Vasiliu and Comcare [2009] AATA 719 (22 September 2009)

Last Updated: 22 September 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 719

ADMINISTRATIVE APPEALS TRIBUNAL No.  2008/2226

GENERAL ADMINISTRATIVE DIVISION
	Re		MICHELLE ANNE VASILIU

Applicant

And

COMCARE

Respondent

DECISION

Tribunal:

G. D. Friedman, Senior Member

Date: 22 September 2009

Place: Melbourne

Decision:

The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Senior Member

COMPENSATION – aggravation of neck injury and depressive disorder – claim for permanent impairment – diagnosis of psychiatric condition – whether bipolar disorder – whether material contribution by employment

Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 24, 28

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

REASONS FOR DECISION

22 September 2009 G.D. Friedman, Senior Member

1. Michelle Vasiliu suffered a neck injury on her way home from working for the Australian Taxation Office (ATO) in 2002. The respondent accepted liability to pay compensation for aggravation of neck sprain and aggravation of depressive disorder.
2. On 30 March 2007 Ms Vasiliu lodged a claim for permanent impairment. The respondent refused the claim on the basis that the neck sprain did not meet the threshold 10 per cent permanent impairment. At the hearing the respondent also argued that, despite its earlier acceptance of liability, there was no work-related impairment attributable to her psychiatric condition, so there could be no liability for permanent impairment.

LEGISLATIVE BACKGROUND

3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in effect at the relevant time, provides that:

Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

Injury is defined in s 4(1) of the SRC Act as including a disease, which in turn is defined as:

(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.

Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). Aggravation includes acceleration or recurrence.

4. Section 6(1) of the SRC Act provides:

Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
...
(b) while the employee:
...
(ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;

5. Section 24 of the SRC Act provides for the payment of compensation for injuries resulting in permanent impairment:

(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
...

The words permanent and impairment are defined in s 4(1) of the SRC Act as follows:

permanent means likely to continue indefinitely.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

The lump sum amount of compensation which is payable in accordance with s 24 of the SRC Act is calculated by reference to the degree of permanent impairment which, under s 24(5), is to be determined in accordance with the provisions of the approved Guide: the Guide to the Assessment of the Degree of Permanent Impairment prepared by Comcare in accordance with s 28 of the SRC Act. Under s 24(7), where it is determined that the relevant degree of permanent impairment is less than 10 per cent, compensation is not payable under s 24 (except in the case of certain specific categories of impairment, none of which is relevant here).

6. The approved Guide contains the impairment tables which form the basis of assessment of the degree of permanent impairment. Each table contains a description of the level of impairment and assigns a percentage of whole person impairment, that is, the impairment of the functional capacity of a normal healthy person to each description. Tables 5.1 and 9.15 relate to psychiatric conditions and cervical spine respectively, and specify the corresponding percentages of whole person impairment.

ISSUES

7. The issues before the Tribunal are:
   • What is the nature of the neck injury?
   • Did the neck injury or its aggravation result in a permanent impairment that is at least 10 per cent whole person impairment? If so:
   • Did the neck injury, or its aggravation, arise out of, or in the course of, Ms Vasiliu’s employment?
   • What is the nature of the psychiatric condition?
   • Did Ms Vasiliu’s employment with the ATO aggravate or contribute in a material way to her psychiatric condition? If so:
   • Was the psychiatric condition sustained while she was travelling between her residence and her place of work? If so:
   • Did the psychiatric condition result in a permanent impairment that is at least 10 per cent whole person impairment?
     

WHAT IS THE NATURE OF THE NECK INJURY?

