Reeves and Comcare [2009] AATA 92; (2009) 107 ALD 703 (12 February 2009)

Last Updated: 4 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/4223

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KATHLEEN REEVES

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

M J Carstairs, Senior Member

Date 12 February 2009

Place Brisbane

Decision

The Tribunal sets aside the decision under review and substitutes the decision that Comcare is liable to pay compensation to the applicant for major depressive episode. Comcare should pay Ms Reeves’ costs of the application, if any.

..........................[sgd]....................

SENIOR MEMBER

CATCHWORDS

COMPENSATION – injury – major depressive disorder – whether excluded for failure to obtain benefit – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 16 and 19.

Kay and Comcare [2006] AATA 50

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

Wiegand V Comcare [2002] FCA 1464

Comcare v Sahu-Khan [2007] FCA 15

REASONS FOR DECISION

12 February 2009

M J Carstairs, Senior Member

1. Kathleen Reeves has been refused compensation for a stress-related anxiety and depression condition which she claims she suffered when she was working at Centrelink in 2006.
2. The respondent’s denial of Ms Reeves’ compensation claim was not based on grounds that Ms Reeves’ work was not stressful, nor on grounds that she has not suffered a psychiatric disorder, identified as a major depressive episode. Rather, the respondent’s refusal of her claim rests on the operation of one particular exclusionary provision, to be found in the Safety Rehabilitation and Compensation Act 1988 (the Act). That provision has the effect that compensation will not be payable where an injury can be attributed to the person’s failure to obtain a workplace benefit.
3. It is a minimum requirement, for the exclusionary provision to come into play and deny a person compensation in otherwise compensable circumstances, that the failure to obtain the benefit resulted in psychiatric disturbance.
4. I have come to the conclusion that that minimum requirement is not met on the facts before me. Accordingly I have decided that Ms Reeves was entitled to compensation.

MEDICAL REPORTS

5. I would firstly observe that the medical evidence was consistent in its conclusions that Ms Reeves suffered a depressive episode that was markedly evident towards the end of October 2006. Ms Reeves’ condition at that time was difficult for her to manage and her medical practitioners recommended that she take sick leave. She did so, from 27 October to 24 November 2006.
6. A brief summary of the key aspects of the medical evidence will suffice to demonstrate the factors at play in Ms Reeves’ condition. The source of the evidence was the reports of two psychiatrists, Dr C Gray and Dr D Alcorn, and from Ms Reeves’ general practitioner, Dr C Kondos. In addition, there was a brief written report prepared by the psychologist, Ms Celia Roots, who Ms Reeves consulted under an Employee Support Program run by Centrelink.
7. The doctors agreed that issues in the workplace had indeed taken a toll on Ms Reeves during 2006. Dr Kondos stated that Ms Reeves had several consultations with him. He included summaries from his clinical notes in his report, including consultations in September and October 2006. Ms Reeves had told Dr Kondos that she was not coping at work. In particular, she was having difficulties dealing with Centrelink’s more abusive clients, and was generally struggling with the workload[1].
8. Dr Kondos recalled having treated Ms Reeves for depression from 2004. His view was that what happened to Ms Reeves in 2006 was an aggravation of her pre-existing depressive condition. In his opinion, there were several causes for Ms Reeves’ depression, but her employment nevertheless was one cause. Dr Kondos agreed with the workplace psychologist Ms Roots’ recommendation, that Mr Reeves needed time off work to overcome her stress and depression[2], and he provided the medical certificates for that leave.
9. In February 2007, Comcare asked Dr Gray to prepare a report. That report records the history that Dr Gray took from Ms Reeves; a quite detailed account of her feeling stressed by her workload. Ms Reeves also told Dr Gray that she found difficult the cases involving Centrelink clients with psychiatric problems. Their responses could be unpredictable and hard to manage. She said that at times she felt overwhelmed; she thought that there were insufficient people to complete work targets[3]. Ms Reeves made particular mention of one such instance when it became clear that staff who were taking their annual leave in November were not going to be replaced. Ms Reeves said she was suffering with insomnia, would feel nauseous when thinking about work, and had felt depressed for most of the previous 18 months.
10. However when Ms Reeves saw Dr Gray in February 2007, it was some three months after the depressive episode had manifested itself. She frankly admitted to Dr Gray that she had better coping strategies. She described herself at the time of the report as feeling rather better and “50% of her old self”.
11. Ms Reeves, in my assessment of her, is not a person who exaggerates her symptoms, or overstates her case. I thought that in expressing herself this way to Dr Gray, she was acknowledging an acceptance that for a while her responses to workplace issues may have been dysfunctional. That, I would have thought, would have been a consequence of her mental state. Nevertheless it seemed apparent throughout that Ms Reeves was making a genuine attempt to manage her symptoms and get back to work quickly. It seemed to me that she has made a very successful return to work. I thought this commendable outcome was a combination of her efforts, and efforts on the part of Centrelink.
12. By the time Dr Gray saw her, Ms Reeves had been undertaking a graduated return-to-work program for some time, and was almost back on full-time hours and duties. The unit in which she worked was again fully staffed. She was accessing, as I have already observed, psychological assistance under the Centrelink Employee Assistance Program. Ms Reeves explained to Dr Gray that she had previously sought assistance from the Employee Support Program in 2000, when she was suffering a grief reaction after her mother’s death. She had also accessed the Program in 2004 to help her deal with conflict with a co-worker.
13. Armed with this additional information about previous problems she had experienced where she sought psychological assistance, Dr Gray still thought that the workplace circumstances accounted for what happened to her in 2006[4]:

