Russell and Comcare [2010] AATA 889 (12 November 2010)

Last Updated: 12 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 889

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5019

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KAREN RUSSELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 12 November 2010

Place Brisbane

Decision

The decision under review is set aside and a decision substituted that the respondent is liable to pay the applicant compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injury major depressive disorder, single episode.

..............Signed..................
Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – whether employment contributed to a significant degree to onset of condition – decision under review set aside and substituted for decision that Comcare is liable to pay compensation for the injury major depressive disorder single episode

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5A(1), 7(4), 14

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

12 November 2010

Deputy President P E Hack SC

INTRODUCTION

1. Ms Karen Russell suffers from a major depressive disorder. She attributes the development of this disorder to her employment in the Child Support Agency. She made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Comcare rejected her claim. It decided, and contends in these proceedings, that her disorder was not contributed to, to a significant degree, by her employment. Comcare points to other matters in Ms Russell’s personal life which it says were more likely the cause of her disorder.
2. Ms Russell seeks a review of Comcare’s decision, made on 31 August 2009[1], that it was not liable, pursuant to s 14 of the SRC Act, to pay compensation to her for the condition of major depressive disorder.
3. It is necessary to make only brief reference to the provisions of the SRC Act. The key provision is s 14. Subject to some irrelevant exceptions, it makes Comcare,

“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.”

Ms Russell was an employee at the relevant times and that aspect needs no further consideration.

4. The term “injury” is defined by s 5A(1) of the SRC Act in this way:

“injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”

Section 5B defines “disease” in these terms:

“(1) In this Act:

disease means:

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3) In this Act:

significant degree means a degree that is substantially more than material.”

5. The term “ailment” is defined in s 4(1) of the SRC Act as meaning,

“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”

6. It is common ground that Ms Russell’s disorder is an ailment and that, subject to satisfaction of the element of causation, it would satisfy paragraph (a) of the definition of “injury” i.e. a disease suffered by an employee.

FACTUAL BACKGROUND

7. Ms Russell was born in 1974. She left school after Year 12 and worked initially in child care and then in a casino. She worked as a laboratory assistant and studied to be a science technician. She commenced her employment with the Child Support Agency in late October 2004 and underwent training for about three months. On completion of the training Ms Russell had the title of customer service officer and began working in Intensive Debt Collection. She remained in the section until February 2007.
8. In late 2006 Ms Russell applied for a position as a Financial Investigator with the “Capacity to Pay” (CTP) team. Her application was successful and she started work in the CTP team in February 2007 following some further training. Ms Russell’s employment as a financial investigator in the CTP team coincided with a push by the government to increase the level of child support paid by parents and thus reduce dependency on welfare. Ms Russell was given the task of investigating persons who reported a low taxable income but an apparently greater capacity to pay child support. Persons with company and trust structures were examples of those targeted by Ms Russell and other financial investigators within the CTP team. The investigations were not instigated because one parent had complained that the other was not paying, or not paying sufficient, child support; the investigation was initiated by the Agency. And it was often the case that the Agency would attempt to increase the level of child support payable by both parents.
9. Sometimes Ms Russell was required to contact parents who had had no contact with the Agency for long periods of time and to inform them that an investigation was being undertaken with a view to increasing the level of child support payable. The investigation undertaken by a financial investigator led frequently to the making of a recommendation that the level of child support be increased. That recommendation was considered by the team leader and, if the team leader was satisfied, was passed on to others within the Child Support Agency for consideration.
10. Ms Russell says that she found the work she had to do as a financial investigator quite daunting. She says that what she found most confronting was the emphasis on increasing the taxable income of parents, from which the level of child support was determined. She said that she,

“began to have doubts as to whether this [new] position sat well morally with me.”

She took annual leave during April 2007 and, she says, decided to see whether she felt differently on her return.