8. By way of background Ms Vasiliu told the Tribunal that she qualified as a teacher before joining the Australian Public Service (APS) in 1992. She married in 1994 but by 1997 had separated from her husband. In 1994 she commenced with the Child Support Agency (CSA) in Cheltenham, and within three years she had been promoted to the position of team leader. She said that she was enjoying her work and was highly regarded within the CSA. However circumstances changed in 1997, when the ATO announced that the Cheltenham office was to close and CSA staff were to be re-located to Dandenong. Ms Vasiliu explained that the decision was made without consultation and was extremely unpopular. Subsequently ATO management decided that the re-location would be to Box Hill instead of Dandenong, which was opposed by most staff.
9. Ms Vasiliu stated that she lodged a hardship claim, preferring to work at Dandenong than at Box Hill. She was ultimately successful, although she said that the goodwill that had developed at Cheltenham was lost, and a number of staff resigned. She said that she commenced working at Dandenong on 31 August 1998, and on 3 September 1998 she was involved in a motor vehicle accident on her way to work, resulting in a whiplash injury to her neck. On 18 November 2002 she was involved in a second motor vehicle accident on her way home from work, and aggravated her neck condition. She said that she required several weeks off work.
10. In a report dated 14 June 2007 Dr P Stevenson, consultant physician, referred to Ms Vasiliu’s complaints of continuing non-specific neck pain. He found minor restriction of cervical movement and radiological evidence of a normal age-related degenerative change but no trauma. Dr Stevenson concluded that the pain would have been exacerbated temporarily by soft tissue strains arising from the two motor vehicle accidents, but there was a normal range of movement and no permanent pathology. He said that the pain is due to other health issues such as psychiatric illness and obtaining inappropriate treatment such as neck manipulation.
11. In a report dated 27 March 2006 Mr I Kelman, consultant orthopaedic surgeon, diagnosed mild cervical spondylosis, which he related to the history of the two motor vehicle accidents.
12. In a report dated 12 August 2009 Dr S Pratt, chiropractor, said that Ms Vasiliu presented on 31 March 2008 with a history of neck pain and headache that she had stated was caused by a motor vehicle accident in 1998 and had been aggravated by the 2002 motor vehicle accident. Dr Pratt said that the symptoms are consistent with chronic biomechanical and postural dysfunction.
13. Mr J Rush, orthopaedic surgeon, stated on 25 January 2007 that Ms Vasiliu suffered from a non-specific soft tissue injury involving the muscles and associated ligamentous structures around the lower cervical spine.

DID THE NECK INJURY RESULT IN A PERMANENT IMPAIRMENT THAT IS AT LEAST 10 PER CENT WHOLE PERSON IMPAIRMENT?

14. Mr Rush assessed an 8 per cent permanent impairment of the cervical spine under Table 9.15 of the Guide. Dr Stevenson noted non-specific neck pain with minor restriction of movement, and assessed 0 per cent whole person impairment under Table 9.15.
15. In respect of the neck injury the Tribunal accepts the evidence of Mr Rush, whose assessment of 8 per cent whole person impairment was based on Ms Vasiliu’s history, particularly the 2002 motor vehicle accident, and a physical examination. The Tribunal finds that the level of permanent impairment under Table 9.15 is 8 per cent, which is below the threshold of 10 per cent, so Ms Vasiliu has no entitlement to compensation for permanent impairment under s 24 of the SRC Act in respect of aggravation of neck sprain. Therefore there is no need for the Tribunal to consider whether the neck injury, or its aggravation, arose out of, or in the course of, her employment with the ATO.
    

WHAT IS THE NATURE OF THE PSYCHIATRIC CONDITION?

