PARTIES: BEVERLY BURRELL

v

NT OF AUSTRALIA

TITLE OF COURT: Work Health Court

JURISDICTION: Work Health Act

FILE NO(s): 20429889

DELIVERED ON: 6 April 2006

DELIVERED AT: Darwin

HEARING DATE(s): 13, 14, 15, 16 & 17 February 2006

DECISION OF: Mr D. Loadman

CATCHWORDS:

Workers appeal – termination of benefits by delivery of form 5 notice in terms of Section 69 of the Work Health Act – onus of proving worker no longer incapacitated – effect of work related injury causing vulnerability to recurrence of post traumatic stress disorder, anxiety and depression or borderline personality disorder by non work related stressors – alternatively an injury being vulnerability to such illnesses.

REPRESENTATION:

Counsel:
Worker: Ian Morris
Employer: Andrew Davis

Solicitors:
Worker: Halfpennys
Employer: Hunt & Hunt

Judgment category classification: B
Judgment ID number: [2006] NTMC 026
Number of paragraphs: 53

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20429889

BETWEEN:

BEVERLY BURRELL
Worker

AND:

NT OF AUSTRALIA
Employer

REASONS FOR DECISION

(Delivered 6 April 2006)

Mr David LOADMAN SM:

Pleadings

1. The worker’s statement of claim specifies the following particulars;

i. all material times the Worker was employed by the Employer as a Prison Officer.
In the particulars of defence filed on behalf of the employer that allegation is admitted.

ii. At all material times the worker was a PAYE taxpayer.
This particular is also admitted in the defence.

iii. In or about early 1997 the worker sustained an injury during the course of her employment with her employer. The injury was stress, anxiety and major depression.
In paragraph three of the defence the employer admits those particulars, but contends that if the worker continues to suffer from stress, anxiety and major depression, which is denied, such stress, anxiety and major depression is no longer the result of the injury which arose out of or in the course of her employment with the employer.

iv. The Worker made a claim for compensation in accordance with the provisions with the Northern Territory Work Health Act. The employer accepted liability for her claim.
In paragraph four of the Employer’s defence those allegations are admitted.

v. The Notice of Decision dated 11 November 2004 was invalid

PARTICULARS

a) The Worker was at the time of service of the Notice of Decision and remains totally/or partially incapacitated for employment.

b) The Worker’s injury arose during the course of the Worker’s employment and her employment continues to be a contributing factor.
These allegations are denied in paragraph six of the employer’s defence and it is pleaded further that if the Worker was incapacitated for employment at the time of service of the Notice of Decision, such incapacity is no longer the result of any injury which arose out of or in the course of the Worker’s employment of the employer.

2. The employer has filed a counterclaim. It is sufficient to say that the thrust of the allegations in paragraphs one to five of the particulars of claim to the counterclaim culminate with an assertion that any total or partial incapacity ceased or determined prior to the 22 September 2004. It is then pleaded as follows:
The Worker ceased to be incapacitated for employment as a result of her work place injury at some time prior to 22 September 2004.
In the reply and defence to the counterclaim the Worker denies those allegations.
The remainder of the reply filed in defence to the counterclaim joins issue and finally recites entitlement of the employer to have the declarations it seeks made by the Court.

3. The upshot of a critical analysis of the pleadings is set out in paragraph 13 of the submissions filed on behalf of the Employer namely:
“The issue that is for determination by the Court in these proceedings, is simply related to the question as to whether the Worker’s current incapacity, continues to be related to any work injury.”

The Law

4. Section 53 of the Work Health Act reads as follows:

53. “Compensation in respect of injuries
Subject to this Part, where a worker suffers an injury within or outside the Territory and that injury results in or materially contributes to his or her –

(a) death
(b) impairment; or
(c) incapacity

There is payable by his or her employer to the worker or the worker’s dependents, in accordance with this Part, such compensation as is prescribed.”

5. As recited in submissions on behalf of the Worker:-
“In the decision of White v Pink Batts Insulation P/L [2000] NTSC 27, Thomas J. said, in respect of the meaning of material contribution:
“[83] I apply the principle expressed by Lord Reid in Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 621:
“….What is a material contribution must be a question of degree. A contribution which comes within the exception de minimus non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.”

See also Commonwealth of Australia v McLean 919970 41 NSWLR 389.”

