr Summerville was suffering from significant problems with pain, particularly headaches, cervical pain and shoulder pain. He was also having problems with sleep, mood swings and anger. During this period Mr Summerville was taking large amounts of narcotic analgesia and from June 2001 to January 2005 was being treated with maximum doses of anti-depressant medication.
31. From his oral evidence, we note that Dr Bezic did not attribute Mr Summerville’s various symptoms to work-related issues apart from the one occasion in April 2002 when Mr Summerville suffered chest pain at work. We also note that Mr Summerville’s recollections in his oral evidence were not consistent with Dr Bezic’s contemporaneous notes.

Mr Gomez, consultant clinical psychologist

32. As Dr Bezic mentioned, Mr Gomez, a consultant clinical psychologist treated Mr Summerville. In his report dated 29 May 2001, Mr Gomez reported:

• 5 consultations in January 2001;
• History of MVA on 1 July 1999 with subsequent numerous symptoms including constant neck pain, headaches, sleeping difficulties and depressed mood;
• Reported significant problems with driving; and
• No mention of difficulty at work apart from working long hours.

33. Mr Gomez diagnosed post traumatic condition (PTSD) following the MVA in July 1999, but not severe enough to meet DSM IV criteria for PTSD. He further noted improvement of some symptoms with psychological treatment and anti-depressant medication (Prothiaden 150 mg).

Dr Wong She

34. Dr Wong She’s notes show:

• February 2005 – April 2005: No mention of work problems - scripts for Endep, Codalgin forte and Stilnox
• 31 May 2005: c/o shoulder pain - stressors with past Immigration department and? overpayment 20K
• 26 July 2005: long discussion regarding depression, low mood, teary, late insomnia, depressed - stressors ... although has had past stressors with work and coped
• 12 August 2005: TDR completed regrading chronic right shoulder pain and associated depression
• 17 August 2005: TDR regarding lumbar back fusion, right ankle and right knee
• 22 August 2005: chronic pain syndrome, depression stable, refer pain clinic
• 31 August 2005: David has trouble talking to others about his pain and depression - DVA forms for disability
• 20 September 2005: depression unchanged
• 23 September 2005: long discussion regarding depression starting while working at Immigration Department last 2 years, does not feel he could manage working back next year, will discuss in more detail next week and likely WorkCover

35. We note that although Dr Wong She on 23 September 2005 discussed with the applicant that his depression started in the “last two years”, the main incident about which Mr Summerville complained occurred in April 2002, three years previously.
36. Dr Wong She also recorded in his notes:

• 21 September 2005: Mr McCombie yesterday (psychologist)
• 29 September 2005: Workcover regarding depression, stress and adjustment disorder – refer psychologist
• 29 March 2006: refer Dr Cadzow, psychiatrist
• 8 May 2006: right shoulder pain persists ... DVA for depression post chronic pain
• 10 May 2006: DVA medical pension for depression contributed by chronic pain in shoulder knees and ankle. Above was discussed by Paul Cadzow, who felt that his pains had a contributing role in his depression

37. These notes show that during the period from September 2005, Mr Summerville was suffering from depression with chronic pain, particularly in the right shoulder, being a prominent feature. As to cause and effect, we have considered and compared the various opinions and evidence from medical practitioners who have examined and reported on Mr Summerville’s condition over a period of years.
    

Mr Ian McCombie, psychologist

38. Mr McCombie of Coffs Harbour, saw Mr Summerville on referral from his GP in November 2005. He diagnosed chronic adjustment disorder with mixed anxiety and depressed mood of a moderate to severe scale. He further thought the applicant was suffering pain disorder associated with psychological factors and a general medical condition. He took a history of reactive depression following a 1996 motor cycle accident but found no other non-work related causes of the applicant’s condition.
    