11. On her return from leave she found that she had a new supervisor, Mr Gary McEwan, who had taken over from Mr Darren Robinson. Mr McEwan had come to the Child Support Agency after 20 years of service in the Royal Australian Air Force. He was a Flight Sergeant on his retirement from the Air force. Ms Russell said that she found Mr McEwans somewhat difficult to deal with. I will comment further below on the nature of the relationship. But there was, according to Ms Russell, a further difficulty for her when she returned from holidays. None of her files had been given any attention during her absence with the result that she had a great deal of catching up to do. Mr McEwan however disputes that was the case.
12. Ms Russell says that after her return from leave her concerns about the nature of the work that she was performing continued. She says that she found particularly confronting the “cold calling” of parents to inform them that the Child Support Agency was investigating their financial circumstances. In her evidence in the hearing she said that frequently parents she spoke to in these circumstances would react to her angrily and sometimes abusively.
13. These matters, according to Ms Russell, caused her increasing stress and anxiety. She says that she found that she was barely sleeping and eating and had noticeable weight loss. From February 2007 to July 2007 she says that she lost 10kg. I observe that Ms Russell was of very slight build; the only medical records available show her weight as 51-52kg in the second half of 2007. Additionally, Ms Russell says she was becoming physically ill in the mornings and regularly in tears on her way to and from work and at work.
14. Some, at least, of these difficulties were reflected in contemporaneous documents prepared by Mr McEwan. He was in the habit of having regular meetings with individual staff members and sending an email note confirming the tenor of the meeting. One such email was sent by Mr McEwan to Ms Russell on 5 June 2007 following a meeting earlier that day. He wrote:

“Just to follow up from today’s meeting.

You appear to have good knowledge of your cases and are progressing them appropriately – well done Karen.

You also said that you were ‘pumped’ – this is great as I know that you have been some what unsure as to how you felt about working in the CTP area. I’m very pleased that you are happier and look forward to working with you into the future.

We also discussed the support that you need to continue with your progression – Kirstie will work with you to help with recommendations and analytical skills.

Well done Karen, keep up the good work.”

Three matters emerge from this email – that Ms Russell was “unsure” how she felt working in the CTP area, that, at an earlier time, Ms Russell had been unhappy and that Mr McEwan was aware of these matters. Mr McEwan, understandably, was not now able to give any detail of the discussions on that day beyond those recorded in the note.

15. It is undoubtedly the case that around this time i.e. from early June 2007, Ms Russell’s discontent was increasing. Mr McEwan has a dairy note of a conversation with Ms Russell on 20 June 2007 in which Ms Russell “indicated that she was uncomfortable with the customer contact requirements of the role [of financial investigator].” The note records Ms Russell having told Mr McEwan that she had lost “some 4 kilograms in weight since taking up her current role and was really not happy.” Mr McEwan suggested that she ought seek assistance from the Employee Assistance Plan (EAP), a free service of counselling available to Commonwealth employees. The upshot of discussions on that day was that Ms Russell was keen to find a position to avoid customer contact.
16. There were further discussions between Ms Russell and Mr McEwan the following day during which Mr McEwan noted having asked Ms Russell,

“specifically, what is it that you find the issue with customer contact.”

There is no direct recorded answer to that question although Mr McEwan noted that Ms Russell “indicated that it seems to have accumulated over a period of time.”

17. There was a further meeting on 11 July 2007. Mr McEwan’s note of that meeting reads:

“Karen explained that she is considering going to her doctor on Monday for stress leave.”

18. Mr McEwan subsequently met with his supervisor, Mr Ian Traill, and a decision was made that Ms Russell not undertake any customer contact work until further notice. Ms Russell was told of this decision on 12 July 2007 and asked to attend a meeting with Mr Traill and Mr McEwan on the following Monday, 16 July 2007.
19. Mr McEwan’s note of that meeting provides the most reliable guide to the matters discussed. It is as well to set it out in full:

“Meeting – Karen, Ian Traill, myself

• Ian explained that the withdrawal from customer contact is an informal but immediate response from us re current situation in regards to feelings about customer contact
• Ian provided Karen with a copy of the current Injury management Guidelines and explained that this is the framework that the CSA uses to manage injury in the workplace.
• Ian advised that a Rehabilitation Case Manager (RCM) has been appointed (Vicki Sharratt)
• Ian discussed ‘Early Intervention’ funding in the context of further support that we may be able to offer – sometimes EAP doesn’t fit or work out for a variety of reasons – this funding may be an option and would be at Ian’s approval
• Karen advised that she had come to understand on the weekend that her situation re customer contact is in relation to the CTP process – she finds CTP as invasive/intrusive way for CSA to operate and hadn’t experienced these feelings in other customer contact roles – is struggling with the review/investigation element of CTP – Ian raised values alignment as possible issue. Karen indicated that in fact she likes customer contact but it’s more about the CTP process
• Karen did say that she has been happy with the support provided so far
• Karen advised that she had been unsuccessful with her application for TSO role

Where to now:

• Reiterated that the withdrawal from customer contact is an informal approach to rehabilitation – Karen has explained that she thought that by her not doing customer contact she felt that her customers were not receiving the full standard of service and that she has been taking calls from customers. I explained that we were not compelling her to take these calls.
• Advised Karen that we would arrange a meeting for her with the RCM
• Advised that after meeting with RCM we would look to formalise our approach to rehabilitation
• I phoned RCM – Vicki would like to meet with Karen one on one. I have advised Karen that Vicki will contact her re setting up an appointment.”

