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Williams v Mercer Superannuation (Australia) Limited[2017] QDC 289

Williams v Mercer Superannuation (Australia) Limited[2017] QDC 289

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Mercer Superannuation (Australia) Limited & Ors [2017] QDC 289

PARTIES:

PAMELA JEAN WILLIAMS

(plaintiff)

v

MERCER SUPERANNUATION (AUSTRALIA) LIMITED ABN: 79004717533

(first defendant)

and

THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED ABN: 72004020437

(second defendant)

FILE NO/S:

2923/14

PROCEEDING:

Civil trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

1 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 & 19 February, 13 May 2016

JUDGE:

Andrews SC DCJ

ORDER:

The plaintiff’s claim is dismissed.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – PROCEEDINGS BETWEEN TRUSTEES AND BENEFICIARIES OR THIRD PARTIES – where the plaintiff was a member of a superannuation scheme administered by the defendant – where the plaintiff claimed that she had suffered total and permanent disablement – where the plaintiff alleged the trustee breached duties to consider relevant information and make relevant inquiries – whether the insurer owed those duties

CONTRACT – INSURANCE CONTRACT – BREACH – where contract of insurance – where plaintiff claimed that she had suffered total and permanent disablement – where insurer denied claim – whether insurer acted reasonably in considering the claim – whether the plaintiffs ability to perform intermittent or casual or part-time work was relevant – where insurer’s reasons omitted reference to relevant documents – whether insurer failed to consider those documents – whether the insurer’s reasons were adequate – whether the insurer should have considered a further medical of which it had notice – whether the denial of the claim was unreasonable on the material

CONTRACT – INSURANCE CONTRACT – BREACH – ROLE OF THE COURT – if the insurer breached its duty to act reasonably in considering the plaintiff’s claim – whether the court should remit the matter to the insurer or determine whether the plaintiff is totally and permanently disabled

CONTRACT – INSURANCE CONTRACT – where the plaintiff performed a return-to-work program for her husband as a requirement of WorkCover – whether the plaintiff satisfied the six month waiting period in the insurance contract

CONTRACT – INSURANCE CONTRACT – where the plaintiff’s position was made redundant and for that reason her employment was terminated – whether the plaintiff satisfied the six month waiting period in the insurance contract – whether the plaintiff’s absence was through injury or illness

Chammas v Harwood Pty Ltd (1993) 7 ANZ Ins Cas 61-175

Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2015] QSC 245

Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57

Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd (2011) 282 ALR 167

McArthur v Mercantile Mutual Life Insurance Company Limited (2002) 2 Qd R 197

TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68

Ziogos v FSS Trustee Corporation [2015] NSWSC 1385

COUNSEL:

M. Horvath for the plaintiff

G. Handran for the defendants

SOLICITORS:

Turner Freeman Lawyers for the plaintiff.

McInnes Wilson Lawyers for the defendants.

TABLE OF CONTENTS

Background Facts4

Issues5

The claim6

Findings requested by the defendants7

Two inquiries with two rules for admissibility of evidence8

The onus of proof9

The chronological facts10

The Trust Deed and the Insurance Policy40

The Insurer’s Obligations as contained in the policy documents41

Issue 1: whether the plaintiff’s ability to return to part-time work or casual or other work of an intermittent nature would disentitle her to the TPD benefit42

The correct question for the insurer44

Issue 2: whether the plaintiff fails to satisfy the policy’s six month waiting period condition because she worked for her husband45

Issue 3: whether the plaintiff failed to satisfy the policy’s six month waiting period condition because her position became redundant46

Issue 4: whether the insurer breached a duty to act reasonably in considering the plaintiff’s claim48

Duty of the insurer49

The Trustee’s obligations in the trust deeds57

Issue 6: whether the plaintiff’s claim was given proper consideration by the trustee59

Issue 7: is the plaintiff TPD?60

Conclusion63

Background Facts

  1. [1]
    The plaintiff’s ability to work for remuneration is impaired. She claimed a payout from her superannuation trustee, payable upon total and permanent disablement. The trustee has an insurance policy for her benefit in the event that she becomes totally and permanently disabled. The insurer was not satisfied that the plaintiff is totally and permanently disabled and on that basis declined to pay. The trustee received the insurer’s decision and then declined to pay. The plaintiff seeks declarations as a means to the end of an order for the payout or its equivalent as damages.
  1. [2]
    The plaintiff’s employment with a merchant bank involved her doing administrative work from home in Port Douglas, by telephone and computer. It was convenient as she was accessible at home to her three primary school children. But by late 2009 the plaintiff’s work hours increased to 15-16 each day with little prospect of satisfactory a reduction. The plaintiff found her workload intolerable. Her situation was aggravated by the attitudes of her superior and another employee. The plaintiff regarded them as unsympathetic, if not duplicitous. The plaintiff’s health deteriorated in late 2009 and it caused her to stop work. Her health problems then may have included fibromyalgia. She declined an offer of a transfer to Singapore, or Hong Kong. She stopped work for her employer in October 2009. Her position in Australia was made redundant in early 2010. She received a redundancy payment.
  1. [3]
    The plaintiff was insured against a total and temporary disablement (TTD). Her health problems were such that in 2010 her insurer accepted her claim for temporary disablement. She recovered amounts from her insurer for TTD.
  1. [4]
    The plaintiff accepted her GP’s advice to try a graduated return to work by working at home for her husband’s business, on extremely reduced hours, initially to be 2 hours a day, 2 days a week. In 2010 she tried that.
  1. [5]
    The plaintiff was also insured against total and permanent disablement (TPD). By late 2010, working only a few hours a week in her husband’s business the plaintiff contemplated claiming for the benefits due for TPD. In March 2011 she claimed from her superannuation fund’s trustee the benefit payable to her for TPD. The trustee, which is the first defendant, referred the claim to the insurer which is the second defendant.
  1. [6]
    The symptoms of which she complained in March 2011 and since would have significantly disabled the plaintiff in performing administrative work. The symptoms included headaches, neck and body aches, impaired concentration, fatiguing easily, amnesia with increased workload, lack of motivation. The plaintiff explained then and at trial that she had a practical inability to work more than 2 hours a day. While she expected she could work a full day and for several full days she explained that she believed she would be too unreliable to retain employment because her debilitating symptoms would strike at unpredictable times and disable her from working at all for a day or days. The plaintiff’s GP echoed all this in her opinions.
  1. [7]
    The severity of the plaintiff’s symptoms could not be objectively measured. She obtained medical reports about whether she was TPD. The accuracy of the plaintiff’s descriptions of her symptoms and of their frequency was not disputed by examining medical practitioners. Their diagnoses differed. So too did their opinions about her prospects of a return to administrative work.
  1. [8]
    While awaiting a decision on her claim, the plaintiff commenced studying for a law degree in 2012. She was receiving credits and distinctions while the claim was under consideration. Her academic achievement was communicated to the insurer. It was an elephant in the room for those considering the contrasting medical opinions about whether she could return to administrative work.
  1. [9]
    The insurer rejected her claim in December 2013. It is possible that the insurer did not consider some arguably relevant medical reports. The trustee then considered the claim. It is possible that it too did not consider some arguably relevant medical reports. The trustee rejected her claim in March 2014.
  1. [10]
    At the start of 2015 the plaintiff completed her law degree in an accelerated 3 year period graduating with Honours IIA from the James Cook University.