Dr Paul Cadzow, consultant psychiatrist (treating)

39. Dr Cadzow saw the applicant in March 2006. In his letter to Dr Wong She, the applicant’s then treating GP dated 4 April 2006, Dr Cadzow reported that Mr Sullivan gave a history that he was most recently working as an immigration officer in Sydney where he experienced a particular supervisor as unhelpful and undermining. Mr Summerville reported a gradual deterioration in his mood with exacerbation of his symptoms and deterioration in his sense of coping. From the respondent’s documents before us we note that by this time, Mr Summerville had not been at work for almost 16 months and it was almost 28 months since he had worked with the particular supervisor.
40. We also have before us a report Dr Cadzow furnished to the Department of Veterans’ Affairs on 21 July 2006. The history of the presenting complaint noted by Dr Cadzow focussed almost entirely on Mr Sullivan’s emphasis on his supervisor and his work as an immigration officer. There was little reference to other problems, particularly the chronic pain, significant narcotic use and treatment with significant anti-depressant medication dating back to 2001.
41. In the report, Dr Cadzow makes a sweeping statement that Mr Summerville had suffered chronic psychiatric symptoms over a number of years which had been intrusive and undermining of his normal functioning but he provides no opinion as to time of onset or causation. In our view, the report is unhelpful as it lacks analysis and particularity and gives the appearance of being designed to assist Mr Sullivan in his disability and incapacity for work claims at that time.
42. In a referral letter to Dr Strum, consultant psychiatrist, Dr Cadzow notes that Mr Summerville has “some interacting and mutually exacerbating problems which have been difficult to bring into remission” and that he has a major depressive disorder, which is complicated by severe right shoulder pain and chronic sleep deprivation due to pain. He notes that a pending worker’s compensation case with Comcare is causing Mr Summerville ongoing apprehension and distress.
43. In his 26 July 2006 letter to Comcare, Dr Cadzow noted symptoms post MVA but considered that his had been successfully treated two years before Mr Summerville’s start at DIMIA. This is not, of course, consistent with documentary evidence or the contemporaneous evidence of his treating doctors.
44. Dr Cadzow also states that the strength of Mr Summerville’ emotional reaction to the issue of his purchased leave appears to have been informed by his already present psychiatric symptoms and perception of harassment by his supervisor rather than the principle aetiology of his current emotional problems. We note that the overall impression given by this letter is quite different from that expressed in the earlier letter to the Department of Veterans’ Affairs. Dr Cadzow’s written opinions are inconsistent depending on to whom they are addressed. As a treating doctor, whose objective is to treat his patient’s symptoms, Dr Cadzow’s opinions and diagnosis fail to provide an in depth analysis of causation.

Angeline Landry, psychologist

45. Angeline Landry assessed the applicant on 24 July 2006 for assistance with his proposed return to work. She reported his diagnosis and current symptoms as adjustment disorder with anxiety and depression and pain disorder (right shoulder, right knee and right ankle). She suggested a time frame of one to two months for his graduated return to work. She noted he was seeing Dr Paul Cadzow and Mr McCombie and might benefit from a pain clinic.
    

Dr John Strum, consultant psychiatrist (treating)

46. Dr John Strum of Coffs Harbour, treated the applicant in 2007. In his letter to the then GP on 4 January 2007, Dr Strum reports that Mr Summerville claims 2 years of harassment by the supervisor. He refers to depression diagnosed in 2005 due to the supervisor and Mr Summerville’s distress regarding a phone call about $20,000 overpayment of salary which he would be required to repay. Dr Strum also notes the occurrence of the MVA with subsequent stress disorder related to driving and chronic pain condition of the right shoulder, knee, ankle and lower back. Dr Strum concludes that the applicant’s is a complicated case but that there is no doubt Mr Summerville is suffering from a chronic depressive illness of a kind that is associated with reaction to stresses.
47. Dr Strum further notes that chronic pain is an issue and that, in respect of the alleged harassment, comments that “It could be that what Mr Summerville has described as harassment, could be a reaction to some of the personality changes which are part and parcel of his depressive illness which he may have exhibited at work”. In subsequent letters, the doctor details the various symptoms suffered by the applicant and various complaints about his treatment at work. In a letter dated 7 January 2008, Dr Strum describes Mr Summerville as being very angry about what has happened to him and concludes that he has a classical PTSD together with an adjustment disorder with anxiety and depressed mood.
48. The difficulty with Dr Strum’s correspondence is that, as a treating psychiatrist he has focussed, quite correctly, on Mr Summerville’s current symptoms and treatment and does not really provide a satisfactory analysis or opinion in respect of the issue of causation. Our review and determination requires us to form an opinion about causation to the extent that we must decide what role, if any, the workplace situation, was a contributing factor.