16. Dr K Lim has been Ms Vasiliu’s treating psychiatrist since 1998 and prepared a number of reports concerning his diagnosis and treatment of her psychiatric condition. Dr Lim described Ms Vasiliu as emotionally fragile, with issues such as her mother’s illness and the demands of parenthood affecting her ability to cope with the stresses of life. He considered that Ms Vasiliu was suffering from post-traumatic stress disorder with anxiety and depression. On 7 December 2006 he stated that Ms Vasiliu was suffering from a major depressive disorder which was likely to persist, and that she would be unlikely to cope with open market employment. On 20 September 2007 Dr Lim described Ms Vasiliu’s conditions as major depressive disorder, post-traumatic stress disorder and anxiety. He said that a hypomanic episode on 8 March 2007 at her child’s school had been caused by the effects of antidepressant medication.
17. On 22 September 2008 Dr Lim stated that Ms Vasiliu’s depressive episodes were related to the stressors of the motor vehicle accidents and her mother’s illness and death. He stated that in both depressive disorder and bipolar disorder depressive episodes can be triggered by these types of stressors. He concluded that Ms Vasiliu was suffering from a longstanding affective (depressive) disorder with episodes of a mood disorder, both of which appeared to have underlying chemical and genetic predisposing factors. In oral evidence Dr Lim stated that he is now treating Ms Vasiliu for bipolar disorder, and he stated that there was no evidence of this condition before the hypomanic episode in 2007.
18. Dr P Smith, consultant psychiatrist, stated in a fitness for duty report on 8 October 2003 that Ms Vasiliu suffers from mild anxiety and depression. He noted a depressive episode in 1998 following the breakup of her first marriage, and another in 2000 when her mother’s illness was diagnosed. Dr Smith referred to a history of psychiatric conditions suffered by her mother and her paternal uncle, and anxiety and depression suffered by Ms Vasiliu during her childhood and teenage years.
19. Dr B Trifiletti, occupational physician, stated in a report dated 14 October 2003 that Ms Vasiliu had a history of depression since 1998 and had suffered a relapse since 2002. She considered that Ms Vasiliu was suffering from depression with anxiety, and that the post-traumatic stress disorder was a separate condition related to the 2002 motor vehicle accident. On 1 December 2006 Dr Trifiletti stated that there had been only a marginal improvement in Ms Vasiliu’s condition and that Ms Vasiliu was wholly disabled for work. On 18 December 2006 she said that the depressive condition was treatment-resistant.
20. On 2 March 2004 Dr N Rose, consultant psychiatrist, stated that Ms Vasiliu’s depressive disorder was genetic in origin, and she had suffered from a fluctuating major depressive illness for many years. He said that Ms Vasiliu had been under treatment prior to the 2002 motor vehicle accident, which had aggravated her depressive disorder and had led to residual symptoms of her post-traumatic stress disorder.
21. On 24 March 2006 Dr G White, consultant psychiatrist, stated that Ms Vasiliu is suffering from major depressive disorder, recurrent, which was caused by genetic factors, vulnerable personality traits and life events, plus work issues concerning technological change and changes in the workplace. On 17 May 2006 and in subsequent reports Dr White said that the main ongoing stressors for Ms Vasiliu were the juggling of work commitments and family responsibility, together with her vulnerable personality and genetic predisposition. He told the Tribunal that recurrent depressive disorder is the same as bipolar affective disorder, and is treated with mood stabilisers. Dr White stated that Ms Vasiliu had probably suffered from the disorder since adolescence.
22. On 27 November 2006 Dr H Pham, consultant psychiatrist, stated that Ms Vasiliu suffered from depression with anxiety features and post-traumatic stress disorder in remission. He considered that her prognosis was poor.
23. In a report dated 25 September 2007 Dr M Overton, general practitioner, said that Ms Vasiliu suffered from major depression with elements of post-traumatic stress disorder. On the basis of the history given to him Dr Overton related Ms Vasiliu’s condition to the 2002 motor vehicle accident with elements of post-traumatic stress disorder, and to workplace stress. On 8 October 2007 Dr Overton reported a worsening of Ms Vasiliu’s depression.
24. Dr Y Greenberg, consultant psychiatrist, noted a history of mood disorder and stressful life events and stated in a report dated 9 December 2008 that Ms Vasiliu suffers from a severe psychiatric illness best described as bipolar affective disorder.
25. In a report dated 28 February 2008 Professor I Schweitzer, Department of Psychiatry, the University of Melbourne, stated that he examined Ms Vasiliu, who had been referred by Dr Lim, and had taken a history of episodes of mood elevation and severe depression beginning from the age of 17 years, together with anxiety and instances of panic attacks. Professor Schweitzer referred to obsessional personality traits and a strong history of depression. He noted that Ms Vasiliu has had at least two likely hypomanic episodes (in about 2000 and 2003) before the major episode in March 2007, and he diagnosed bipolar disorder which he said has been present for many years. In a further report dated 8 August 2008 Professor Schweitzer said that he had re-examined Ms Vasiliu and had little doubt about his earlier diagnosis of bipolar disorder with ongoing symptoms of anxiety.
26. On the weight of the medical evidence and the history given to the Tribunal and to various medical practitioners by Ms Vasiliu, the Tribunal accepts the opinions of Professor Schweitzer, Dr Greenberg and Dr White, together with the acknowledgment by Dr Lim in oral evidence that Ms Vasiliu has a longstanding affective disorder and that he is treating her for bipolar disorder. On this basis the Tribunal finds that Ms Vasiliu suffers from bipolar or affective mood disorder.