Issues

  1. [11]
    Counsel resolved between themselves many of the issues in the pleadings. The contentious issues emerged in addresses. They are assembled below.
  1. [12]
    Issue 1 is whether the plaintiff’s ability to return to part-time work or casual or other work of an intermittent nature would disentitle her to the policy’s TPD benefit. (It would)
  1. [13]
    Issue 2 is whether the plaintiff failed to satisfy the policy’s six month waiting period condition because she worked for her husband. Was that work under a return-to-work program she performed as a requirement of WorkCover work for a “participating employer” under the terms of the policy? (It was not.)
  1. [14]
    A related Issue 3 is whether the plaintiff failed to satisfy the policy’s six month waiting period condition that her continuous absence from employment with her employer be “through injury or illness” because her position became redundant. (The plaintiff failed to satisfy the policy’s condition.)
  1. [15]
    Issue 4 is whether the insurer breached a duty to act reasonably in considering the plaintiff’s claim by failing to:
  1. consider Dr Chalk’s report of 26 February 2013 stating that study is not the same as work and that the plaintiff may have difficulty in obtaining or sustaining full time work;
  1. consider Dr Stringer’s report of 14 July 2013 that the plaintiff could not return to full time work;
  1. consider submissions from the plaintiff’s solicitors dated 31 May 2013;
  1. consider the plaintiff’s precis of evidence about her symptoms and studies;
  1. obtain “the report of Dr Cai a rheumatologist who had provided a report stating that the plaintiff had fibromyalgia”;
  1. provide reasons for preferring a report of Dr Vecchio to a report of Dr Zurauskas;
  1. express in its reasons that an ability to perform part-time remunerative work would not affect the plaintiff’s entitlement to a TPD benefit;
  1. consider the proposition that the plaintiff’s fluctuating symptoms made her unemployable even if she intermittently had capacity to work, and failing to make that finding.
  1. [16]
    Issue 5: whether the Court should remit the matter to the insurer or determine whether the plaintiff is totally and permanently disabled is an issue in name only. If the insurer breached a duty in considering the plaintiff’s claim, there is a hypothetical issue as to who should determine whether the plaintiff is totally and permanently disabled, the insurer or this Court? The defendants conceded[1]that the state of the authorities at the date of addresses was to the effect that the Court should determine whether the plaintiff fits the description of TPD if the insurer made an error. However the defendants submit the authorities are incorrect on this issue. The defendants’ submission that this Court should not decide whether the plaintiff is TPD is made to preserve the defendants’ liberty on appeal to argue that this court should not. The question of whether the Court will decide the insurer’s question if the insurer has breached the insurance contract was recently determined by Bond J in Edington v Board of Trustees of the State Public Sector Superannuation Scheme,[2]where his Honour followed the Court of Appeal’s decision in McArthur v Mercantile Mutual Life Insurance Company Limited.[3]The Court of Appeal in New South Wales has taken a similar approach in TAL Life v Shuetrim.[4]Those decisions on this point have not been reversed to date. I accept that if the insurer breached its duty, it would be appropriate for this Court to consider the question which it was the insurer’s duty to consider.
  1. [17]
    Issue 6 is whether the plaintiff’s claim was given proper consideration by the trustee.
  1. [18]
    On the hypothesis that either this Court or a Court on appeal determines that the insurer or the trustee breached its duty when considering the plaintiff’s claim, the plaintiff submitted that this Court should determine whether the plaintiff meets the description of TPD. Both counsel referred to this Court’s determination of the factual inquiry as to whether the plaintiff meets the policy description of TPD as a second inquiry. For the purpose of the second inquiry, the parties were at liberty to present to the Court fresh and different evidence from that which was considered by the insurer and the trustee.
  1. [19]
    Issue 7 is whether the plaintiff has satisfied this Court that she meets the policy description of TPD and is entitled to the benefit payable for being TPD. (She has not.)
  1. [20]
    Issue 8 is whether, in addition to the benefit payable on account of being TPD, the plaintiff is entitled also payment by the trustee to the balance of her account with the trustee. (It is unnecessary to answer.)
  1. [21]
    Issue 9 is the date when the plaintiff should have received payment if there had been no breach by the insurer and trustee. It is relevant to the date from which to award interest. It involves considering the date when it was reasonable for each of the insurer and the trustee to have completed their assessments of the plaintiff’s claim for TPD. It is relevant only if the plaintiff succeeds. (It is unnecessary to answer.)