Professor Cousins, pain management physician

49. Professor Cousins assessed and reported on the applicant in letters to Dr Wong She and the Department of Veterans’ Affairs dated 16 May 2007, 23 May 2006 and 27 June 2007. The assessment report of 16 May 2007 noted that Mr Summerville suffered injuries 25 years ago when playing Rugby for the RAR and that since that time his multiple occupations had involved heavy lifting. In 1995 he had a spinal fusion and double discectomy following a motor bike accident. Since 1983 he had pain in his right knee as a result of a football injury. In 2001 he sprained his right ankle and has suffered increasing pain since 2005. Currently he had complained of severe pain in his shoulder.
50. These documents clearly support a conclusion that the dominant problem for Mr Summerville has been a longstanding history severe chronic pain with significant effects on his physical emotional well being.

Dr Gertler, consultant psychiatrist

51. Dr Gertler saw Mr Summerville for medico-legal purposes in 2007 and reported. On 29 March 2007, his medico-legal report set out the history he obtained of Mr Summerville’s working as an Immigration officer and coping until the appointment of a new supervisor. He recorded that Mr Summerville complained of various difficulties including being verbally abused, humiliated and threatened with demotion. These difficulties were said to have continued until episode of chest pain at work in April 2002. Mr Summerville also complained of increased work pressure due to understaffing and excessive workload. Dr Gertler noted that Mr Summerville had been started on antidepressant medication after being referred to a psychiatrist in early 2006.
52. Dr Gertler diagnosed “chronic adjustment disorder with anxious and depressed mood”. He commented that Mr Summerville’ continuing disabilities relate primarily to the depressive component of the adjustment disorder, for example, social withdrawal and his “preoccupation with his experiences while working at Kingsford Smith Airport”. He concluded on 29 March 2007 that Mr Sullivan suffered 10% whole person impairment.
53. In our view, Dr Gertler’s opinion of causation is based on an inaccurate history or selective history provided by Mr Summerville, which not consistent with contemporaneous documents and is a misleading basis for Dr Gertler’s opinion and diagnosis.
54. On 7 January 2008, in response to additional information, including Dr Skinner’s reports, Dr Gertler confirmed his opinion that Mr Summerville suffered from chronic adjustment disorder with anxious and depressed mood but added that “it does appear that he was experiencing depression as a result of chronic pain , from which he had suffered for many years, which depression was associated with irritability and the abuse of alcohol”. The doctor then expressed the opinion that, as Mr Summerville had been able to function until being exposed to the alleged harassment by his supervisor, his employment with the Department of Immigration was “a material factor in causing the emotional decompensation into a more florid depressive reaction, including recurrent rumination about his work situation and social withdrawal. His employment also led to his requiring ongoing psychiatric treatment ”.
55. Again, we note this opinion is not consistent with the actual course of events as it is described in the contemporaneous records of Drs Bezic, Wong She and Mr Gomez or Mr Sullivan’s oral evidence. Dr Gertler may be trying to justify his earlier opinion which was based on the selective or erroneous history provided to him by Mr Summerville.
    
56. Dr Gertler in oral evidence confirmed his opinion that Mr Summervile’s symptoms were related to chronic pain and conceded that he did not usually treat people with chronic pain. Under cross-examination, Dr Gertler agreed that Mr Sullivan had not told him about the 1999 MVA and the subsequent results including his treatment with anti-depressant medication. Dr Gertler agreed that the dose of Prothiaden that had been prescribed for Mr Summervile at the time was appropriate for depression and that knowledge of this treatment would have been an important factor to be appraised of when forming an opinion on causation.
57. When asked whether chronic pain can manifest as depression or anxiety, Dr Gertler commented that people with depression or anxiety often present with chronic pain but agreed that the reverse proposition or his conclusion that Mr Summerville was suffering from depression as a result of chronic pain was contrary to his usual experience. In our view, Dr Gertler’s oral evidence revealed that he had no coherent understanding of Mr Summerville’s actual history when he provided his report and had based his original opinions on an inaccurate history which Mr Summerville provided to him and, thereafter, he tried to defend his opinions with inconsistent and unconvincing explanation.