6. The critical submission of the Worker at pages 16 and 17 of the submissions of the Worker filed with the Court (which in this Court’s perception is somewhat tortured) is restated by the Court in the following terms.
The Worker submits that the vulnerability that she suffered as a result of the injury sustained in the course of her employment (in the prison system) continues to contribute materially to her incapacity such that she is incapacitated for resuming any employment. It is the very establishment of that vulnerability which engenders a susceptibility to recurring injury due to new stressors entirely unrelated to work or by recollection of the trauma of the work in the prison system which continue to operate upon her and result in the intermittent manifestation of anxiety and depression and/or borderline personality disorder and/or post traumatic stress disorder. That without such a vulnerability she would be capable of handling the stressors of normal life.

7. There is then a further submission seeking to differentiate the hopefully correct restatement of the Worker’s submission above, namely it is the stated vulnerability itself which is said to constitute the injury. This distinction is sought to be made in the second paragraph on page 17 of the submissions.

8. There is then reference to the decision in Asioty v Canberra Abattoirs [1989] 167 CLR 533 (“Asioty”). In that case an abattoir worker had underlying dermatitis. Although ceasing work eradicated or diminished the manifestation of the symptom the compensable injury was stated by Toohey J. as he then was to be:
“the proper conclusion is that the condition of the Appellant’s hands with the now enhanced susceptibility (to) the dermatitis has intensified the disease from which the (Appellant) suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances falls within the language of the Ordinance.”
This susceptibility is said to be analogous with the Worker’s vulnerability to the onset of anxiety and depression or borderline personality disorder or post traumatic stress disorder, such vulnerability having been caused by work related factors constituting consequently an injury of a compensable nature under the Work Health Act.

9. The Court finds as is submitted on behalf of the Employer that it cannot in this decision make any monetary award. The reason will be set out elsewhere in this decision.

10. In Asioty the worker aggravated a chronic non-incapacitating pre-existing dermatitis in his employment as a slaughterman. As a result of the aggravation, the worker then suffered a severe dermatitis, which would flare up whenever he returned and resumed his normal duties at the Abattoir. It is submitted that in that case, the High Court held that this was not just a case of manifestation of a pre-existing or underlying condition of work (which on the abatement, provided the worker did not actually suffer further flare ups at work, would not be compensable), but that that the worker’s enhanced susceptibility to dermatitis constituted an aggravation of the disease. In that case, there was a determination, in effect, that the aggravation of the dermatitis could be regarded as more or less permanent, even though the flare up would abate. This proposition is at variance with the opinion of Professor Whiteford in this matter that any work related aggravation and stressors had ceased and that any condition or disability from which the Worker presently suffers, can be attributable to her pre-existing condition or subsequent non-work related stressors.

11. Under the Work Health Act injury is defined in Section 3 of the Act as follows:-

“Injury, in relation to a worker, means a physical or mental injury arising before or after the commencement of the relevant provision of this Act out of or in the course of his or her employment and includes-

a) a disease; and

b) the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease.”

12. The employer was dux litis in the proceeding and the Court quotes with approval from the submissions filed on behalf of the Worker namely:

“In Henry Walker Contracting Pty Ltd v Edwards [2001] NTSC 16 [“Henry Walker”] His Honour Justice Angel said:

“I have already had adverted to the fact that section 69 (3) requires a medical certificate certifying that the worker has ceased to be incapacitated for work. The certificate in the present case was qualified by reference to particular injuries. Thus it did not support the Form 5 Notice. It is the Notice not the medical certificate that needs to be justified factually. As Martin C.J. (Bailey J., concurring said in Ju Ju Nominees Pty Ltd v Carmichael [1999] 9 NTLR 1 at 8:

“If the employer fails to establish the grounds stated in the notice, the effect of allowing the worker’s appeal would be that the employer would be required by force of s 69 to continue to make weekly payments of compensation until lawfully admitted to cease or reduce those payments, either by the giving of a fresh notice or by making a substantive application under s 104, Disability Services v Regan (supra) at 4.”.
Thus, in the case at hand, the obligation is on the employer to prove that, in essence, the worker is no longer totally incapacitated by reason of the injury in 1997 and that the stress suffered by her in her employment has now ceased to be a contributing factor to her incapacity.”

13. Therefore in relation to the issue of alleged lack of jurisdiction to make any monetary award, this Court finds as indeed it must, that the above statement of the law means that if this Court concludes that the Form 5 Notice has not been justified by the Employer succeeding and proving the Worker is no longer totally incapacitated by reason of her work injury then without more from this Court the Employer would be required as his Honour has said by force of Section 69 of the Work Health Act to continue to make weekly payments as set out by his Honour in the decision above. There is no need for this Court to make a monetary award.

14. It is expressly conceded by the employer that:

1. The worker suffered a psychiatric injury in the course of her employment with employer.

2. The worker has remained, since the time of that injury, and in the foreseeable future, totally incapacitated for all forms of employment.