20. Following this meeting Ms Russell was put on duties that did not involve telephone work. She was moved to a different section and worked, at least initially, implementing decisions that had been made by the Social Security Appeals Tribunal to whom a merits review of objections decisions lies. She was also put in contact with Ms Vicki Sharratt, a Rehabilitation Case Manager employed in the Department of Human Services. She met Ms Sharratt on 16 July 2007. Ms Sharratt made this note of the conversation in an email to Mr Traill:

“I met with Karen on Monday 16 July 2007. I explained my role and the process. Karen advised that she was not happy working in the CTP area and felt very unwell when she had to get up in the morning to attend for work. Karen said the role in CTP was very invasive, intrusive, negative and was concerned about ringing people ‘out of the blue’. She said she was not sleeping well. I queried if she had been to the doctor and she said no. She said she had been to EAP 3 times and felt the last time did her some good.

Karen advised that she had put in an expression of interest for the Transitition Team and was to put one in for the Business Support. Karen advised that she was pleased that you had removed her from customer contact however was concerned about just sitting in the team and not doing the full duties.”

21. During this period of apparent stress Ms Russell was attending her local general practitioner, Dr Paul Evans, on a regular basis. It is one of the curiosities of the case that there is no record in Dr Evans’ clinical notes of any complaint of work stress or such like. There are, however, complaints throughout the period of “chest pain in circumferential fashion”. Ms Russell also complained of pain that led to a referral to Dr Lisa Carroll, a specialist rheumatologist. Dr Carroll reported to Dr Evans on 31 August 2007 about the physical complaints. But that report also referred to a diagnosis of “possible depression”. In the text of the report this was said about depression,

“I did talk about depression today and she was very non-forthcoming in this part of the conversation but I get the feeling she suspects she may be somewhat depressed, as she smiled without replying with my question.

...

I did find it somewhat difficult to get to the bottom of her story. I asked her to summarise and Karen tells me she would like me to take the pain away. She is tender to touch all over. She does wake throughout the night, probably three or four times. She usually sleeps from 11.00 to 6.00 but is usually broken. She tells me pain keeps her awake ...

...

I did suggest that possibly amitriptyline at night may help with her sleep ...”

Dr Carroll continued to report depression as a possible diagnosis in subsequent reports over the next six months or so but no further detail was provided.

22. Dr Evans’ clinical notes thereafter make no reference to the diagnosis of “possible depression” nor to any investigation of that possibility.
23. On 25 July 2007 Ms Russell reported to Ms Sharratt that she was “pretty excited and a little apprehensive” about her move to “objections/ssat”. In the meantime Ms Russell continued with sessions with the EAP. She had had four sessions by early August 2007.
24. Outwardly at least, Ms Russell’s transfer appeared to have been a success. In late September 2007 her supervisor reported that her

”placement in the Objections/SSAT team has been a success from my perspective and Karen feels the same.”

It was recommended that the transfer be formalised. That was done on 1 October 2007.