Dr Yvonne Skinner, consultant psychiatrist

58. Dr Skinner saw the applicant on 19 June 2007 for medico-legal purposes. In her report of 6 July 2007, in addition to the history of the work place issues and the salary overpayment. Dr Skinner noted that Mr Summerville had been referred to Dr Cadzow following an incident in which he had hit a man who had allegedly assaulted his six year old son. This suggest s the applicant may have an anger management problem.
59. Dr Skinner also noted that Mr Summerville had not worked since January 2005, was taking both narcotic analgesic and high dose antidepressant medication and was suffering from significant depression. She further stated that it was difficult to make an assessment as to causation because Mr Summerville was already on similar medication in April 2002. She concluded that employment factors might have contributed to his condition but that chronic pain from back and cervical injuries were contributing to his psychological symptoms. Dr Skinner added that she believed that the overpayment of salary issue “materially contributed “to his psychiatric condition because of “his anxiety and distress’ but did not provide a satisfactory explanation for her opinion.
60. In her supplementary report dated 12 November 2007, written in response to additional documents, including Dr Bezic’s notes, Dr Skinner:

• diagnoses chronic depressive disorder; chronic pain and alcohol abuse in remission.
• notes that Mr Summerville has a number of past physical complaints and a history of depression
• states that “it is possible that his pain and depression impacted adversely on his relationship with his supervisor or that his interaction with Ms Silva and his perception of work problems were affected by his chronic pain and depression
• agreed with Dr Strum regarding personality changes
• also noted heavy alcohol consumption at the time might have contributed to his problems with insomnia and mood disorder.
• concluded that Mr Summerville was suffering from major depression, chronic pain, limitations on mobility because of physical injuries and alcohol abuse in remission

61. Dr Skinner observed that physical injuries all contributed to his mental problems. His chronic pain, narcotic analgaesic medications and physical limitations may have impacted on his capacity to work as well. Some of what he described as harassment could have been a result of his personality disorder. In this respect and in other opinion, Dr Skinner agreed with Dr Strum. His heavy alcohol consumption may also have played a role.
62. In the further report dated 22 August 2008, Dr Skinner observed that Mr Summerville’s medication, Prothiaden at dose of 225 daily, was higher than the usually recommended dose for treatment of depression. She assessed his whole person impairment at 25%.
63. In her oral evidence, Dr Skinner confirmed that 225 mg Prothiaden is a high dose that would be consistent with treating depression.
64. She expressed the opinion that there were several contributing factors to Mr Summerville’s psychological condition including chronic pain, the bus accident, perception of harassment, alcohol abuse and diabetes.
65. In response to a question from the tribunal, she expressed the opinion that chronic use of large doses of narcotic analgesics can affect the nervous system and cause problems with cognition and memory. Also chronic narcotic use can lead to mood disturbances such as depression.
66. She added that Mr Summerville was on a lot of medication and that the medication must be considered as a possible contributing factor because it may also contribute to feelings of depression and some mood disturbance
67. In response to questions from the tribunal, Dr Skinner revised her opinion with respect to permanent impairment from 25% to 10%. She concluded by saying that it was difficult to make an assessment with regard to causation because there were so many factors at play.
68. In our view, Dr Skinner’s evidence in respect of causation was uncertain and unconvincing and was clearly influenced by the somewhat piecemeal way in which she had obtained all the relevant information. In general her conclusions were in the form of simple statements with little explanation or analysis. Nevertheless her evidence did support a conclusion that there were several significant factors which may have contributed to Mr Summerville’s psychological condition and that he had been suffering from depression prior to the alleged difficulties with Ms Silva. Her evidence also supports a conclusion that Mr Summerville’s existing psychological problems were likely to have significantly influenced his work performance his perceptions of any interventions implemented by his supervisors. This conclusion is supported by other psychiatrists.