DID MS VASILIU’S EMPLOYMENT WITH THE ATO AGGRAVATE OR CONTRIBUTE IN A MATERIAL WAY TO HER PSYCHIATRIC CONDITION?

27. Ms Vasiliu stated that her employment with the ATO contributed to, or aggravated, her depressive disorder. She said that on 15 December 1998 she suffered her first depressive episode while on holidays in Thailand as a result of the stress of the attempt to prevent the re-location of the CSA from Cheltenham, and the effects of the 1998 motor vehicle accident. She was treated with antidepressants. She said that on her return she consulted Dr Lim and has continued to consult him for treatment.
28. Ms Vasiliu stated that she re-married in November 1999 and was coping well at work after her transfer to a position in Human Resources Skilling at the Dandenong office of the ATO, although she said she did not enjoy the location. In early 2000 she suffered her second major depressive episode after her mother was diagnosed with a serious illness. Her mother died in August 2001. Ms Vasiliu explained that in early 2002 her position was made redundant and her team was re-located to Box Hill. She said that she again lodged a hardship claim and in April 2002 was permitted to remain at Dandenong, although she had no permanent position. She found the entire process to be extremely stressful. She said that on her own initiative she completed two outstanding projects from her previous position and in July 2002 she commenced a temporary position in the Goods and Services Tax area of the ATO. In October 2002 a position in Human Resources Practice was found for her on a trial basis, although this did not prove to be successful and she had difficulty coping. She became severely depressed.
29. On 3 March 2003 Ms Vasiliu commenced a permanent position with the GST Workforce Solutions area at Dandenong. However she only remained in that position for half a day, as the work was of a technical nature and she felt that she was unable to cope with the duties. She said that she became severely depressed and on 5 March 2003 she suffered her third major depressive episode. She stated that she was admitted to a psychiatric hospital and spent several weeks as an inpatient. She did not return to work, and took accumulated leave for about a year. Ms Vasiliu said that in mid-2005 the ATO proposed a return to work program but she resisted, preferring to seek a position in other government agencies. She stated that the ATO agreed that she should not return to the ATO at that time, and in early 2006 with the consent of the ATO she obtained a position with Anglicare that involved the preparation of publications for that organisation.
30. Ms Vasiliu told the Tribunal that in August 2006 the writing projects were completed, and a further two psychiatrists had examined her and had agreed with Dr Lim that she was not fit to return to the ATO. However, the ATO insisted that she undertake a second return to work program involving a return to the ATO. She said that on 15 November 2006 she complied reluctantly with a direction to attend a meeting at the ATO, but felt that her employer was totally unsupportive and unsympathetic to her psychological issues. Ms Vasiliu said it was unreasonable that a return to work program was even contemplated at that time. She left the meeting feeling shocked and upset. She said that over the next few months she became severely depressed and agitated, and was unable to sleep.
31. Ms Vasiliu’s condition deteriorated and she stated that on 8 March 2007 a hypomanic episode, or agitated behaviour, occurred at her child’s school, which resulted in her admission to the psychiatric ward of a public hospital as an involuntary patient. She said that during her enforced stay she was diagnosed incorrectly with bipolar disorder and staff ceased her antidepressant medication She said that this had an adverse effect on her but was unable to convince the medical authorities that she should be released into the care of Dr Lim. She stated that after five weeks she was finally discharged, but by this time she was severely depressed and required four admissions to a psychiatric facility over the next few months, and an increase in her medication. She told the Tribunal that in May 2007 her employment with the Commonwealth was terminated on medical grounds. She said that she consults Dr Lim regularly and hopes to work again in the future, although she acknowledged that she will require medication for the rest of her life.