25. Ms Russell described herself as “more suited” to work in the Objections/SSAT team and she gradually built up her work in Objections which involved regular contact with parents. By the end of 2007 she had a full case load.
26. Her rheumatological problems also increased during the latter part of 2007 such that she was off work for most of January 2008. She returned to work on 29 January 2008.
27. In mid-February 2008 Ms Russell learned that both her father and her best friend had been diagnosed with terminal cancer and that both had a life expectancy of six months. This was, as Ms Russell puts it, “extremely distressing and upsetting news for all”. Ms Russell reduced her hours of employment in February 2008 and commenced working four days per week. Ms Russell says that the pace of work picked up but she was, by most accounts[2], regarded as a valuable employee. She was described by the Objections Service Manager, Ms Amanda Kitchen, as one of the better performing officers, and one who volunteered to assist with additional work on a number of occasions.
28. In a statement subsequently provided in support of her claim for compensation Ms Russell describes the first half of 2008 as one where there was an increasing demand at her work from greater workloads. She says that she found her sleep interrupted because she was “regularly awake thinking about work cases and the worsening conditions of both my Dad and Darren [the best friend].” That statement then goes on to describe “several highly emotive calls where the customers were abusive” between July and September 2008. That is the first mention made by Ms Russell in her statement about abusive calls. In contrast, in her oral evidence, she described verbal abuse from customers as “a daily occurrence”.
29. Events came to a head in late September 2008. On 23 September 2008 Ms Russell found herself “completely overwhelmed” at work and was observed by her supervisor to be visibly distressed. She sought, and was granted, leave for the balance of that week. She attended upon Dr Evans the following day. His notes refer to “stress at home/ father sick”. She saw her supervisor Ms Mandy Reid at the workplace early on the morning of 30 September 2008. She told Ms Reid that the issues she was facing were not work related. It is apparent from Ms Reid’s notes that around this time Ms Russell told her that she could not “do the phones” at the moment.
30. Ms Russell has not worked since 23 September 2008.
31. Ms Russell’s father died in early October 2008 and the best friend died approximately three weeks later. On 6 November 2008, the day after the death of her best friend, Ms Russell attempted to end her life. She was admitted to the Prince Charles Hospital Mental Health Unit and remained an inpatient until 17 November 2008.
32. In early December 2008 the Child Support Agency made arrangements for Ms Russell to be seen by Dr Vladan Ljubisavljevic, a consultant psychiatrist, for the purposes of determining her fitness for continued duty in the Child Support Agency. Ms Russell saw Dr Ljubisavljevic on 5 January 2009.
33. On 13 January 2009 Ms Russell lodged a claim for compensation for the condition “major depression disorder” with onset in May 2007 and September 2008. Her claim form described her symptoms as,

”crying, no motivation or energy shortly after commencing job in CTP team.”

34. The claim was refused on 22 May 2009 and that decision was affirmed on reconsideration on 31 August 2009. These proceedings were commenced on 20 October 2009.

MS RUSSELL’S RELIABILITY

35. Mr Harding, counsel for Comcare, submitted that I ought have doubt about the reliability of much of Ms Russell’s evidence. I accept that there is reason to do so, to some extent, and to consider, as I do, that some, at least, of Ms Russell’s evidence is affected by reconstruction. The complaint of daily abuse from customers is a clear example. In her statement provided to Comcare in February 2008[3] Ms Russell makes no mention of abusive calls during her time as a financial investigator. The only reference is to “several” calls between July 2008 and September 2008 where customers were abusive. No complaint appears to have been made to her supervisors except in relation to one call in July 2008. When, in September 2008, Ms Russell sought information from the Child Support Agency about “escalated calls” i.e. calls that had been referred by her to a supervisor, she sought information for the period from September 2007 to September 2008.
36. But that is not to say that her dealings with customers were not, on occasions, unpleasant. In her role as a financial investigator and later when dealing with objections she had to speak to people who had reason to be unhappy with the Child Support Agency and with Ms Russell as its representative. It would be unrealistic to think that there were not times when Ms Russell was the object of anger, at least, from customers. However I think that Ms Russell has, perhaps understandably, come to exaggerate the extent to which the telephone dealings with customers involved abuse of her.
37. Additionally, I must say that I found quite unconvincing Ms Russell’s explanations for not referring to work stress when seeking prescriptions for sleeping tablets from her general practitioners. It seemed to me, that in that respect, her evidence was fabricated.
38. But despite these reservations I consider that Ms Russell’s evidence is generally reliable. There are examples of obvious exaggeration but the substance of her evidence, particularly her difficulties at work in mid-2007, is confirmed by contemporaneous records. It is the case, as Comcare submits, that no complaint was made by Ms Russell to her general practitioner during the whole of this period. But two matters need to be borne in mind. The first is Ms Russell was complaining of chest pain during that period, a sign that can be a symptom of anxiety. No physical cause of this chest pain was ever found. The other matter I regard as significant is the diagnosis of Dr Carroll in August 2007 of “possible depression”. Dr Carroll’s observations and her comments set out above give strong support to the notion that Ms Russell was, in August 2007, demonstrating the clinical signs and symptoms of depression but that her personality meant that she was embarrassed to speak to others including medical practitioners, about her complaints.
39. I should mention, finally, the conflict in the evidence of Ms Russell and Mr McEwan. They are at odds on a number of matters, generally peripheral. Mr McEwan’s recollections are, by and large, limited to the notes he made at the time. Beyond those notes his evidence is very much in the nature of what he “would have”, or “would not have”, done.
40. It seems fair to say, without intending any criticism of Mr McEwan, that he did not regard Ms Russell as a particularly good employee. I had the sense that Mr McEwan, with a long background in the services, would not cope well with an employee like Ms Russell expressing dissatisfaction with the task that financial investigators were required to perform. I consider it likely that he did tell her to “toughen up” or “harden up” in her attitude to delinquent parents. And I think it likely, despite his denial, that there was an occasion where Ms Russell abusively rejected a suggestion by him that a recommended level of child support ought be increased. I have the distinct impression that it was in Mr Ewan’s nature to downplay the difficulties that Ms Russell was experiencing, not for any malicious reason, but because he was not able to appreciate or understand the extent to which Ms Russell was troubled by her work. Of course, Ms Russell’s personality contributed in no small measure, to that lack of understanding. Dr Kathryn Galvin, the specialist psychiatrist who has been treating Ms Russell for sometime, described her as “a very private, a very reserved, person” who may not have felt comfortable discussing the signs and symptoms of depression with Dr Carroll. That certainly accords with my impressions of Ms Russell as an employee who took pride in her work and did not readily admit of what were, in effect, shortcomings in her performance.
41. Mr McEwan’s approach is exemplified by a passage in his affidavit where, by reference to his note of a conversation with Ms Russell, he said,