The Facts

15. There is criticism of an alleged lack of consistency in some of the recited history to one or more of those psychiatrists whose evidence will subsequently be referred to in this decision. It is convenient to start with the history which also paints the picture, to a large extent, of the Worker in this proceeding from the report of Professor Harvey A. Whiteford (exhibit E1) in the proceedings.
“Beverly Burrell is a fifty five-year old woman living with her defacto husband and fourteen year old son at Clear Island Waters on the Gold Coast. As you are aware Ms Burrell was employed as a Correctional Officer in the Northern Territory Correctional Services from approximately 1982 until January 1997. Ms Burrell was very distressed during the interview and it was not possible to gain a comprehensive history. Specifically she had difficulty recalling dates and with the chronological sequencing of events in her history.
Ms Burell was particularly vague about the treatment she had received for her symptoms…Ms Burrell said she moved to Queensland with her family five years ago. Since settling on the Gold Coast she has been treated by a psychiatrist, Dr Jonathan Lichter. Dr Lichter in his report of 23 July 2002 expresses an opinion that Ms Burrell has a chronic major depressive disorder with prominent anxiety symptoms and some evidence of residual post traumatic stress disorder. Dr Lichter also documents non-work related factors which are present in her marriage and other factors which have occurred in the past which have contributed to her psychiatric condition. Ms Burrell told me she currently sees Dr Lichter irregularly. She is vague about the frequency of her visits but admitted she would not see him for “months at a time”. Ms Burrell has been prescribed a wide range of anti-depressant and anti-anxiety medication. She told me she has “taken every table you can have”. She is currently being prescribed (Zoloft) from Dr Lichter but does not appear to take this regularly. She is also prescribed the anti-anxiety medication Diazepam (Valium). Her current general practitioner is Dr Don Buckley at Robina.
I questioned Ms Burrell regarding her current psychiatric symptoms. She told me she has a depressed mood with significant lability (tearfulness). She told me she is “in bed much of the day”. She said “I don’t see anyone and don’t go anywhere”. She reports her thinking as confused and her attention and concentration and memory as impaired. Her self-esteem and self-confidence are said to be low. She reports some obsessive-compulsive behaviour both in cleaning and compulsive buying. She reports being socially isolated.
I questioned Ms Burrell regarding current psychosocial stressors. Her relationship with her partner, Alec, is particularly of concern. It appears her partner is not supportive and she describes her relationship with him as “horrible”. She describes her partner as being “mentally abusive”. She said “we don’t speak one word” to each other.
There are other non-work stressors. Ms Burrell’s son, Beau, aged fourteen, has Asperger’s syndrome. Her four-year-old grandson was involved in a serious motor vehicle accident in June 2000. he sustained multiple injuries and has required ongoing surgery, the last of which was approximately ten weeks prior to her consultation with me . There are also difficulties in her relationship with her daughter in law. Ms Burrell said she “hates [her daughter in law] so much”. Ms Burrell also has current physical health problems. She told me she has had heavy vaginal bleeding constantly for the past ten weeks and this is being investigated by Dr Buckley.
On specific questions Ms Burrell does not believe there is any prospect she can return to remunerated employment.

Personal History

Ms Burrell was born in Herberton in North Queensland. Her birth and early development history were normal as far as she is aware. She was a healthy child but describes her childhood as “desperately unhappy”. She said her father was a violent, alcoholic man and his relationship with his wife and children was “horrendous”. She described one incident where her mother ran from the house with the children whilst her father shot at them with a firearm from the window of the house. Ms Burrell also reports being the victim of sexual abuse by an uncle from “as early as I can remember” to the age of seventeen.
Ms Burrell attended primary and secondary school in Ravenshoe until Year 9. She left school at the age of fifteen and did office work at a sawmill in Ravenshoe for six months before commencing her nursing training at the Atherton Hospital. She married an entertainer at the age of eighteen and travelled with him to Vietnam. She returned from Vietnam to continue her nursing training in Atherton but the marriage apparently ended as he did not come back to Australia. Ms Burrell said she fell pregnant in another relationship prior to her final nursing exams. She was twenty-two at the time. Because of her embarrassment about the pregnancy she left Atherton with her partner and moved to Darwin. She lived in Darwin until her relocation to the Gold Coast.
Ms Burrell said she has been in seven long-term relationships in her life. She has been legally married twice. She says she “hates men so much”. She reports all relationships as having been abusive. Specifically the abuse has been physical but also sexual and psychological. She has been with her current partner for the past sixteen years. Ms Burrell has one child Beau, from this relationship. Beau is aged fourteen. She also has a son, aged thirty-three, who is a Police Officer from a previous relationship.
As noted earlier in the report she commenced work with the Northern Territory Corrective Services in 1982 and worked there until 1997.