Dr Lovric, consultant psychologist

69. In a Fitness for Duty assessment dated 10 September 2008, Dr Kathryn Lovric, consultant psychiatrist, provided a comprehensive review of Mr Summerville’s history and in particular noted that when Mr Summerville was transferred to Sydney Airport in October 2001 there were problems with his work performance and he alleges that he was bullied and harassed by his supervisor.
70. Dr Lovric noted that Mr Summerville’s experience of psychiatric illness dated back to 1999 when he experienced anxiety after a motor vehicle accident and that his general practitioner started him on tri-cyclic anti-depressant medication which Mr Summerville had claimed was not for depression. Dr Lovric commented that the medication dose (Prothiaden 225mg) suggests that it was being prescribed for significant depression rather than solely to assist with pain management. Relevantly, Dr Lovric noted that Mr Summerville claimed that the anti-depressant medication was continued for only one month.
71. Dr Lovric concluded that Mr Summerville suffers from symptoms of major depression and noted that he is poorly motivated to return to work with DIMIA and that the combination of his poor motivation and level of irritability made a return to work impossible at that time. Dr Lovric added that Mr Summerville had now been suffering from symptoms continuously for approximately eight years and expressed the opinion that it is very unlikely that there will be improvement despite further treatment. She expressed no opinion as to causation.
72. In our view, Dr Lovric’s report provides the most useful summary of Mr Summerville’s psychiatric condition and her assessment supports a conclusion that Mr Summerville has suffered from a psychological condition with symptoms of depression albeit of varying severity since 2000, a conclusion that is consistent with the documentary evidence, particularly Dr Bezic’s notes.