“I recall Ms Russell saying that she was ‘pumped’ and I drew the conclusion that she was happy with her work.”

That conclusion is open, at least superficially, however it overlooks Mr McEwan’s acknowledgement that Ms Russell had been unsure as to how she felt working in the CTP team and that if Ms Russell was “happier” then she must, at an earlier time, have been less happy. Were it to matter I do, however, accept that Ms Russell used the expression “pumped” in this conversation.

THE MEDICAL EVIDENCE

42. Ms Russell has been seen by a great number of psychiatrists for treatment or report and I had the benefit of the reports of a number of them and of hearing from Dr Malcolm Foxcroft, Dr Galvin, and Dr Ljubisavljevic. Dr Drew Richardson, the consultant from the Prince Charles Hospital, was on leave and not able to be called.
43. Ms Russell’s first contact with a psychiatrist appears to have been with Dr Brenda Graham, the psychiatry registrar at the New Farm Clinic where Ms Russell attended following her second suicide attempt. Dr Graham’s report is brief. It makes no mention of complaint of work issues but focuses on the terminal illnesses of Ms Russell’s father and her best friend.
44. There is a lengthy assessment of a social worker undertaken on Ms Russell’s admission to the Prince Charles Hospital in November 2008. Mr Harding placed reliance on the reference in that assessment to Ms Russell having reported a history of depression “since she was 8 years old”. That assessment also notes,

“Is employed ... with Child Support Agency where she addresses objections by clients who have had a child support decision made. It is a highly stressful position as she is often abused. Feels supported by her co workers who do not know about her current level of distress.”

There is a further note, seemingly taken by the psychiatric house officer, which reported Ms Russell as stating

“that she has been feeling depressed since childhood ...”

45. The next report in time is that of Dr Ljubisavljevic following Ms Russell’s attendance upon him on 5 January 2009. Dr Ljubisavljevic, it will be recalled, had been asked to determine Ms Russell’s fitness for continued duty. The briefing letter sent to him made mention of the difficulties experienced by Ms Russell in mid 2007. Dr Ljubisavljevic’s report commences with the history provided by Ms Russell. No history is recorded of complaints of work stress or the like however Ms Russell is recorded as having said that “she was not sure when her problems started”. Dr Ljubisavljevic diagnosed Ms Russell as suffering from a major depressive disorder of moderate severity with no psychotic features. He said:

“It appears her depressive condition has developed in the context of her father and her best friend passing away within a short period of time. She has experienced an associated sense of loss. In addition she has been diagnosed with rheumatoid arthritis and was being treated around the time her father and friend had both been diagnosed with cancer.

I could not identify any significant work stressors.”

Dr Ljubisavljevic also said that he suspected that Ms Russell had, in the past suffered from some clinical depression.

46. Dr Richardson sent a short report on 29 January 2009 to Ms Russell’s general practitioner. That report refers to “a 12 month history of a moderately severe major episode”. The diagnosis of rheumatoid disease and the deaths of her father and her best friend were identified as the “context” of the depression.
47. On 22 February 2009 Ms Donna Fedrick, a consulting psychologist who had been treating Ms Russell since December 2008, provided a report to Comcare. That report touched upon Ms Russell’s difficulties in the CTP team in mid-2007 and noted that Ms Russell had reported her symptoms from that time as:

“she had become very teary, slept very poorly, lost a significant amount of weight (10kg) and would become physically ill in the morning.”