Past Medical and Psychiatric History

Ms Burrell said she does not go to the doctors unless necessary. She reports having had two pregnancy terminations and also being treated for a burst ovum and septicaemia. She was vague about her history of psychiatric treatment although it appears she was at least treated as early as 1995 by Dr McLaren. She denied having had a psychological or psychiatric treatment in her earlier life.

Drugs and Alcohol History

Ms Burrell smokes fifty cigarettes per day and does not drink alcohol. At the time I examined her she was taking the anti-anxiety medication, Diacepam (Valium), up to 20mg per day. She is also being prescribed the anti-depressant medication, Sertraline (Zoloft), which is said to be prescribed twice a day but I gained the impression that her compliance with this was not good. No history of illicit drug use is reported.

Family History

Ms Burrell’s father died in 1983 from the complications of chronic alcoholism. Her mother died in 1990 from the complications of a narcotic overdose. Apparently her mother was a dependent on, and abused, prescription narcotic drug. Ms Burrell is the third of five children having four sisters.
There is a strong family history of psychiatric disorders, specifically substance abuse, anxiety and depression.

Mental State Examination

Ms Burrell presented as a very agitated, distressed woman. In the early part of the interview her speech was almost incomprehensible because of her distress. Her attention and concentration was markedly impaired. As the interview progressed reasonable rapport was established. Her speech became clearer without any evidence of formal thought disorder. Her mood was depressed with significant liability. Generalised anxiety was evident throughout the interview. Marked psychomotor agitation was apparent. There was no evidence of any clear psychotic phenomena. Cognitive testing was impossible to perform as a result of her distress.”

The Evidence

16. The Worker gave oral evidence which in terms of detail generally compared with the history given to Professor Whiteford although it does contain additional matters. It is not perceived by the Court that they are sufficiently significant to set out in this decision the full content of that evidence. It certainly canvassed all of those matters set out as the history communicated to Professor Whiteford with the exception of evidence relating to the alleged current day to day activities or lack of them by the Worker.

17. The Worker indicated that although there were changes from time to time in her daily routine, a normal day, obviously a week day, would entail as a first exercise taking her son Beau-Daniel to school. She said after such an event she would go back to bed until lunch time and then get up and clean the house. The cleaning described was of an obsessive compulsive nature extending until the time she went to fetch her son from school. Her son, a surfer, would probably be dropped off at the beach while she went to purchase the necessaries for dinner. She would then cook dinner, wash the dishes and go to sleep. After describing the problems and difficulties attending on her son, now diagnosed as suffering from Asperger’s Syndrome, she said that generally five times a day she vacuumed and sometimes could not stop. That she mostly shopped in the afternoon, but not always and that she hated cooking and could not possibly plan the meals for a whole week. She described compulsive purchasing of dressing gowns it seemed on an almost daily basis until there were no more to purchase and similarly with towels, that is bath towels and kitchen towels.

18. In relation to feeding these compulsions they generally entailed a separate trip from the daily shopping trip. The compulsions tended to last for different periods of time, the dressing gown compulsion having lasted a couple of months. The current compulsion is said to be a desire to purchase “sun block” which has been ongoing for some three weeks to a month.

19. The Worker described herself as being a fanatical cleaner becoming more and more obsessive, cleaning even at 4am in the morning and also having difficulty in sleeping.

20. In the event of experiencing nightmares involving recalling the incident of the prisoner who died from loss of blood after slashing himself; recall of seeing that person’s father broken hearted, the recall of derision of the incident by her workmates and laughter and jokes in poor taste in relation to the incident, great emotional distress was caused to her.

21. Although she could not recall the nature of the subject other “dreams” generally woke her and found her sobbing. Following a night of such “dreams” she would simply lie in bed all day with a doona over her head feeling sad, angry and depressed and when so affected she would not answer the phone or answer the door. She generally never received visitors and on really bad days would enter the walk-in robe with a pillow and curl up in a little ball and stay in the cupboard. One Fletcher, who was present in Court, sometimes visited her on the Gold Coast. She didn’t drink apart from some short periods of moderate consumption in the past and had recently been forced to give up cigarettes due to her financial position. She made her life in company with her dogs. She and her husband Alec essentially were separated under the same roof. He is a compulsive gambler as he had always been. She said that at some stage because of the excitement it engendered in her she had become a compulsive gambler, but had since lost interest and did not any longer pursue that activity.