There is evidence that Ms Reeves was predisposed to the development of depressive and anxious symptomatology in her past history but it is not fully clear to me that she has had episodes of major depressive disorder in the past. On this occasion, however, it is quite likely that Ms Reeves condition was precipitated again by the stressors in the workplace.

14. Dr Gray diagnosed her as having a major depressive episode according to the Diagnostic and Statistical Manual (DSM IV), although he said also that there were significant issues akin to a stress response and of adjustment to the stressors. He thought that on the history she had given, there were issues within the workplace in October 2006 which precipitated deterioration in Ms Reeves’ mental state.
15. Dr Gray plainly stated in his report that the October incident was not an aggravation, acceleration, or recurrence of a pre-existing underlying condition. In that regard, his opinion can be seen to differ from that expressed by her general practitioner. He did regard her as a person prone to anxious worry, and observed that she might have dwelt too much on the problems in the workplace, thereby exacerbating her symptoms. But his final view was that Ms Reeves’ employment contributed to her condition “in a significant yet transient manner”[5].
16. In May 2008 the respondent called upon a different psychiatrist, Dr Alcorn, to prepare another report. Dr Alcorn had access to the existing medical reports, and a copy of Comcare’s written reasons for refusing Mr Reeves’s compensation claim.
17. When Dr Alcorn interviewed Ms Reeves in mid 2008, he was seeing her some 18 months after she had claimed. She was back working full-time and seemingly happily settled at a different Centrelink office.
18. Dr Alcorn described Ms Reeves as presenting with “a treated major depressive disorder.” He noted she had some continuing anxiety symptoms, but he said that these were not sufficient to warrant a separate diagnosis of generalised anxiety disorder in addition to her depressive condition. Dr Alcorn ventured that an alternative diagnosis might be “adjustment disorder with depressed mood and anxiety”. However, he did not press that view. Whatever diagnostic label might attach, Ms Reeves, in Dr Alcorn’s opinion, was well on the road to recovery. He said her medical treatment had been appropriate and her condition had improved.
19. However, Dr Alcorn observed that Ms Reeves still had some way to go. He thought her depression would remit with the passage of time, but she would require anti-depressant medication for the next 1 – 2 years, and might be left with some residual impairment.
20. Importantly, Dr Alcorn agreed with the other reporting doctors that Ms Reeves’ condition was caused or aggravated by her employment. Workplace events, amongst which he included being unable to access additional staff resources, training, and flex time, precipitated Ms Reeves’ depressive episode.
21. I would observe here, firstly, that this body of medical evidence clearly demonstrates that Ms Reeves suffered an injury, being a disease that was materially contributed to by her employment. In cases such this, which involve problems of a psychiatric nature in the workplace, it is important to keep in mind what Von Doussa J said in Wiegand v Comcare [2002] FCA 1464. He stated that if the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment then the requirements of the definition of “disease” in the Act will be fulfilled.
22. I appreciate that Ms Reeves’ own view of the workplace needs to be balanced against information provided by others. I had the benefit of the report prepared by the team leader at Ipswich Centrelink office; answering Ms Reeves many allegations about the workplace[6]. The team leader acknowledged the hectic aspects of working in a Centrelink office, but she thought that there were better explanations for the stress that Ms Reeves was suffering. These reasons lay outside the workplace. Ms Reeves, I have already observed, has never sought to hide her earlier depressive episodes. She has acknowledged that there were outside pressures, other than work, that bore down upon her. In that regard Dr Gray’s opinion, from a medical perspective, presents a balanced appreciation of the other contributory factors. But his opinion confirms, nevertheless, that there was a clear link between Mr Reeves’ employment and the depressive episode she suffered in 2006.
23. Taking into account cases, such as Comcare v Sahu-Khan [2007] FCA 15, the medical evidence here supports the necessary evaluative threshold being met. Therefore, it can be said that the work environment did make a material contribution to the development of disease. I regard as completely right the conclusions of the two Comcare decision makers[7] who appreciated that the medical evidence demonstrated that the workplace issues made a material contribution in Ms Reeves’ case.