The claim

  1. [22]
    The plaintiff claims the following relief:
  1. A declaration that the insurer is liable to pay to the plaintiff or to the trustee in respect of the plaintiff as a member of the Deutsche Staff Superannuation Plan and pursuant to Group Life policy number GL21378 ("the policy") the benefit for total and permanent disablement being $436,800.00 to which she is entitled as a result of the plaintiff suffering total and permanent disablement following a work related injury on and from 19 October 2009. 
  1. An order that the insurer pay to the plaintiff or to the first defendant on behalf of the plaintiff the amount of the total and permanent disablement benefit being $436,800.00. 
  1. A declaration that the trustee is liable to pay to the plaintiff in respect to the Plaintiff as a member of the Deutsche Staff Superannuation Plan the benefit for total and permanent disablement being the insurance benefit of $436,800.00 and the balance of the plaintiff's Member Account Balance account held by the trustee from time to time to which she is entitled pursuant to a deed of trust which established the Deutsche Staff Superannuation Plan ("the deed") and the policy to which she is entitled as a result of the plaintiff suffering total and permanent disablement following a work related injury on and from 19 October 2009. 
  1. An order that the trustee pay to the plaintiff the amount of the total and permanent disablement insurance benefit being $436,800.00 and the balance of her Member Account Balance held by the trustee. 
  1. An order that the trustee and/or the insurer pay to the plaintiff the sum of $436,800.00 being damages for breach of the deed and/or the policy. 
  1. An order that the trustee and/or insurer pay to the plaintiff interest on the amount of her benefits and/or her damages pursuant to Section 57 of the Insurance Contracts Act 1984 (Cth). 
  1. [23]
    It is common ground that the amount of the TPD benefit, if payable, is $436,800 (being 4 times the plaintiff’s salary).[5]
  1. [24]
    The plaintiff commenced this proceeding by claim filed on 31 July 2014. The identity of the proper second defendant has changed since the hearing. The proceeding names the second defendant as the National Mutual Life Association of Australasia Limited ABN 72004020437 (NMLA).  On 12 December 2016, the Federal Court of Australia in the matter of National Mutual Life Association of Australasia Limited, the application of National Mutual Life Association of Australasia Limited v AMP Life Limited (No 2),[6]ordered that pursuant to s 194 of the Life Insurance Act 1995 (Cth), the life insurance business of the second defendant be transferred to AMP Life Limited (AMPL).  One consequence of the order was that the rights, benefits and liabilities of owners of policies with NMLA and of all persons claiming through or under them will be the same in all respects as they would have been if the policies had been issued or entered into by AMPL instead of NMLA.  On 22 June 2017, it was ordered in this proceeding that AMPL be substituted in place of the second defendant. 

Findings requested by the defendants

  1. [25]
    In oral address, counsel for the defendants asked the court make five findings. He made the following five submissions from which the findings are to be discerned:
  1. “The question on whether the plaintiff suffered total and permanent disablement depends on the evidence disclosing that she had a ‘real chance’ rather than a fanciful one, even if that chance was less than 50 per cent of returning to any relevant work or occupation… Relevant work is … shorthand for work for which she was reasonably qualified to perform by reason of education, training or experience ...  And that’s work of an administrative or clerical nature extending perhaps to banking.” (I make a substantially similar finding below.)
  1. “The second finding is that any relevant work or occupation is not limited to full-time work … and encompasses part-time work and casual or other work of an intermittent nature.” (I make a substantially similar finding below.)
  1. “The third finding is that the work or occupation must be recognised.  It can’t be a manufactured special light duties role, but not need be a particular job with a particular employer, whether geographically situated or otherwise.”(I do not regard this as a necessary finding.)
  1. “Evidence before the defendants did not yield only one outcome that the plaintiff was unlikely to ever engage in or work for reward in any relevant work or occupation.  If the finding is that no proper claim exists or is proved against the second defendant trustee, nor the first defendant insurer, the next finding is that the court should not, if any error is identified, move to re-determine the TPD claim against either defendant.” (I reject this finding below.)
  1. “If the Court was to re-determine either or both decisions, that the totality of the evidence does not show, as it must, that, on balance, the plaintiff is …unlikely to ever engage in any relevant work or occupation.” (I make a substantially similar finding below.)

Two inquiries with two rules for admissibility of evidence

  1. [26]
    The evidence for Issues 4 and 6 is not necessarily relevant for Issue 7. The evidence for Issue 7 is not relevant for Issues 4 and 6.
  1. [27]
    In essence, there were two hearings run together and the evidence admissible in one hearing was not necessarily admissible in the other. One ideal may have been to set out in these reasons the findings based upon evidence admissible in one hearing separately from the findings based on evidence admissible in the other. I have not pursued that ideal. The evidence admissible for Issue 4 (whether the insurer breached a duty to act reasonably in considering the plaintiff’s claim) and for Issue 6 (whether her claim was given proper consideration by the trustee) differs from the evidence admissible for Issue 7 (whether the plaintiff can satisfy the court that she meets the policy description of TPD). The parties’ counsel categorised the difference by referring to two inquiries, the first inquiry, into whether the plaintiff’s claim was given proper consideration by the defendants and the second inquiry for the Court to consider and determine whether the plaintiff is TPD.
  1. [28]
    For the second inquiry, the Court was required to maintain awareness of the limits of the relevance of documents including medical reports considered by the insurer and trustee. For the second inquiry the Court heard evidence and admitted into evidence some further reports. That further evidence was not relevant to the first inquiry.
  1. [29]
    In setting out the facts I attempt to do so chronologically, without creating different sets of findings for each inquiry. It follows that I incorporate some findings which emerged in evidence received for the purpose of the second inquiry, and incorporate some expert opinions which were available for consideration by the insurer or the trustee but which are not necessarily admissible opinion evidence for the second inquiry.
  1. [30]
    Each document in exhibit 1:
  1. is relevant to the first inquiry;
  1. was available to the insurer and the trustee for consideration when they made their decisions.
  1. [31]
    While the documents in exhibit 1 were available to be considered by the insurer and the trustee, it is the plaintiff’s case that some were not considered.
  1. [32]
    Before the insurer rejected the plaintiff’s claim for TPD on 4 December 2013 and before the trustee rejected her claim on 3 April 2014 some other documents existed which were arguably relevant to an assessment of the plaintiff’s claim. Some arguably relevant medical reports which existed before 4 December 2013 are not included in exhibit 1 and were not copied for consideration by the insurer or the trustee. I refer to 3 reports of rheumatologist Dr Cai dated 7 and 11 January and 25 March 2010. They became exhibits 14, 15 and 16. There is a medical report of Dr Chalk dated 26 February 2013 which is in exhibit 1. It is in issue whether Dr Chalk’s report of 26 February 2017 was considered by the insurer or the trustee. Exhibit 1 was admitted into evidence as containing documents arguably relevant to the first issue, but the contents of exhibit 1 are not necessarily relevant to an inquiry by the court into whether the plaintiff is TPD. Any fact, allegation or opinion extracted by me from a document in exhibit 1 was admitted into evidence as relevant at least for consideration of the conduct of the insurer and the trustee when each the plaintiff’s claim for TPD.
  1. [33]
    The insurer and the trustee when publishing their decisions specifically referred to documents to which they had regard. There are several documents which the plaintiff submits were relevant to the assessment of her claim which were not referred to in the reasons as documents which were considered. It is possible that they were not considered.