22. She said that she had organised the purchase of a “Ticketek” (the Court’s label) business and that at least part of the negotiations in relation to the acquisition of that business are portrayed on one of the surveillance videos which the Court was obliged to and did sit through. Save for the issue as to who had invited the “TIO spy” (this Court’s label) shown on a surveillance video (to enter her home she) did not seek to suggest that the video footage was anything but accurate.

23. In relation to those aspects of the surveillance tape which reflect her going to church. The Worker described that church as some sort of evangelical “church” held on a Friday night where people talked in tongues and fell about. For her part it involved allegedly some beseeching of God for assistance to alleviate her then gambling addiction.

24. In relation to her son applying to go to Iraq allegedly as a bodyguard to an Australian diplomat, she had visions of him being blindfolded and people standing behind him with guns. She thought her child would be killed and she “raved” about Iraq presumably to Dr Lichter, the incident causing her to be generally hysterical and unable to stop crying and becoming desperately depressed.

25. She also then sought to qualify her denial to Professor Whiteford and others that she “never drove” as an activity with which she had great problems, in that she became confused at roundabouts and would go round and round. She had two accidents, she could only drive the car within a limited distance of home and in doing so each trip would be on the exact same route and the return trip on the exact same route. Further that she was unable to travel on the highway and generally became hysterical if she detoured from a set pattern, basically only having four destinations which did not cause this behavioural consequence.

26. She was cross-examined by Mr Davis. In relation to transferring to the male section of the prison to the female section she asserted she had resisted the pressure to move for some three years but eventually had relented. At this stage the Court interposes simply to record that prior to giving evidence all four of the surveillance tapes had been viewed by the Worker. Exhibit E5 is a document which she conceded bore her signature and which by its terms, and obviously, so was a request by her to be relieved of the limitation on performing duties in the female section roster and relevantly explains the change of heart as:
“…my personal circumstances have altered, and the current situation severely limits my earning potential during a time of need.
I believe that this change of status will be of mutual benefit, and would very much appreciate your favourable consideration of this request.”
The endorsements apparently by the relevant people in authority sanctioned the request and self evidently as extracted by Mr Davis it is antithetical to the proposition of being forced into the male section because of equal opportunity philosophies.

27. There was then an exchange with Mr Davis based upon a somewhat unsatisfactory event namely the editing of a medical report which was the subject of extensive cross-examination which will not be recounted here because it was engendered by the said editing and has, as a consequence, no relevance or validity.
28. Generally answers given in cross-examination were not, or at least not radically, divergent from other evidence and certainly not sufficient in this Court’s findings on that ground alone to suggest that the credibility of the Worker was destroyed or rendered non probative.

29. The Worker sought to qualify the admitted statement referred to in Whitford’s report exhibit E1 in the proceeding where she had described to him that she was a hermit and went no where. She said that what she had meant by “unable to drive” was that it was extremely difficult for her to get to the places she needed to get to and she said “I am unable to drive”. She could not say when the first of the surveillance tapes that showed her driving had been seen by her and whether such an event had occurred prior to the consultation with Professor Whiteford referred to in exhibit E1. She did not conclude after watching them that they revealed any inconsistencies in communications with Professor Whiteford or anyone else. She was not concerned with the content which she found to be “absolute rubbish”.

30. This Court was certainly sceptical of the attempt to emulate humpty dumpty as portrayed in Lewis Carroll’s work “Through the Looking Glass” when he said to Alice “…when I use a word it means exactly what I intend it to mean nothing more or nothing less”. Unable to drive and go no where does not fit with the attempt to explain the contrary in this Court’s view.

31. One of the surveillance tapes shows the Worker attending what was apparently a church. Neither the submission by Mr Davies that this should demonstrate the falsity of her alleged social isolation or the Worker’s contention that 99.9 per cent of her time whilst attending such churches she was in hysterics is accepted. It would involve no detraction from her classification of herself as a hermit.

32. The Worker also accepted that Professor Whiteford had been correct in his description of her on the occasion of his consultation in September 2004. That she exhibited tremors and shaking, an appearance of marked distress in the morning, but conceded the “Dr Jekyll/ Mr Hyde label” contrast exhibited by her attendance at the venue playing poker machines the same day. This she sought to explain away “by the club being the most exciting thing at that time in her life.” She denied exaggerating her symptoms or any aspect of her history to Professor Whiteford.

33. She was then re-examined by Mr Morris and asserted that the contents of exhibit E5 candidly did comprise telling a lie to the department superintendent.