48. It is relevant to note that Ms Russell complained of similar symptoms in February 2009 when seen by another psychologist.
49. The next reports are from Dr Richardson dated 26 March 2009, one to Comcare and the other to Dr Morris and to Dr Galvin. Dr Richardson said:

“In terms of the etiological factors leading to Ms Russell’s current depressive episode I would make a number of observations. The first was her initial reporting of work related stressors occurred in July 2007 when she was working for the Capacity to Pay Team. At that stage she felt particularly stressed by the nature of the work and described increasing stress and anxiety levels with insomnia and some other neurovegetative symptoms of depression. I understand she was referred to the rehabilitation case manager at that time and some strategies were put in place. Additionally, she was found an alternate position in the Objections Team and shortly after commenced work in this position. She felt more suited to the work in the Objections Team but still reported low mood, problems with energy and developed some pains in her feet. In late December 2007 she was diagnosed with rheumatoid arthritis by her rheumatologist Dr Lisa Carroll. She was also noted to be depressed at this stage. Please note then that her depressive symptoms appeared to pre-date her bereavements which occurred in 2008.

...

In summary, Ms Russell suffers from major depressive disorder – current major depressive episode with melancholic features but no psychotic features. There has been a partial response to treatment in the form of antidepressant medication and psychotherapy. She has progressed to engage well in the private sector and I would anticipate her prognosis is good given the absence of significant pre-existing mental illness. I would note that her depressive symptoms clearly began in the context of workplace stressors which were contemporaneously documented in appropriate workplace paperwork in mid-2007. As with any depressive episode the etiology is a complex interplay of biological, psychological and social factors. Biologically, her rheumatoid disease with its propensity for multi-system involvement including brain involvement, and potential side effects of the anti-inflammatory and disease modifying medication which Ms Russell takes are significant triggering factors. There is no known family history of mood disorder to predispose her from a biological point of view. Psychologically, workplace stressors in mid-2007 which were exacerbated by a series of hostile phone calls from difficult clients in September 2008 clearly could act as a psychological precipitant to a depressive episode. Her bereavements and losses of her father and best friend throughout 2008 are additional psychological precipitants.”

50. Dr Galvin commenced treating Ms Russell in January 2009. The history provided to her by Ms Russell has consistently been one of complaints of workplace stress in her role as a financial investigator in the CTP team. Dr Galvin’s report of 10 November 2009 reports Ms Russell complaining of,

“being frequently distressed by the demands of this position, where she was often verbally abused by her customers when having to enforce decisions which were incompatible with her ethical belief systems.”

Informed by this history, Dr Galvin expressed the opinion that Ms Russell’s major depression commenced in 2007, precipitated by work stress. She continued,

“She was not formally assessed at that time, but her symptoms of insomnia, anxiety, low mood and tearfulness would have been consistent with an emergent depressive illness. Her symptoms were briefly but not completely alleviated by a change of position to the Objections Team.

...

There is no doubt that the diagnoses of cancer in her father and friend in 2008, and the months of concern and bereavement surrounding these illnesses, have been significant factors exacerbating Miss Russell’s depression.”

51. Dr Galvin observed of Ms Russell’s personality style that it,

“includes marked traits of diligence and wanting to please authority figures by demonstrating a strong work ethic.”

This trait, Dr Galvin considered, was likely to have prevented Ms Russell from formally acknowledging stress in her new position once she had moved to the Objections area. In this report Dr Galvin noted:

“Having witnessed several incidents where Miss Russell’s depression entered a more severe exacerbation in direct response to work-related matters, I believe that work-related factors continue to be highly significant in maintaining the current severity of her depression.”

52. Dr Ljubisavljevic saw Ms Russell again on 15 February 2010 and provided a report of 23 March 2010. He remained of the opinion that Ms Russell was suffering from major depressive disorder. As to its onset he said:

“Retrospectively it is very difficult to establish when the condition first developed.

She was officially diagnosed as suffering from depression for the first time in September 2008. In my first interview (on 5 January 2009) Ms Russell stated that she was not sure when her problems started. In January 2009 she reported that her father and best friend were diagnosed with cancer. She also identified being diagnosed with rheumatoid arthritis as another significant factor. In that initial interview she did not identify any significant work stressors.