The onus of proof

  1. [34]
    At trial the plaintiff bears the onus at both stages of the inquiry, to prove:[7]
  1. the alleged breaches of duty by the insurer (and trustee); and
  1. that she was TPD at the relevant time.
  1. [35]
    An evidentiary onus may remain on the insurer to produce some material to show that there are specific jobs or occupations for which the plaintiff is likely suited.[8]The plaintiff accepted that there were jobs in Cairns and Port Douglas to which a person with the plaintiff’s physical capacity, education training and experience would be suited but submitted that the plaintiff’s unreliability due to intermittent, debilitating symptoms would render her unemployable for any such employment whether fulltime or part-time.[9]

The chronological facts

  1. [36]
    The plaintiff was born on 9 November 1964, making her 44 years of age at the date of the alleged TPD on 19 October 2009.
  1. [37]
    The plaintiff finished school in Grade 11, which I assume to have been when she turned 16 in November 1982.
  1. [38]
    From about 1983, aged about 16, she then worked as a clerk and in administration for about 10 years and for different employers.  In the plaintiff’s first five years of employment from 1983 to 1987 she worked in the capacity of receptionist and book-keeper.[10]That reception work is inconsistent with the assertion made by the plaintiff’s solicitors to AXA Australia on 9 October 2013[11]that the plaintiff had never worked with customers and had not dealt with the public. Also inconsistent with the solicitors’ assertion was the plaintiff’s short period in 1992 doing bar work in London.
  1. [39]
    In 1991, aged about 27, the plaintiff obtained a Certificate in Personal and Industrial Relations.[12]
  1. [40]
    In 1994, aged about 30, the plaintiff began work in London as a merchant bank’s employee. She started as a temporary secretary, ultimately becoming what she described as a “software specialist”. She explained that she had no IT qualifications, that it was very basic, that she had a training course through her employer on how to install and test floppy disks. Her counsel explained, consistently with material in exhibit 1, that “she would travel with … CD-ROMs to various areas in Europe, for example, and in Africa and even Asia … the bank would do clearance at the end of the day in either Deutsche Marks or American dollars.  So she would … physically (go) … to the premises, inserting a … CD-ROM into the bank customer’s computer, … making sure it communicates with the head office in London so that the clearance could be done at the end of each day… and then … the internet came and the time came for her no longer needing to do that.”[13]Her duties were then to travel, install and test the floppy disks at her employer’s bank customer’s premises and train the customers to use the disks.
  1. [41]
    From about 1998[14]the plaintiff, aged about 34, returned from her London base to Australia, moved to Adelaide and worked as a Senior Administrator for Bankers Trust Australia Limited and then, on 1 July 1999, for Deutsche Australia Limited, overseeing internet banking support in the Asia/Pacific region.
  1. [42]
    With the increasing use of the internet, banks eventually could acquire software by downloading it from the internet. A physical disk was not required. The plaintiff’s travelling job was moribund. She was required to travel occasionally for work until 2007.
  1. [43]
    The plaintiff’s work in Adelaide was an office job on a computer and phone. Her counsel explained consistently with material in exhibit 1, that “she would be the point of contact for … customers in, for example, the Asia area, and they would ring up and if they had an issue she would – … be the first point of contact. If the technical issue was too complicated she would then pass it on to technical support.”[15]
  1. [44]
    The plaintiff’s proposed position with Deutsche Australia Limited and her duties were described[16]on 29 June 1999 by Deutsche Bank AG:

You will initially continue in the position of Software Specialist.  You may be required to perform in any comparable position.

You will at all times be required to comply with directions given by senior management of the Deutsche Bank Group of Companies in Australia.

…

You will work the necessary hours required of your position.  The spread of hours may be varied to suit the requirement of particular functions.  …

Sick leave is granted on the following basis:

  1. (a)
    5 days paid sick leave for the first year of service; and
  1. (b)
    8 days paid sick leave in each subsequent year of service, and your sick leave entitlements will be cumulative up to a maximum of 93 days…
  1. [45]
    On 1 February 2003 the plaintiff, aged 39, became a member of the Deutsche Staff Superannuation Plan,[17](the Plan) which was an approved employer plan of the Mercer Super Trust.[18]
  1. [46]
    From about 2006, the plaintiff, aged about 42, worked for Deutsche Australia Limited from her residence at 9 Bower Close Port Douglas.[19]
  1. [47]
    The plaintiff’s role as Senior Administrator required her to perform administrative and customer service functions, using a computer and phone.[20]She gradually came to work longer hours.
  1. [48]
    On 14 April 2006 a physiotherapist in Cairns did a report[21]having assessed the plaintiff’s homebased workstation.  The physiotherapist’s record is of the plaintiff reporting 8-10 hour days. The report was required by the bank because the plaintiff’s move to Port Douglas had meant a different physical work environment.[22]The physiotherapist noted that the plaintiff reported getting:

tension in the upper trapezius muscles and has suffered with muscular skeletal neck pain and intermittent headaches for a number of years but has no diagnosed pathology or Xray results…  She has attempted to manage these symptoms by riding her bike to the local pool which takes 10 to 15 minutes and swims 2 to 3 times per week for 30 minutes and she finds this stretches out her muscles and she does not experience the muscle tension on the days she exercises, Ms Williams is going to attempt to go swimming the 5 days per week in the early morning as part of her maintenance program and she also does stretches.  In the past Ms Williams found regular massage also helped to reduce muscle tightness and allowed her to stretch and move easier and she is going to organise regular fortnightly massages to maintain her flexibility and reduce joint stiffness…  Ms Williams has been looking into buying a Chi Machine which gently oscillates the spine and can be used daily for 15 to 20 minutes and loosens up tight muscles and has been used by people with tight spinal joints and muscles with good effect… 

  1. [49]
    The physiotherapist noted that in the plaintiff’s work she responded:

to customer and staff enquiries communicating via emails, remedy (CRM tickets) and telephone.  The majority of her work involves computer tasks, researching and following up information and organising follow-up actions by other departments in the banking systems and linking up with staff to do training.  Ms Williams reported that she spends up to 8 to 10 hours per day doing computer and admin tasks 5 days per week.  Ms Williams responds to an average of 140 to 200 emails per day.