FINDINGS

73. From the medical evidence before us, we are satisfied that, at the time of his claim in 2006, Mr Summerville was suffering from a psychological condition which included symptoms consistent with a diagnosis of major depression. What is not so clear is whether this diagnosis in 2006 could be considered a new diagnosis or merely an increase in symptoms of an underlying condition.
74. On balance, the evidence points to a conclusion that Mr Summerville was suffering from symptoms consistent with depression since 2001 albeit with differing levels of severity. As well, his symptoms in 2006 represented an exacerbation of an underlying chronic psychological condition.
75. In our view, it is also clear from the evidence that the dominant medical issue contributing to Mr Summerville’s problems was his persistent severe pain caused by consequences of several musculoskeletal injuries that occurred prior to his employment with DIMIA.
76. Mr Summerville attributes his depression almost exclusively to events which he claims occurred in the course of his employment as immigration officer. In particular, he claims that the psychological condition that he suffered in 2006 at the time of his claim was materially contributed to by the manner in which he was treated by Ms Silva in 2001 to 2003 and also by the notification in respect of his salary overpayment in 2005.
77. Mr Summerville also suffers from asthma, hypertension, diabetes mellitus and elevated cholesterol with all these conditions requiring regular medication.
78. The question which confronts the tribunal is whether any of the ailments suffered by Mr Summerville, or whether the aggravation of any of those ailments, was contributed to in a material degree by his employment with DIMIA.
79. Mr Summerville attributes his current condition almost entirely to his perceived harassment by Ms Silva and does not acknowledge the significance of other factors. This has led to selective histories given to the various psychiatrists. In his oral evidence, Mr Summerville claimed that he had not suffered from any psychological problems until the alleged harassment by Ms Silva, a contention which is clearly not supported by the contemporaneous medical records.
80. Dr Bezic’s records make only brief referral to problems at work but describe the ongoing problems with severe pain, the symptoms of depression, the chronic use of narcotic analgesics since 1999 and the use of antidepressant medication, a dose level consistent with the treatment of depression since June 2001.
81. The psychiatric evidence suggests that various factors operating at the relevant time are likely to have contributed to Mr Summerville’s having difficulties with his work performance and could also have influenced his perception of any intervention by a supervisor. On reflection, the difficulties in respect of pain, psychological symptoms and medication usage described in Dr Bezic’s notes would support this.
82. In her oral evidence, Ms Silva agreed that she had been giving special attention to Mr Summerville but that this was in context of performance management because of issues about his work performance that had been brought to her attention by his immediate supervisors.
83. We accept that this may have been perceived as harassment by Mr Summerville but we are not persuaded that this was a material contribution to the symptoms of depression in 2006. We note that during the relevant period Mr Summerville continued to have significant problems with chronic pain and was on significant doses of narcotic analgesia and antidepressant medication.
84. In our view, the evidence supports a conclusion that Mr Summerville had a longstanding history of significant and persistent psychological problems and notwithstanding his assertions the contribution of his employment to his condition is uncertain.
85. The medical evidence in our view does not satisfactorily address this issue as the opinions of the various psychiatrists are clearly influenced by Mr Summerville’s own views on the matter and his often selective and inaccurate reporting of the history.
86. We accept that at the time the perceived relationship with Ms Silva caused Mr Summerville some distress but are not persuaded that this amounted to a material contribution to his depression in 2006.
87. The issue in respect of the overpayment episode is more problematic. It would appear that following this episode, Mr Summerville’s psychological condition deteriorated as evidenced by an increase in the severity of his symptoms and the need for psychiatric support. In other words, his underlying condition was worse or was aggravated.
88. The question for the tribunal is whether his employment materially contributed to this aggravation. Mr Summerville’s treating doctor in September 2005 reported the efforts Mr Summerville made in an effort to resolve the issue and the circumstances he sets out have not been disputed by the respondent. Mr Summerville in his letter of 20 March 2006 provided a detailed account of the history of his dealings with immigration and his extensive efforts in trying to establish his correct entitlements and sort out the overpayment. This was no doubt very distressing for Mr Summerville, as he claims.
89. Dr Skinner in her report dated 6 July 2007 wrote that she believed that the overpayment of salary issue “materially contributed “to his psychiatric condition because of “his anxiety and distress’ but did not provide a satisfactory explanation for her opinion.
90. Several factors about which we have heard evidence may have materially contributed to Mr Summerville’s depressive illness. It is difficult to determine whether employment made a material contribution because of differing retrospective accounts. Nevertheless, Mr Summerville already was suffering from a depressive illness and this, as Dr Skinner observed, may have impacted on his capacity to work therefore increasing his perception of stress and poor interaction with the supervisor.
91. Failure to obtain leave over the school holidays also contributed to his dissatisfaction. His own evidence is that he became angry when leave was not granted. We are not persuaded that being angry amounts to evidence of a material contribution to a psychological disease. This occurrence caused Mr Summerville distress and anger but his perception of harassment and the argument about salary overpayment in our estimation, after hearing the oral evidence of Mr Summerville, were factors that severely impacted on him.
92. Overpayment of salary contributed to the problems he was experiencing at the time.
93. Notwithstanding the deficiencies in the factual evidence and the medical opinions, on balance, we are satisfied that the episode with salary overpayment did make a material contribution to the aggravation of Mr Summerville’s underlying psychological condition. Mr Summerville further gave evidence that he never asked at any time for that overpayment to be waived. He simply tried to demonstrate that he was entitled to the payments he received. We therefore agree that his pursuit of resolution of this problem was not pursuit of a benefit which might disqualify his claim for compensation.