34. All medical practitioners agree that the Worker is not likely to return to any former remunerated employment. The reasons for that unanimous observation are not themselves unanimous between the three psychiatrists concerned.
The Submissions of the Worker

35. Time precluding the usual delivery of oral submissions dictated that written submissions were delivered on behalf of the Worker and the Employer.

36. In summary on behalf of the Worker:-

a. It is contended that the current condition (seemingly either borderline personality disorder or post traumatic stress disorder or anxiety and depression) is either caused by or materially contributed to by the events of her employment in the Northern Territory prison system. In amplification, that she continues to suffer the effects of the stress condition which arose during the course of that employment and that the stress condition which continues to the present day is a material cause of her current incapacity for employment.

b. Although there is a dearth of psychiatric reference material available to the Court, the Court will attempt at first instance to define two psychiatric phenomena which will be repeated or referred to in the remainder of this decision. “Decompensation” in the case of the Worker was described by Professor Whiteford as “she had anxiety and depression symptoms, which became so severe she could not continue at the work”. (transcript page 9) When he gave oral evidence Professor Whiteford defined factitious as “close to malingering”. A psychiatric condition of adopting a “sick role” and emphasising the causes which give the best results personally financially or emotionally.
The submissions propound that the evidence will demonstrate that the service in the prison system caused the development of a psychiatric condition of a deep depressive state (Doctors McLaren and Lichter) or her biological vulnerability to development of a borderline personality disorder de-compensated, that is, came into existence. Further that the vulnerable personality is adversely affected by the stressors of her life to a much greater degree than would be the case of a person not possessed of that vulnerable personality and the consequence is that she is unfit for employment and the work injury continues to affect her on a daily basis. Alternatively the vulnerability itself itself is the compensable injury.

c. The Worker’s Counsel correctly points out that the initial diagnosis of Professor Whiteford was concomitant with that of Doctors’ McLaren and Lichter, but that he changed his diagnosis upon seeing surveillance footage. His amended diagnosis was that the Worker suffers a “Borderline Personality Disorder”. In his 23/09/2004 report he refers to the diagnosed condition as “a personality disorder of a Cluster B type”. At page four of that report he opines that the exacerbation in that personality disorder in April 1997 when in the Prison Service was temporary and has long since resolved.

d. Counsel for the Worker, attempting to graphically demonstrate the fallacy in the conclusion of Professor Whiteford (because she is no longer at work, work stress no longer operated on her condition) put forward as an example as an analogy being struck with a hammer. The Court does not find that to be valid, but the point is that the attack is made on the suggestion that absence from work removed the effect of work stressors which caused some condition of anxiety and depression or the manifestation of a personality disorder. A recited view of Dr Lichter is highlighted as follows “so I think that experience in prison increased her vulnerability”. That in the Court’s perception resulted in decompensation which in turn descended into anxiety and depression and… “in addition if under enough stress she would develop anxiety and depression disorder on top of personality disorder and I think that’s what happened numerous times to Ms Burrell.” Further when life stressors, work and not work related have been removed, anxiety and depression “have gone away” and personality function (presumably disorder) has got a bit better, “but vulnerability has still remained”. (The Court’s emphasis) This descends to a submission that the Court should conclude in respect of the decompensation of the Worker’s condition that the effect of prison service on the Worker was to make her so vulnerable thereafter to external stressors that she became unable to perform the duties of her employment and that condition of vulnerability is still current and was developed as a continuing injury that arose in the course of her employment with the Employer.

e. Further it was said that the evidence of Professor Whiteford given orally was that the Worker suffered “layers of problems” and consequently it is urged that the Court should conclude that the evidence of Professor Whiteford is to the effect that the Worker continues to suffer from a “layer of depression” and that the condition can and is brought about by the recollection by the Worker of the stressors that she experienced in her employment in the prison service or presumably by the exacerbation of her vulnerability to develop depression and anxiety via non work related stressors acting on the vulnerable state itself having been brought about initially and established by an injury occurring in the service of the Correctional Services of the Northern Territory.

f. Having seen the four tapes comprising the surveillance evidence the Court itself is unable to conclude the probative value or lack of it operating on the diagnosis of the medical practitioners. Drs McLaren and Lichter assert the images are not useful from a diagnostic position and Professor Whiteford was less adamant in his oral evidence or even conceding of the proposition that nothing definitive was to be derived in a diagnostic sense in relation to those images.