IS THIS AN INJURY THAT THE ACT EXCLUDES FROM COMPENSATION?

24. Turning then to whether Ms Reeves’ lost entitlement to compensation through the operation of the exclusionary provision in s 4 of the Act, the question is whether her injury can be said to have been suffered “as a result” of failure to obtain a benefit in connection with employment. There were three matters identified as salient here:
    • requests she made for flex leave;
    • failure to obtain “additional staff resources,” and
    • what was described as “insufficient training”.
25. Before looking at these matters, I would firstly note that the words of the section do require, for the exclusionary provision to come into play that the evidence must indicate that failure to obtain a benefit makes some contribution to disease, or to the aggravation of disease. If authority were needed, apart from the plain words expressed in the section itself, it can be found in the Full Federal Court decision of Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at para 21:

The so-called proviso in the definition does not exclude causes. It provides that if a disease of injury which would otherwise fall within the definition ("any such") is one which answers a description (relevantly here: "suffered as a result of ... the failure to obtain a promotion"), the disease or injury is not an "injury" as defined.

26. The Court made these remarks in the context of a case where failure to obtain a benefit indisputably made a contribution to the disease.
27. The medical and other evidence in Ms Reeves’ case is not like that. In that respect, it is important to appreciate Ms Reeves’ evidence, as supported by her general practitioner’s clinical notes in 2006. She said that she was suffering the symptoms of stress in the workplace for some time before the events culminating in October 2006, when she went on sick leave[8]. As I interpret the evidence, the disease process was in place well before the three matters that are cited now as failures to obtain benefits came into play. In particular, it seems that the flex and staffing issues occurred after Ms Reeves was exhibiting the symptoms of depression.
28. In that regard, I accept Ms Reeves’ account of how the circumstances unfolded. I have already observed that I found her to be a person who gave an accurate and unembellished account of herself at the hearing. It seemed to me that she has always presented her case honestly. Her claim form (29 November 2006[9]) provides a useful starting point. There she referred to work load, lack of training and poor office communication. But she also described her condition as being the result of a combination of events, taking place over a period of year or more, which simply built up to the point that she was unable to cope. That view is supported by Dr Kondos’ clinical notes. They reveal a consultation on 1 March 2006 where she attended suffering stress at work. In September of that year, Ms Reeves and Dr Kondos discussed the desirability of accessing Centrelink’s Employee Assistance Program. The Comcare rehabilitation provider reported back to Centrelink[10] that Ms Reeves felt out of her depth, due to the amount of work and she felt inadequately trained to cope with the demands of new programs.
29. Ms Reeves also provided in support of her compensation claim, a typed, densely detailed, seven page letter expanding in depth upon on the question “What actually injured you, or made you ill?”[11]
30. This letter mentioned flex issues, as well as training, and staffing issues, as Ms Reeves saw them. However it is not helpful, in my view, to give undue weight to this letter. It was written at a time when Ms Reeves was unquestionably depressed, and ought not to be relied upon unduly to single out matters that might be described as her failing to obtain benefits. From a common sense point of view, the document needs to be seen as the product of her thinking at a very symptomatic stage of her depressive disorder. We know from the opinions of medical professionals who have reported on her case that she was anxious and overwhelmed at this time. I very much doubt that Ms Reeves, when feeling more on top of things – when she got to the point that she later described to Dr Gray as having better “coping strategies” – would pen such a florid and detailed account of every small thing that was bothering and upsetting her.
31. At the end of her letter she acknowledges that she realised that she was not coping, and was at times over-reacting.[12] That remark puts her letter into context.