  1. [50]
    In about 2006, the plaintiff became subject to a new manager, Rose Chong. In 2006 the plaintiff was hospitalised in Cairns for migraine.
  1. [51]
    The plaintiff believed that her work became significantly more difficult from the time Ms Chong was involved. The plaintiff reported concerns to her manager. The plaintiff believed her issues were not satisfactorily addressed by her employer and believed the hours expected of her remained unreasonable.
  1. [52]
    The plaintiff was critical of Ms Chong’s demands in particular and her employer in general. It is not necessary to determine whether the plaintiff’s criticisms of Ms Chong or her employer were accurately described.[23]I accept that the plaintiff believed that her complaints to her employer, to WorkCover and to medical practitioners about her working conditions with Deutsche Australia Limited were accurate, that her complaints were accurately recorded and that these complaints were in material available to the insurer and the trustee.
  1. [53]
    In 2007 the plaintiff did her last travel for work. It was a trip to Tokyo.
  1. [54]
    The plaintiff explained her work after all travel duty had ceased in 2007. Customers of her employer were banks around Asia-Pacific. The plaintiff would monitor her phone and computer at home and she accurately explained that:

if clients had problems with their internet banking, from things as simple as not being able to log in, maybe forgotten their password, to … transactions … not working, they would either contact me or … their local customer service officer, where they were located – the customer service officer being an employee of Deutsche Bank and then … that customer service officer would … contact me and ask me for assistance to deal with the client.  I would either call the client or assist the customer services officer … I had reporting duties … to … give the statistical … number of calls that came in and how quickly they were processed ... 

  1. [55]
    The plaintiff’s responsibility to liaise with banks in the Asia-Pacific region increased. She was given the added responsibility to liaise with banks in Europe and in North America. The combination of business hours at these banks meant that the plaintiff was on call for much longer periods than when all customers were in similar time zones. She gave evidence that she became exhausted, was getting a lot of headaches and that they would sometimes become migraines.
  1. [56]
    By 2009 the plaintiff was complaining of working up to 15-16 hours per day, with little or no support. She complained to her employer’s human resources personnel about this on numerous occasions but her requests were ignored.[24]Her counsel explained “the issue became the hours she was working while doing this technical support and while doing these phone calls and computer work at home, because she had to deal with New York, Asia and Europe.  So she’d be working from 6am to midnight, had to be available at all those times to take phone calls because one had to take into account the different time zones, being New York, and then she says Asia would come on and then back to New York again at the other end of the day, and that was mainly dealing with the phone calls, as I say, from the customers who were, in fact, other banks.”[25]That was generally consistent with the reports in exhibit 1 of the plaintiff’s complaints about her working conditions in the period before she ceased her employment. 
  1. [57]
    In 2009 the plaintiff, aged about 44, was asked to train another of her employer’s staff. She suspected that her employer intended to replace her with this staff member and that her employment was insecure. She felt shocked. She was assured there was a different purpose, that her trainee would become her backup. She gave evidence that she was becoming exhausted, very stressed, suffering many more symptoms than just the headaches; aches pains and insomnia; that she had six hours between midnight and 6.00am when she was not at risk of receiving calls but found she could not sleep properly; she was getting depressed from lack of sleep; she suffered constant aching neck and shoulders which could result in headache which could become migraine. 
  1. [58]
    In June 2009, the plaintiff wanted to use three months of her long service leave but feared her absence on leave would jeopardise her job security. She was assured it would not, but she remained concerned. Her application for leave was approved but the approval was for leave to start three weeks after the approval was communicated. She was obliged to organise plans for herself and her children within the next three weeks and found that stressful. Such allegations were derived from and contained in exhibit 1.
  1. [59]
    In about July 2009 the plaintiff took a three month holiday in Spain with her three children. Her children were then a daughter aged about nine and twins, a girl and a boy aged about eight. Such allegations were derived from and contained in exhibit 1.
  1. [60]
    The plaintiff was not accompanied on the vacation by her husband. The plaintiff gave evidence that she was hospitalised in Spain for migraine. I infer it was in about September 2009.
  1. [61]
    Upon her return home from Spain on 5 October 2009, the plaintiff returned to work on about 12 October 2009. She reported in October 2009 to her employer’s human resources personnel that she “went on my leave once again feeling exhausted working around the clock”. Such allegations were derived from and contained in exhibit 1. The plaintiff reported that in 2008 she had told her employer’s human resources staff that she was required to work more than standard hours and that she had “feelings of anxiety around my role for the first time” and that she and a Mr Keys in human resources agreed she should not work more than standard hours.[26]
  1. [62]
    Upon her return to work after the trip to Spain the plaintiff believed that the staff member she had trained was given reasonable working conditions but that the plaintiff’s long term issues had not been addressed. She felt bullied. Such allegations were derived from and contained in exhibit 1. The plaintiff explained in evidence that the work situation had not improved; that the person she had trained was given the responsibility for the customers in Asia’s time zone; that the plaintiff was left with responsibility for customers in several time zones; that her situation was possibly worse than when she had gone on leave because she had lost the Asian time zone work and been left with the rest.
  1. [63]
    The plaintiff compiled a typed report[27]to her employer’s human resources department.  Among other things, she observed after her return to work:
  • I had a job, was doing it well, someone new is introduced, I trained that person under the guise of him providing my backup whilst on leave – and it is now quite clear that the new person is given more consideration and more recognition in the role. 
  • Given that this has impacted my Long Service Leave, and that I have come back to a worse situation than that which I left, I feel immense anxiety and distress around my work situation.  I have not brought this on myself, mismanagement at senior level in DB has inflicted this upon me. 
  • Would like to be able to work Australian business hours on a general basis as for several years, and is currently still the case I need to work across time zones.[28] 
  1. [64]
    The plaintiff gave evidence that by 20 October 2009, she was getting pain in her shoulders, neck and back from being at her computer constantly and she could feel that a migraine was about to strike so she went to her general practitioner, Dr Liz Stringer. Dr Stringer provided a Workers’ Compensation Medical Certificate[29]diagnosing the plaintiff as then having:

stress, anxiety, depression, insomnia, no energy, no enthusiasm, lack of concentration. 