In my second interview (on 15 February 2010) Mr Russell reported that her problems started when she applied and got the job as a financial investigator in February 2007. She stated that she did not like the ethics of the work position and the impact of her decisions on people’s finances. She stated that she started to develop symptoms around that time. She stated that she was transferred to the objections team where initially things went well. She stated that she was working in a reduced work capacity for a period of four to five months and by the end of 2007 she reached a full work capacity.

She stated that she had been reporting symptoms of depression to her general practitioner prior to 2007 and that she reported that she was teary and not sleeping and that her GP advised her to relax and go to movies. At the time she also experienced somatic symptoms.

The general practitioner’s report indicates that her depression occurred in early to mid 2008. The only other health professional who saw her throughout that period of time was Dr Carroll, Rheumatologist who initially saw Ms Russell in August 2007. Dr Carroll reported that in August 2007 Ms Russell appeared to be quite depressed. All other health professionals involved in Ms Russell’s care (Dr Slack, Dr Richardson, Dr Galvin and Ms Fedrick) were involved in her case post September 2008. Their reports provide their opinion on retrospective information provided by Ms Russell and would have been more influenced by Ms Russell’s statements rather than being based on objective clinical findings in face to face interviews.

I have given consideration to my two interviews with Ms Russell and information provided by her in both of those interviews as well as the information provided in the reports and notes provided by Australian Government Solicitor.

My opinion is that Ms Russell could have suffered some symptoms of depression in 2007 however I do not have the evidence that the symptoms reached the severity to be diagnosed as psychiatric disorder. Ms Russell reported some symptoms however the veracity of the information is difficult to confirm given that her general practitioner did not confirm that he was of the opinion that she was clinically depressed. The symptoms could have caused some clinical distress however they were not of a severity where they impacted on Ms Russell’s lifestyle as she was able to continue performing in stand-up comedies and being involved in festivals. It appears that the symptoms progressively got worse in the first part of 2008 and had reached clinical significance by July/August 2008.

I would therefore consider that her condition of major depressive disorder developed in mid 2008.”

53. Subsequently, Dr Ljubisavljevic was provided with the clinical notes from Dr Evans. The absence of documentation of significant depressive symptomatology until September 2008 led him to conclude that it was more likely than not that Ms Russell developed depressive symptomatology in August/September 2008.
54. Ms Russell was seen by Dr Foxcroft in May 2010. He provided a report dated 2 June 2010. Dr Foxcroft diagnosed a major depressive disorder with onset in mid 2007. He said of the history given to him:

“She had typical symptoms of a major depressive disorder with poor sleep with loss of appetite, low energy levels, constant ruminations, feeling overwhelmed, inability to cope, loss of enjoyment in all activities and a progressive reduction in her external activities and other hobbies and pursuits. She had lost approximately 10kg in weight and was feeling severely depressed.”

In Dr Foxcroft’s view,

“The onset of her illness predated the onset of her father’s and her friend’s terminal illnesses and she describes appropriate grieving and recovery from these deaths. The depression has continued in spite of[[4]] these incidents rather than because of them. They may have contributed temporary aggravation but are no longer doing so. The major contribution to her depressive episode is the work related events.”

55. Dr Foxcroft said this:

“The nature of her illness is that she has had a continuous single episode of depression, the onset of which has contributed to significantly by her work. Other factors such as family factors have contributed a temporary aggravation to this condition and have now ceased contributing to the condition. The work related factors have continued given that they are the original or commencing factors of the depressive episode and that depressive episode has not in itself gone into remission. The original commencing factors are therefore continuing to contribute to her current depression to a significant degree.”

56. Finally, I have a report of Dr Galvin dated 30 August 2010 which noted that Ms Russell,

“continued to demonstrate depressive ruminations about her adverse experiences in the Child Support Agency ... workplace.”

CONSIDERATION

57. It is accepted by Comcare, by reference to the decision of Drummond J in Comcare v Mooi[5], that, to qualify as a mental injury or disease, Ms Russell’s reactions must be outside the boundaries of normal mental functioning and behaviour. In that case his Honour said:

“But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act 1988 (Cth) to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.”