Failure to obtain an employment benefit

94. Next we consider whether Mr Summerville’s condition is excluded from the definition of “injury” under the Act by the virtue of section 4. Subsection 4(1) of the Act defines ‘injury’ and ‘disease’ as follows:

injury means:
(a)  a disease suffered by an employee; or
(b)  an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

disease means:
(a)  any ailment suffered by an employee; or
(b)  the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

95. The suggestion of the respondent is that Ms Silva did have some discussions with Mr Summerville about his work performance but these were necessary and reasonable and designed to assist him in carrying out his job. Ms Silva in her oral evidence particularly explained that she was required to report to superiors herself and to assist the team to produce reports where persons were detained. She denied that she dealt with Mr Summerville in an objectionable manner. There is evidence from the applicant himself and from Ms Shuttleworth that Mr Summerville was singled out for unreasonable treatment but, on balance, we have not found that Ms Silva was at fault. Ms Silva’s evidence did not suggest that she took disciplinary action as such but had discussions with Mr Summerville in the normal course of her duties. Her evidence did not contain any flavour of disciple but she spoke of giving him support. She said in her written statement that she suggested he should take some time off if he were feeling stressed and agreed there was a heavy work load. She also described her concern and the assistance she offered when Mr Summerville had chest pains in April 2002.
96. In our view, there was no occurrence involving Ms Silva which involved disciplinary action. It was Mr Summerville’s perception at times that he was being singled out and harassed. We find no evidence that failure to obtain a benefit of any kind played a role in Mr Summerville’s mental illness. His claim is therefore not disqualified pursuant to subsection 4(1).

Does subsection 7(7) apply?

97. Subsection 7(7) provides that a disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
98. We have little evidence about whether Mr Summerville made such a wilful and false representation. The evidence is that Mr Summerville was suffering a mental disorder when he was employed by Immigration and may have been in denial about his mental state. His problem with perception of mistreatment has not assisted his recollection of events. For us to find he wilfully made a false misrepresentation, we need evidence of intention. Mr Summerville is not the best person to diagnose his psychological state, not being an expert. We also have seen no documentary evidence that Mr Summerville wilfully and falsely made records or produced bogus documents in connection with his employment.
99. While the failure to disclose a symptom or an illness in response to a specific question may be both willful and false, the Federal Court in Comcare v Porter (1996) 138 ALR 469 held that for a misrepresentation to come within subsection 7(7) the representation must be objectively false and made without any belief of its truth. In Re Newham and Australian Telecommunications Corporation (1990) 22 ALD 783 the tribunal held that “an incorrect statement is not willfully false”.
100. We have no basis for finding Mr Summerville behaved fraudulently in applying for a job or in the course of his employment. No evidence of this kind has been drawn to our attention.
101. It follows that Mr Sullivan’s claim is not disqualified pursuant to subsection 7(7) of the Act.

PERMANENT IMPAIRMENT CLAIM

102. Although we have criticised Dr Gertler’s opinion about causation, we note he found 10% whole person impairment in Mr Summerville in accordance with Comcare’s approved guide (second edition). As we have found that the quarrel about overpayment did materially contribute to Mr Summerville’s condition, Dr Gertler’s assessment of impairment is relevant to our decision about any entitlement to compensation under sections 24 and 27.
103. As well, Dr Skinner formed the opinion that Mr Summerville’s whole person impairment was 10%. The requirement that must be met for an entitlement to compensation under sections 24 and 27 is 10%. It follows that the applicant is so entitled.

DECISION

104. The decisions under review are varied as follows:

a. The reviewable decision dated 22 December 2006 is varied to find that the applicant has an entitlement to receive compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) in respect of adjustment reaction with mixed emotional features, major depressive disorder, recurrent episode and psychogenic pain, site unspecified; and

b. The reviewable decision of 18 September 2007 is varied to find that the applicant has an entitlement to receive compensation pursuant to sections 24 and 27 of the Act in respect of at least 10% permanent impairment.

105. The tribunal makes no order as to costs but notes that the applicant is entitled to reimbursement of costs as agreed or taxed, and the parties have leave to apply and make submissions in this regard.
     

I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Ion Alexander, Member

Signed: .........................[Sgd].............................

Jennifer Wong, Associate

Dates of Hearing 16-17 October 2008, 4-5 May 2009

Date of Decision 3 July 2009

Counsel for the Applicant Mr D Richards

Solicitor for the Applicant Slater & Gordon Lawyers

Counsel for the Respondent Mr M Gollan

Solicitor for the Respondent Dibbs Barker Lawyers