32. Under cross-examination Ms Vasiliu agreed that she had consulted a psychiatrist after the breakdown of her first marriage, and had been prescribed antidepressant medication. She also agreed that she had experienced depression during her teenage years and that other family members had been diagnosed with depression or mood disorder. Ms Vasiliu stated that the ATO had disregarded the medical advice by proposing a return to work at the ATO, and had acted unfairly by refusing her request for permission to continue her writing projects as part of her rehabilitation process.
33. In a 2003 report Dr Lim stated that work-related events, including the motor vehicle accident on 18 November 2002, had contributed to and exacerbated her depressive condition. On 16 June 2003 he stated that Ms Vasiliu had experienced a number of negative life events in 1998, including the first motor vehicle accident, interpersonal difficulties with her former husband, and the proposed closure of Cheltenham office of the CSA. In a further report dated 28 July 2003 Dr Lim noted that the work-related aggravation of Ms Vasiliu’s depressive disorder had continued.
34. On 4 January 2005 Dr Lim reported that Ms Vasiliu had experienced some post-natal depression for a brief period in 2004, which had been controlled with an increase in her antidepressant medication. He also stated that Ms Vasiliu was anxious about returning to work, and he had recommended that she not continue at the ATO because she had not coped well with the changes that had occurred in the work environment. On 12 December 2005 Dr Lim noted that Ms Vasiliu had reported anxiety in coping with the demands of her workplace case manager. Nevertheless Dr Lim stated that the aggravation of her psychiatric condition as a result of the 2002 motor vehicle accident had subsided and that she was fit to undertake a return to work program, although she would require ongoing treatment.
35. On 8 November 2006 Dr Lim reported that Ms Vasiliu’s psychiatric condition had deteriorated because of the stresses in respect of her request to continue writing-based work, and her reluctance to return to the ATO and the APS. He disagreed that the depressive disorder would have arisen in the absence of Ms Vasiliu’s work with the Commonwealth, especially as the 2002 motor vehicle accident, which was the original stressor, occurred in compensable circumstances.
36. On 11 October 2008 Dr Lim stated that Ms Vasiliu’s psychiatric conditions of depression and post-traumatic stress disorder are related to her employment, commencing with the 2002 motor vehicle accident and the stressors involved with the re-location of her workplace. He added that during her rehabilitation program she encountered further stressors when she felt overwhelmed and unable to cope with the expectations placed upon her by the ATO. He said this contributed to her further anxiety and depression which necessitated high doses of antidepressants that led to the hypomanic episode in 2007.
37. Under cross-examination Dr Lim agreed that Ms Vasiliu had given a history that included a number of stressful events in her life before the 2002 motor vehicle accident. He also agreed that in his clinical notes of December 1998 and January 1999 there is no reference to the 1998 motor vehicle accident or the stress of the re-location of the CSA staff from Cheltenham. Dr Lim agreed that after the 2002 motor vehicle accident Ms Vasiliu returned to work after two weeks off and holidays, but disagreed that this demonstrated that the accident played a minor role in her psychiatric problems at the time, even though in his clinical notes of 11 December 2002 he recorded Not depressed. He agreed that in his clinical notes of January and March 2003 there is no mention of the 2002 motor vehicle accident, although he disagreed that as at 3 March 2003 Ms Vasiliu had no residual effects from the accident. He also disagreed that non-work matters constituted the basis of her ongoing psychiatric issues.