There have been a number of times at work where I have burst into tears and felt foolish for crying, I know intellectually that I should not be feeling foolish for crying because things are overwhelming me. I contacted the Human Resources team at Area Office and requested that I be referred through the Employee Assistance Program to a psychologist for assistance to develop a strategy to try and cope with how I was feeling and reacting to the situation.

32. There will be cases where it will be self evident from the claimant’s account that particular incidents, involving “failure to obtain a benefit”, have played a part. In other words they will have resulted in the development of the injury, as the Act requires. I do not see that here.
33. But there is another and more fundamental problem. I doubt that the three matters, properly understood, amount to her failing to obtain a benefit. In that regard I turn to the evidence. I accept Ms Reeves’ evidence with respect to the flex leave requests. The first one was resolved as a compromise sorted out between Ms Reeves and her team leader[13]. It could not be said that Ms Reeves failed to obtain the benefit of the flex leave. There was another occasion when Ms Reeves simply took another kind of leave. So it could not be said that she failed to obtain a benefit in that instance either.
34. As to the matter referred to as obtaining additional staff, I doubt that this should be described as a “benefit” in the context of the exclusionary provision for two reasons. Firstly, I would adopt the words of Member Kenny in Kay and Comcare [2006] AATA 50 that a matter such as “adequate” staffing is “a means of carrying out work associated with employment” and not a benefit of employment, beyond the work itself. I appreciate that the concept of a benefit bears a wide interpretation, but it is not that wide.
35. Secondly, I was satisfied that if the matter of staffing played a role, it did so only after the disease process was in place. Ms Reeves acknowledged that learning that two staff would be on leave for 4 weeks without replacement, made her distressed. She described it as a triggering incident[14]. But, as I interpret the medical evidence, this was at the end point of a chain of workplace matters that caused Ms Reeves’ depressive episode. I do not see it as resulting in the major depressive episode, when events prior to it adequately account for the development of her depressive condition.
36. As to the question of training needs, there was no real evidence that the training provided was insufficient. There was no meaningful evidence that any perceived, or real, lack of training opportunities had any role in the development of Ms Reeves’ major depressive episode.
    
37. Dr Gray’s report did not address the question of the exclusionary provisions. Dr Alcorn, on the other hand, was expressly asked to make a comment in that regard, albeit some 18 months after Ms Reeves initiated her claim. He offered as his opinion that access to additional staff resources, additional training, and flex time precipitated Ms Reeves’ major depressive disorder[15]. Mr Clark, counsel for Comcare, submitted that I ought to accept this, being expert evidence.
38. My problem with this evidence is that Dr Alcorn provides only a bald conclusion unsupported by any reasoning. Dr Alcorn, as I see it, was not in a good position to assess the relative contributions of workplace matters in the overall disease process, having not seen Ms Reeves close to the time when she suffered her depressive episode.
39. Dr Alcorn added, as a proviso to his opinion, that such matters as he was now being asked to comment on were properly “the subject of fact-finding by an administrative or judicial decision-maker to determine”[16]. Dr Alcorn is quite right in that observation. I doubt that the operation of the statutory provision falls easily within areas of medical expertise.
40. I was satisfied that there was little to suggest that Ms Reeves’ condition of depression was contributed to by matters cited as being instances of failures to obtain benefits.
41. For these reasons I was satisfied that the exclusionary provisions did not apply to disentitle Ms Reeves to compensation. Accordingly, I set aside the decision under review. Comcare is liable to pay compensation under s 14 of the Act for the injury. Comcare will need to assess Ms Reeves’ entitlements, if any, under s 16 and s 19 of the Act.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed: ....................................[sgd]..........................................

Emily Clarke, Associate

Date of Hearing 10 December 2008

Date of Decision 12 February 2009

The Applicant was self-represented

Counsel for the Respondent Mr Charles Clark

Solicitor for the Respondent Dibbs Abbott Stillman Lawyers

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[1] Folio 61; T11.
[2] Folio 60; T11.
[3] Folio 67;T12.
[4] Folio 70; T12.
[5] Folio 72; T12.
[6] Folio 109; T15.
[7] Folio 143; T25. Folio 159;T33.
[8] See also report of Mr N Laconi, 13 November 2006 (Folio 50; T8).
[9] Folio 77; T14.
[10] Folio 51; T8.
[11] Folio 86 - 92; T14.
[12] Folio 92; T14.
[13] Folio 111; T15.
[14] Folio 126; T20.
[15] Exhibit R1.
[16] Exhibit R1at 3.