Dr Stringer reported that the plaintiff’s stated cause of injury was:

has been expected to work unreasonably long hours despite being promised standard working hours on her return from Long Service Leave. Undermined by co-workers and management. Duties changed whilst away on Long Service Leave so has lost sections of her previous work and has been given onerous areas where she is expected to be available until 11.30pm local time.  All approaches to management to address these issues have failed to produce any satisfactory response, resulting in her feeling even further undermined. 

Dr Stringer certified that the plaintiff was “not able to work at all” from 20 to 23 October 2009.  Dr Stringer noted:

flattened affect, inability to enjoy usual daily activities, anxious about impact on her children, struggling to sleep even with medications to assist this, no energy, appetite disturbance, feelings of betrayal and deep hurt, neck spasms, abdominal, chest and back pain. 

  1. [65]
    The plaintiff described the certificate from Dr Stringer as being “signed off on leave for stress, anxiety and depression”. The plaintiff ceased performing her normal duties at Deutsche Australia Limited on 20 October 2009.[30]She did not return to that work. She was 44. 
  1. [66]
    As at 20 October 2009 the plaintiff's education, training and experience included the following:
  1. (a)
    1980: Year 11 at Taperoo High School in Adelaide;
  2. (b)
    1980-1983: Office clerk/secretary at Elecmet (a fabrication company);
  3. (c)
    1983-1985: Office clerk/secretary at JE Whites (a real estate firm);
  4. (d)
    1986-1990: Temporary secretarial work in Australia;
  5. (e)
    1990-1991: Bookkeeper at Sterling Property (London);
  6. (f)
    1991: Certificate in Personnel and Industrial Relations from Adelaide College of TAFE;
  7. (g)
    1992: Bar work in London (2 nights per week over 2 months);
  8. (h)
    1992: Temporary secretarial work in London for 6 months;
  9. (i)
    Jan 1993-Dec 1993: data entry at Australian Submarine Corporation in Adelaide;
  10. (j)
    1994: temporary secretarial work at Bankers Trust in London;
  11. (k)
    1994-1998: “software specialist” at Banker's Trust;
  12. (l)
    1998-2009: “software specialist” at Deutsche Bank.
  1. [67]
    The description of the plaintiff’s experience as a “software specialist” is borrowed from the allegations pleaded and admitted. It was also the title given to her role by her employer. It is a description which is too vague to inform about the type of work experience the plaintiff had. Better detail appears above, in the description of her actual work experience.
  1. [68]
    On 26 October 2009 the plaintiff ceased performing work for her employer and Dr Stringer certified that the plaintiff was “not able to work at all” from 27 October to 15 November 2009 (19 days), diagnosing: 

Stress, depression, anxiety, insomnia.

  1. [69]
    On 2 November 2009, a WorkCover “Application for Compensation” form (Ex 1 page 27 form) bearing that date described the nature of the plaintiff’s injury and the part of the body injured as “Psychological system in general, Anxiety/depression combined”. The date when the injury was there reported to have occurred was 20 October 2009 at 9:00 AM[31]as a result of “unreasonable expectations and treatment by management”. Her occupation was described as “Intermediate Clerical Workers nec”.[32]Another WorkCover form[33](Ex 1 page 19 form), entitled “Psychological and psychiatric injury” is unsigned and incomplete. It described the type of injury as “Distress/shock/worry”, described the injury details as “Undue pressure/infliction of unreasonable expectations/ bullying”, described the “physical medical conditions or health concerns” as “Back ache, chest pains, constant tiredness, stomach pains”.[34]It advised that the plaintiff first sought treatment or attended a doctor in regard to the injury on 20 October 2009 and that symptoms first started after returning from long service leave on 5 October 2009. The form reported that the three most significant contributors to injury were:[35]
  1. Excessive/unreasonable expectations and working hours
  1. Unreasonable treatment and bullying in the workplace
  1. Job insecurity and lack of reasonable support. 

The same form responded to the question “When did the symptoms start?” with: 

After returning from LSL on 5th October to find that my role had been largely taken over on a permanent basis by my backup support and over the ensuing weeks realising that I was being undermined in all efforts to engage in discussions on the matter, whilst being asked to work excessively long hours under an irregular procedure, and also being advised that I may need to look for possibility of another role within the organisation to remain employed which cannot be guaranteed. 

  1. [70]
    A different WorkCover form being an “Online Claim Form”,[36](the Ex 1 page 30 form) bearing no date but made on 2 November 2009[37]relating to an injury dated “20/10/2009” described the nature of the injury and the part of the body as “stress, anxiety, depression, insomnia, back, chest, stomach pain” and described the occupation as “Administration”.[38]
  1. [71]
    An application for compensation was approved and the plaintiff received worker’s compensation benefits for the period between 20 October 2009 and 15 January 2010.[39]It will have been school holiday time in Queensland in December 2009. A report from Dr Cai[40]reported that the plaintiff had been on holiday in Adelaide for 4 weeks to 7 January 2010. She saw medical practitioners while in South Australia.
  1. [72]
    On 14 December 2009 the plaintiff’s GP, Dr Stringer, wrote to rheumatologist Dr Fin Cai:[41]