g. The Court will not dwell on the history and or the evidence generally already summarised earlier in this decision save to assert again that in its finding the inconsistencies in the various histories is of minimal significance. Whilst the assertion that the prison’s Equal Opportunity system compelled the worker to transfer into duties in the male section of the prison is certainly not borne out by the contents of exhibit E5, it does not seem to the Court so significant as to render her testimony valueless or destroy her credibility. From a practical point of view it does not matter in the Court’s perception whether she volunteered to go to the male section or was coerced into it. The fact of the matter is she worked there with the sanction of her superiors and it was that as part of her work apparently more than anything else in relation to the discharge of her duties which caused her problems. It is also correctly pointed out that the report of Dr Barry Kenny or that portion admitted into evidence, which comprised only the history given to him, certainly qualifies the “unable to drive” reports the subject of much attack on behalf of the Employer, the history given to Dr Barry Kenny being more or less coincident with the explanation given when the Worker gave oral evidence.

h. The Court also places insignificant weight on the intermittent cessation of ingestion of prescribed medication for reason that explanations have been tendered for that course of action in relevant instances.

i. Whilst as will become apparent the Employer suggests that the evidence of Dr McLaren is without value that is not a position which this Court adopts. He gave extensive details of consultations examinations and treatment which occurred as a consequence of the Worker being referred to him by one Dr Dugdale which generated his first report 21/05/1997 (W2 in the proceedings.) His evidence was that he had held 66 consultations with the Worker in 1997 and 1998. The Court agrees with Mr Morris that the value of evidence of a diagnosis sustained by such frequency of consultation is by no means to be ignored particularly as it is a diagnosis which was concurred with by Professor Whiteford at the outset of his involvement and is still concurred with by Dr Lichter who subsequently became the treating psychiatrist to the Worker. As pointed out Dr McLaren was not cross-examined on that issue and his evidence in this Court’s finding is irrefutable. In conclusion the Court finds that there was a sound diagnosis by Dr McLaren of a “major depressive disorder with some anxiety symptoms (to which) work factors have contributed significantly towards the development of the present disorder.”

j. Dr Lichter also had extensive consultation with the Worker between 1998 and the present time and in cross-examination as was pointed out he also qualified the “unable to drive” statement to accord with the evidence given by the Worker. It is correctly pointed out by Mr Morris that in his report of 3/01/2002 that both the dramatic prison experience as well as major marriage problems contributed to the development of her illness. “I believe that Beverly’s work experience was the single most important factor serving to trigger her mental decompensation in the mid 1990’s.” The last sentence presumably should have asserted that the childhood experience and her personality had rendered her susceptible to anxiety and depressive illness presumably caused in this case by the work stressors to which she referred. (Exhibit W6) There is reference to the fact that there are conflicting professional opinions as to essentially the blurring of defining Borderline Personality Disorder as compared to Post Traumatic Stress Disorder.

k. It is correctly submitted by Mr Morris that the tenor of Dr Lichter’s evidence was that the Worker’s early life experiences led to the development of a vulnerable personality damaged by traumatic experiences in the prison system which resulted in, not only the manifestation of a Post Traumatic Stress Disorder with residual chronic features, but a permanent deterioration in her personality function “this in turn has lead her to cope less well with other ongoing stressors in her life which have exacerbated symptoms of anxiety and depression. At times in the five years I have seen her she has satisfied criteria of the major depressive disorder and at other times for dysthymic disorder”. The last mentioned diagnosis was never the subject of any exploration during cross-examination or otherwise. He refuted the suggestion that removal from the stressor which had caused the PTSD would eradicate the condition in time and contended that while 80 per cent improved in the first 12 months 20 per cent of a person suffering that mental illness had a chronic condition.

Summary of the Employer’s Submissions

37. Some of the matters the subject of these submissions have already been the subject of comment and or findings by the Court and it is not proposed to proceed seriatim through the submissions where they have already been canvassed in that way. So, the perceived inconsistencies in the various histories provided to various medical practitioners, the transfer from female to male prison duties, the existence of stressors traumatic or otherwise prior to the manifestation of the injury admitted by the Employer as a consequence of service in the prison and those that have post dated that event have all been dealt with in one way or another.

38. Whilst it is true that the contrast between the presentation of the Worker to Professor Whiteford as agitated, exhibiting tremors, a lack of ability to follow conversation, wringing of hands and marked agitation contrasted with the outward behaviour of the Worker at the Robina Tavern is undoubtedly cause for a “raising of the eyebrows”, it is not in itself of such significance as to impugn the value of the Worker’s evidence particularly given the evidence of Doctors Lichter and McLaren that none of the surveillance images have any particular significance to them from a diagnostic perspective and although they were obviously aware or made aware of the contrary evidence of Professor Whiteford.

39. Comments have already been made as to the suggestion that Dr McLaren’s evidence should be discounted and there has been commentary on the evidence of Dr Lichter.