38. Dr White said that employment with the ATO, including Ms Vasiliu’s involvement in the 2002 motor vehicle accident, was previously a contributing factor, but he did not believe that her employment continued to contribute to her condition. He concluded that, given the severity, duration and cyclical nature of her mood disorder, together with her history of depression and her family history of depression, the disorder would have occurred regardless of whether the stressors were work stressors or other stressors.
39. Dr Greenberg stated that the more recent events suggest either spontaneous episodes or alternatively that non-work events had superseded any effects of past precipitating factors. She noted Ms Vasiliu’s strong family history of mood disorder. Although she conceded that Ms Vasiliu may have had symptoms of post-traumatic stress after the 1998 motor vehicle accident, Dr Greenberg said that a family history of mood disorder is significant in the diagnosis of affective bipolar disorder and that genetic factors are significant. Under cross examination Dr Greenberg agreed that Ms Vasiliu did not have a history of hypomania, and that a large dosage of anti-depressant medication might contribute to hypomanic episodes. She concluded that it was no longer appropriate to consider the psychiatric condition to be work-related.
40. Ms L Edwards, Director Payroll Services and Appointments, ATO, told the Tribunal that in March 2003 she was team leader of four officers involved in the management and analysis of appraisal returns completed by ATO personnel in the GST area. She said that Ms Vasiliu joined the team as part of a selection exercise and was found to be suitable for the position which was at her substantive level. Ms Edwards explained that she met Ms Vasiliu three weeks beforehand and again on commencement on 3 March 2003 to explain the duties. She said that Ms Vasiliu left after one day and provided medical certificates for an extended period due to an undisclosed illness. Ms Vasiliu did not return to the position.
41. In a statement dated 28 August 2009 Ms D Phelps, health management consultant at the ATO, said that she was Ms Vasiliu’s case officer between 2004 and 2007. She explained that Ms F Casey, an occupational therapist engaged by the ATO as a rehabilitation provider, drew up a rehabilitation program on 14 November 2006 that involved external work, on the basis that medical reports had suggested that a return to work at the ATO would be inappropriate for Ms Vasiliu. Ms Phelps said that at the meeting on 15 November 2006 neither she nor Ms Casey had required Ms Vasiliu to return to work at the ATO, and that any return to work program would incorporate recommendations by medical practitioners. Ms Phelps emphasised that at the ATO rehabilitation programs aim to return employees to pre-injury working hours (25 hours per week in this case), and that for Ms Vasiliu any employment involving home-based or contract writing was not considered to be appropriate because of its seasonal and uncertain nature. Ms Phelps said that the meeting was arranged to occur before additional medical appointments so that Ms Vasiliu could be involved in all steps of the rehabilitation process.
42. Ms Casey told the Tribunal that at no time was it suggested to Ms Vasiliu that she be asked to return to work at the ATO. Ms Casey said that the rehabilitation program included job-seeking discussions and vocational assessment with an independent careers counsellor, but that she ceased her involvement on 15 November 2006 because Ms Vasiliu refused to sign the rehabilitation program or participate further in its implementation.
43. In Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 Finn J adopted the conclusions of the majority in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 on the question of material contribution required for liability in respect of an ailment, and referred to an evaluative threshold below which a causal connection with an ailment may be disregarded. Finn J held that this requires an evaluation of all relevant contributing factors in deciding whether the employment contributed to the necessary threshold level in relation to the ailment and stated at [16]:

Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.

44. In relation to the stressors outlined by Ms Vasiliu, the Tribunal takes into account that the first episode on 15 December 1998 after a holiday in Thailand occurred more than three months after the 1998 motor vehicle accident. The Tribunal is satisfied that she had commenced working at Dandenong in August 1998 and that the issues arising from the closure of the CSA in Cheltenham and the possible re-location to Box Hill had been dealt with in 1997 and by September or October 1998. An examination of Dr Lim’s clinical notes of Ms Vasiliu’s consultations with him on and after 15 December 1998 reveal a focus on family and personal issues unrelated to work or the motor vehicle accident. On the material provided, the Tribunal is satisfied that there were no significant work-related issues at that time affecting Ms Vasiliu’s bipolar disorder that might have precipitated the episode.
45. In relation to the second episode in 2000 the Tribunal takes into account Ms Vasiliu’s evidence that her mother’s serious illness during that year had a significant effect on her. On the material provided, the Tribunal is satisfied that there were no significant work-related issues at that time affecting Ms Vasiliu’s bipolar disorder that might have precipitated the episode.
46. In relation to the third episode in March 2003 shortly after commencing in a new position with GST Workforce Solutions at Dandenong, the Tribunal notes that in 2002 Ms Vasiliu had been successful in her second hardship application not to be transferred to Box Hill. She appears to have had a reasonable working relationship with officers at Dandenong. The Tribunal accepts Ms Edwards’ evidence that she spent considerable time with Ms Vasiliu explaining the duties of the position, and that Ms Vasiliu had the necessary qualifications and experience within the ATO to carry out the duties of the position. There was no apparent work-related reason that Ms Vasiliu could not perform the duties. The 2002 motor vehicle accident had occurred more than three months previously.
47. There was no significant reference in Dr Lim’s clinical notes to any psychological impact arising from the 2002 motor vehicle accident. He recorded not depressed on 21 January 2003. The clinical notes of the psychiatric hospital to which Ms Vasiliu was admitted in March 2003 refer to a number of personal and family issues but not the 2002 motor vehicle accident. On the material provided, the Tribunal is satisfied that there were no significant work-related issues at that time affecting Ms Vasiliu’s bipolar disorder that might have precipitated the episode.
48. In relation to the fourth episode on 8 March 2007, the Tribunal accepts that Ms Vasiliu was upset about the events leading to the meeting on 15 November 2006 to discuss the return to work program, and she was also unhappy at the prospect of retirement from the APS. She felt that she was not being supported by the ATO. However the Tribunal accepts the evidence from Ms Phelps and Ms Casey that the process of implementing the rehabilitation plan sought to involve Ms Vasiliu and was flexible enough to incorporate recommendations of Dr Lim and other medical practitioners. There was no intention to return her to the ATO.
49. Ms Vasiliu’s employment ceased effectively in November 2006 when she had completed her writing projects (with the approval of the ATO) and had refused to participate in the return to work program. Accordingly, by November 2006 the issue of the writing contracts and the return to work issues had been resolved, although not necessarily in the manner that Ms Vasiliu had preferred. By March 2007 none of these or other work-related issues had been the subject of complaint to Dr Lim, and there appears to have been no significant reference in Dr Lim’s clinical notes to the impact of the 2002 motor vehicle accident. The hypomanic episode occurred away from the workplace several months after the events of November 2006. On the material provided, the Tribunal is satisfied that there were no significant work-related issues at that time affecting Ms Vasiliu’s bipolar disorder that might have precipitated the episode.
50. In view of its conclusions regarding each of the stressful episodes, the Tribunal finds that Ms Vasiliu’s employment at the ATO did not aggravate or contribute in a material way to her bipolar disorder. This finding is consistent with Dr White’s conclusion that given the nature and severity of her mood disorder, together with the history of depression, the disorder would have occurred regardless of whether the stressors were work stressors or other stressors. It is also consistent with Dr Schweitzer’s conclusion about the longstanding factors involved in the diagnosis of bipolar disorder, and Dr Greenberg’s finding that biological and genetic factors contributed to the condition.
51. For these reasons the Tribunal finds that Ms Vasiliu has no entitlement under s 14 of the SRC Act for compensation for the psychiatric condition, so she has no entitlement under s 24 of the SRC Act for compensation for permanent impairment. Therefore there is no need for the Tribunal to consider whether the psychiatric condition was sustained while she was travelling between her residence and her place of work; or the level of whole person impairment arising from any psychiatric condition.

DECISION

52. The Tribunal affirms the decision under review.
    

I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

Signed: Olympia Sarrinikolaou

Associate

Dates of hearing: 23 February 2009, 1, 2, 4 and 5 June 2009, 28 and 31 August 2009

Date of final submissions: 21 September 2009

Date of decision: 22 September 2009

Advocate for the applicant: Self-represented

Counsel for the respondent: Mr J Lenczner

Solicitor for the respondent: Thomson Playford Cutlers