Pam has been troubled by extreme fatigue and aches and pains and I suspect she may have fibromyalgia.  The pains have bothered her intermittently for years and are most marked in her trunk and proximal limbs.  The physiotherapist Pam has been seeing identified a high positive proportion of trigger point suggestive of fibromyalgia also… Pam has recently returned from an extended overseas holiday…on her return home…she was devastated to find that her managers in the foreign bank for whom she works (via the internet from home) still expected her to work ridiculously long hours and that there had been moves to undermine her position there.  Pam’s symptoms developed within two weeks of her return to work.  I feel she has been pushing herself with her work for a very long time and the contrast with the wellness and relaxedness of her OS trip was too much for her.  She has been depressed and anxious…

  1. [73]
    On 7 January 2010 a body scan showed “mild” bilateral sacroiliitis.[42]
  1. [74]
    On about 12 January 2010 a general practitioner in Port Adelaide, South Australia, Dr Fan Xu provided a workers’ compensation medical certificate that the plaintiff was “not able to work at all from 12/01/2010 to 26/01/2010”.[43]
  1. [75]
    On 25 January 2010 Dr Louise Bleier at the plaintiff’s general practitioner’s practice certified that the plaintiff was “not able to work at all from 25/01/2010 to 25/02/2010”.
  1. [76]
    On 9 February 2010 Dr Skinner approved a WorkCover back-to-work plan for the plaintiff with a review anticipated for 24 March 2010.
  1. [77]
    On 11 February 2010,[44]as part of the WorkCover back-to-work plan,[45]the plaintiff commenced working part-time in her husband’s business, Home Entercom Services Pty Ltd, (the family business) performing “administration” services in the nature of tax and BAS preparation, graphics work, marketing campaign and website design.[46]She used MYOB and did the data entry for invoices. Under that plan, she was to work 4 hours per day for 2 days in the first week 11 February, 4 hours per day for 3 days in the week commencing 18 February 2010, 4 hours per day for 3 days in the week commencing 25 February 2010 and 4 hours per day for 5 days in week 4 which was to commence on 4 March 2010, 6 hours per day in week 5 to commence on 11 March and 8 hours per day in week 6 to commence on 18 March.
  1. [78]
    On 11 February 2010 Dr Stringer provided a workers’ compensation medical certificate stating:

Pam has suffered with bilateral pelvic girdle pain since 2005.  I first looked into it by referring her to a gynaecologist in Feb 2008 as we thought it may have been due to endometriosis … Pam has recently had more severe lower back pain and proximal limb pain.  She has also extreme fatigue and insomnia … Her depression and anxiety were contributing that at that point the GPs in this practice [sic] felt it was likely that Pam also had Fibromyalgia.[47]

  1. [79]
    On 23 February 2010 Dr Stringer provided a workers’ compensation medical certificate of fitness for suitable duties on a restricted return to work program from 25 February to 24 March 2010 diagnosing “stress, depression, anxiety, insomnia”.[48]
  1. [80]
    On 24 February 2010 the plaintiff was assessed in Brisbane by Dr Chalk, psychiatrist.  Dr Chalk reported[49]that:

Over a period of time, she describes the job as increasingly taking its toll, she was increasingly down and tired and took Long Service Leave… to… assist… however, in the process of all this… she became aware that her role had been moved to Singapore without consultation… and that the person whom she was employed to train as a backup, essentially took her job.  She feels she was mistreated… in the setting in which WorkCover accepted her claim “caused by excessive working hours and conflicting messages re role, security, contract and support”. … She told me the person replacing her, was treating her with a degree of contempt and was actively antagonistic and over a period of time, this lady really describes the development of significant anxiety but perhaps not depressive symptoms.  She was not sleeping well from stress, was anxious, had aches and pains and… in the midst of all of this, has been diagnosed with both ankylosing spondylitis and fibromyalgia by a rheumatologist.  She has had physiotherapy and acupuncture for this and… is putting in a separate claim in relation to this.

Over time and since being off work, she has improved.  She feels less stressed, is less uncomfortable because she is not required to sit for many hours at a time and the job has now been completed by the payment of a redundancy.  She is quite happy with the redundancy but is uncertain about her future…  She feels… betrayed that all this was done in an underhand… manner.  Over time, her aches and pains are getting better… she is sleeping more…

SUMMARY AND ASSESSMENT

This 45 year old lady has previously had an adjustment disorder with depressed and anxious mood.  It does not appear as though she has had a major depressive illness and she would appear to have clearly improved with the passage of time and the removal from the work place and the ultimate resolution of her employment… this lady has a chronic adjustment disorder with depressed mood… her condition would appear to be related to the mechanism of injury that she outlines and there is certainly no suggestion of an aggravation of any pre-existing condition.  This lady is returning to work at the current time in her husband’s business, appears to be well supported and I think this host employment is assisting her.

She… describes a degree of avoidance and it does not appear as though there is enough work in the business to support her going up to full-time hours.

Her ongoing symptoms certainly appear to be related to the difficulties that she had with her previous employer and in my view her condition is essentially now stable… with the formalisation of her redundancy.

Whilst her incapacity has not ceased, I think it has reached a stable level and further treatment is unlikely to assist her.  In my view, she is well supported by her general practitioner and as I understand it, her current program runs until the 24th March.  It would seem to me that this is appropriate…