40. The Court briefly descends to suspicion manifested in exhibit E1 (Professor Whiteford’s) report of 30 June 2003 repeated in the report of the 23 September 2004 to significant factitious element and factitious disorder respectively. Factitious element or factitious disorders were refuted by Doctors McLaren and Lichter and there is no further need to dwell upon the matter. As for the submission that the Court should accept in preference to all else the opinions of Professor Whiteford the difficulty in accepting that proposition is the antithetical views of Doctors McLaren and Lichter and the relevance of the obligation resting upon the Employer to prove on a balance of probabilities that the evidence of Professor Whiteford establishes the validity of the Form 5 Notice.

41. Again the Court has traversed such evidence of Dr Lichter as is relevant for the purposes of it making a decision. The issue of malingering addressed at paragraph 51 of the Employer’s submission will not detain the Court. It is simply not pleaded and is at least for that reason a “red herring”. It is also hardly definitive that Dr Lichter conceded that a contrary diagnosis of Professor Whiteford was a valid possibility. Possibilities are endless. It is the probability of the diagnoses of Doctors Lichter and McLaren being correct and the contrary position of the probability of Professor Whiteford being correct and thus the validity of the Form 5 which is the exercise to be embarked upon and decided by this Court.

42. It is trite that the burden of proving on a balance of probability that the termination on the grounds set out in the Form 5 notice rests on the Employer.

43. As is apparent from what has already been said in this decision initially Professor Whiteford concurred with the diagnoses of Doctors McLaren and Lichter. This Court finds that the Employer has not proved on the requisite balance of probabilities that the altered diagnosis of Professor Whiteford which is contrary to the continuing diagnosis of Doctors McLaren and Lichter should on a balance of probabilities establish the correctness of his diagnosis as opposed to theirs.

44. The Court accepts the evidence of Doctors McLaren and Lichter who viewed the surveillance tapes and nothing in them altered their diagnosis or affects their observations from a diagnostic perspective. It follows the Court rejects the contrary position adopted by Professor Whiteford in relation to his altered diagnosis attributed to the contents of the surveillance tapes.

45. The Court does not find that the inconsistencies such as they are between the various aspects of the histories given and/or the oral evidence given by the Worker such to render her side of the story incredible.

46. The Court finds that the work in the prison service manifested the development of the illnesses diagnosed by Doctors McLaren and Lichter and by Professor Whiteford at the outset.

47. Further that as a consequence of the manifestation of either of these illnesses the Worker was thereby rendered vulnerable in a way analogous with the worker in Asioty to the recurrence of her psychiatric problems triggered by non- work related stressors in part although of course triggered also in part by recollections of the original stressors which had brought about the manifestation of the condition when it first arose or alternatively the vulnerability itself.

48. The Employer has not in the Court’s finding discharged the burden of proving and justifying those matters set out in the Form 5 certificate.

49. In paragraph 71 of the Employer’s submission it seems to be suggested that the decision of the High Court in “Asioty” is contrary to the law which is an interesting proposition if that indeed is what is being submitted. This Court finds that the vulnerability contended for by or on behalf of the Worker and referred to elsewhere in this decision created by stressors in the prison service continues to the present day. That vulnerability is the very reason for the manifestation of anxiety or depression consequent as a result of a completely non related work stressor such as the injury to the grandchild of the Worker. Such manifestation is in this Court’s finding a compensable injury which in the Court’s findings obviously results necessarily in the conclusion that the Employer must fail. It is not proved on a balance of probabilities that the criteria to cease payment as set out in the Form 5 are justified and valid.

50. That then brings this Court necessarily to the same position as found by his Honour Justice Angel in “Henry Walker”. This is contrary to the position announced by the Court that is if it reached the situation where it decided in favour of the Worker on the Form 5 issue or did not uphold the propositions of law or fact advanced by the Employer it would adjourn to some future date the issue of quantifying any award consequent upon such a finding.

51. In light of “Henry Walker” that is not a course of action which then which should be followed by this Court. As a consequence of this Court’s finding by force of Section 69 of the Work Health Act the Employer is obliged to continue to make weekly payments of compensation until lawfully permitted to cease or reduce those payments either by the giving of a fresh notice or by making a substantive application under the Work Health Act.

52. In the circumstances the formal orders made by the Court are;

a) The Worker succeeds on the Claim.

b) The Employer’s counterclaim is dismissed.

53. The Court will hear the Parties on the question of costs.

Dated: 6 April 2006

DAVID LOADMAN
STIPENDIARY MAGISTRATE