58. Here Comcare’s submissions stress that, whilst there were some complaints at work, they do not amount to evidence of clinical depression, all the more so when there was no complaint made by Ms Russell to her general practitioner.
59. Comcare submitted that I ought to prefer the opinion of Dr Ljubisavljevic to those of Dr Galvin and Dr Foxcroft. A contrast was said to be evident in the complaints made by Ms Russell to health practitioners before she made a claim for compensation and the complaints made after her claim had been lodged. And I was invited to conclude that Ms Russell was exaggerating her complaints, likely deliberately so.
60. Notwithstanding these matters I am satisfied that Ms Russell’s depressive disorder commenced in mid-2007 and that her employment contributed, to a significant degree, to the onset of the condition.
61. The starting point, to my mind, is Ms Russell’s personality. Reference has already been made to Dr Galvin’s observations that Ms Russell’s personality style was very likely to have prevented her from formally acknowledging that she was experiencing work stress. Dr Galvin, of all the psychiatrists who have seen Ms Russell, has had the greatest exposure to her. She is thus particularly well placed to comment on Ms Russell’s personality style. In her oral evidence she remarked that Ms Russell was “very private” and “very reserved”, and that Ms Russell may not have felt comfortable, and indeed may well have been embarrassed and ashamed, to admit of depression.
62. It is, however, evident that Ms Russell was experiencing difficulties in her work by early June 2007. Prior to 5 June 2007 she had made Mr McEwan aware that she had reservations about working in the CTP team and that she was not happy. By 20 June 2007 she had explicitly told Mr McEwan that she was uncomfortable dealing with customers, that she “was really not happy” and that she had lost weight. Within a short time Ms Russell was contemplating visiting a doctor “for stress leave”.
63. Ms Russell’s evidence was that at this time she was barely sleeping and eating, that she was physically ill in the mornings and was regularly in tears as a consequence of the anxiety she felt in undertaking her work in the CTP section. To some extent the contemporaneous notes by Mr McEwan and Ms Sharratt confirm the accuracy of Ms Russell’s evidence.
64. I accept as accurate Ms Russell’s evidence of her signs and symptoms of this time even though it was not until some time later that she fully articulated a connection between her work and her condition. The contrast that Comcare points to between the histories given before and after Ms Russell’s claim for compensation does exist but in my view it is readily explicable by Ms Russell’s realisation of the severity of her condition and its effect on her working capacity. I reject the notion, inherent in Comcare’s submissions, that from the time of her claim for compensation Ms Russell has exaggerated her symptoms.
65. I accept the evidence of Dr Galvin and Dr Foxcroft about the onset of Ms Russell’s condition. Dr Galvin, in particular, is well-placed to comment on the continuing exacerbation of Ms Russell’s depression in response to work-related triggers. That continued response confirms, as both Dr Galvin and Dr Foxcroft suggest, that Ms Russell has dealt adequately and appropriately with the personal tragedies of 2008 yet her depression continues. Mr Harding was particularly critical of Dr Foxcroft’s use of the word “may” when he referred in his report to the fact that the terminal illnesses and deaths “may have contributed temporary aggravation” however I think that that construction reads too much into Dr Foxcroft’s word. He was not using “may” to admit of any doubt that the events caused aggravation of Ms Russell’s condition but using it in the sense of accepting a premise for the purposes of the main issue.
66. Dr Ljubisavljevic reached a different conclusion however the basis of his differing view is the absence of evidence that the symptoms reached the severity to be diagnosed as a psychiatric disorder. Dr Ljubisavljevic did however accept that Ms Russell’s complaints, if found to exist, did amount to evidence of a depressive disorder commencing in mid-2007.
67. I am then satisfied that Ms Russell presently suffers from an ailment, major depressive disorder single episode, that she first commenced to suffer from that ailment in or around July 2007 and that the ailment was contributed to, to a significant degree, by her employment by the Child Support Agency. It follows that I would set aside the decision of 22 May 2009 and substitute a decision that Comcare is liable to pay Ms Russell compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injury major depressive disorder, single episode.
68. There seems to be no reason why Ms Russell ought not have her costs. If no submissions to the contrary are received within 14 days of the publication of these reasons there will be an order that the respondent pay the applicant’s costs of and incidental to the proceedings to be taxed if not agreed.
    

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ............Signed........................................................

Associate

Dates of Hearing 20, 21 & 22 October 2010

Date of Decision 12 November 2010

Counsel for the Applicant Mr R F King-Scott

Solicitors for the Applicant Slater Gordon

Counsel for the Respondent Mr A Harding

Solicitors for the Respondent Australian Government Solicitor

---

[1] That decision affirmed on reconsideration a decision made on 22 May 2009.

[2] Perhaps with the exception of Mr McEwan.

[3] Exhibit 1, pp 123-126.

[4] In his oral evidence Dr Foxcroft said that “in spite of” ought read “despite”.

[5] (1996) 69 FCR 439.