  1. [81]
    On 26 February 2010, the plaintiff lodged a further application for compensation with WorkCover for an injury described as “Lower back, Soft tissue diseases” alleged to have been sustained over a period of time.[50]That application was rejected on account of the assessor’s not being satisfied that any mild sacro ilitis or fibromyalgia was sustained during work. That finding was confirmed by Q-Comp on 6 October 2010 upon appeal by the plaintiff.
  1. [82]
    On 28 February 2010, the plaintiff’s senior administration position had, on some unspecified date, become redundant and her employment with Deutsche Australia Limited was terminated; Deutsche Bank AG could find no suitable alternative position for her within Deutsche Bank AG.[51]I infer from exhibit 12 that there was no position whatsoever available with the plaintiff’s employer Deutsche Australia Limited but that Deutsche Bank AG offered the plaintiff some alternatives to work for it or its related bodies corporate. The plaintiff gave evidence that she was offered options to relocate physically to Hong Kong or to Singapore, which would have meant relocating her family.[52]The plaintiff did not explain which entity would have been her employer, the job descriptions, how long those positions were available for her to accept or why she rejected those options. I infer that those options were impractical because of her family’s connection with Port Douglas. Significantly, from that day the plaintiff was continuously absent from employment with her former employer, Deutsche Australia Limited because her employment was terminated. Her employment was terminated because her position was made redundant.  That redundancy occurred about four months after the plaintiff’s absence from employment began on 26 October 2009.  By this date of the termination of her employment, the plaintiff had been “continuously absent from her employment through injury or illness” for up to four months and two days.
  1. [83]
    By the letter exhibit 12, Deutsche Bank AG offered and the plaintiff accepted a termination payment of $155,233 gross, in full and final satisfaction of any claim (excluding WorkCover) she may have against that bank or Deutsche Australia Limited.[53]
  1. [84]
    The plaintiff did not allege that her employer made her position redundant or terminated her employment because of her illness or injury.
  1. [85]
    On 15 March 2010, the plaintiff was complaining of low energy, lost sleep, aches and pains and irritability, so her GP, Dr Stringer, advised that she cut her working hours back that week to four per day.[54]The plaintiff was not then working for her former employer. The plaintiff’s working hours were performed at home in her husband’s business.
  1. [86]
    On 15 March 2010 Dr Stringer reported:

Pam has been struggling with the return to work program.  She is not sleeping, her energy is low, her aches and pains are returning and she is feeling irritable, overwhelmed, despondent and mentally dull.  The experience of the psychiatric assessment was also traumatic in itself with the assessor showing absolutely no interest in her as a person and not allowing her to explain a point where a simple “yes” or “no” was inadequate.  I am sure that the experience itself, along with the increase in work hours and resultant time pressures and pain, have contributed to Pam feeling almost back to square one in terms of her recovery.  I have advised Pam to only work four hours a day this week and to make time for her swimming and other therapies.

  1. [87]
    A medical report from Dr Fin Cai, rheumatologist was received by WorkCover on 25 March 2010. The full report is not in Exhibit 1 because the full report was not considered by those persons for the insurer and the trustee who rejected the plaintiff’s TPD claim. However, an extract of Dr Cai’s report appeared in the reasons of Q-Comp given on 6 October 2010 and is extracted below at that date in this chronology. It follows that only the extract of Dr Cai’s report was available to those who considered the plaintiff’s TPD claim on behalf of the insurer and the trustee.
  1. [88]
    On 27 April 2010 Dr Stringer wrote to Dr Bossingham, Rheumatology Outpatients at Cairns Base Hospital:

for an opinion and management.  Pam has symptoms and signs consistent with fibromyalgia… triggered by her extremely stressful working conditions over a prolonged period.  Pam has seen a rheumatologist in Adelaide in January and a report from that doctor to WorkCover has led them to reject her claim for fibromyalgia.  I was wondering if you would be happy to see Pam for a second opinion as we are considering contesting the WorkCover decision.  Pam has since left that employment, after a successful WorkCover claim re depression and anxiety.

During the time in which the claim was being resolved, Pam was extremely fatigued and her long standing intermittent symptoms of pain in her trunk and proximal limbs worsened considerably.  The physiotherapist Pam had been seeing identified a high positive proportion of trigger points suggestive of fibromyalgia.  Pam has also had a lot of headaches and pelvic pain.  She suffered with restless legs for years.  Recently her energy has been extremely poor and Pam has not been sleeping well, even with the use of hypnotics…

  1. [89]
    On 20 May 2010 the General Medical Assessment Tribunal – Psychiatric convened to consider the plaintiff’s application for compensation related to the injury “Chronic Adjustment Disorder with Depressed Mood”.  The plaintiff described her situation to the Tribunal and the Tribunal reported that she:

says her sleep pattern is broken and she can wake at 1.00 am to 2.00 am and have difficulty returning to sleep and she lies there “worrying about everything”… says she spends her day currently, on a return to work program of some four hours per day, five days a week in her husband’s local business doing bookwork and advertising aspects of the business.  She had gone up to six hours a day, five days a week but this did not last…she no longer enjoys her housework but…can go shopping when this is essential…she is frequently very tearful and distressed and can become panicky especially in crowds.  Today she did suffer aspects of panic whilst in the waiting room because of the presence of other persons there that caused her concern…She says she finds everyday life is too difficult for her… Regarding the future… she has no formed ideas and she says she has not thought about it much.  She denies strongly any feeling of depressed mood… She did describe some feelings of inferiority in regard to her work associates over the years because of her academic qualifications and she indicates that she had done some TAFE subjects with some success…she sees her general practitioner each two to three weeks for physical symptoms.  She is currently having counselling from her general practitioner and has declined psychologist or psychiatric referral…

  1. [90]
    In considering that application for workers compensation, the Tribunal considered, among other documents, the following documents, extracts of which appear in chronological sequence in these reasons:
  1. The plaintiff’s application for compensation dated 2 November 2009;
  1. Dr Stringer’s medical certificate dated 20 October 2009;[55]
  1. Dr Stringer’s medical certificate dated 23 February 2010;[56]
  1. Report Dr Chalk dated 1 March 2010;[57]
  1. Report Dr Stringer dated 15 March 2010;[58]
  1. Report Dr Stringer dated 14 December 2009 of her suspicion of fibromyalgia.[59]

Thus, the General Medical Assessment Tribunal – Psychiatric did not appear to have before it the reports of rheumatologist, Dr Cai, but the tribunal had the benefit of Dr Stringer’s suspicion expressed on 14 December 2009 that the plaintiff may have fibromyalgia.

  1. [91]
    The General Medical Assessment Tribunal – Psychiatric reported its decision:

Decision

… the Tribunal determined that:

…as at 29 May 2010 there exists in the worker an incapacity for work resulting from the injury for which the application for compensation was made; and … the incapacity is … partial … and … permanent; and …

the worker’s injury has resulted in permanent impairment; and the nature of the impairment is Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood; and the degree of impairment is ten (10) per cent…

  1. [92]
    No finding was made, nor required, about whether the plaintiff was unable to ever work again.
  1. [93]
    Dr Chalk has considerable experience on the General Medical Assessment Tribunal – Psychiatric, including as chair.[60]In evidence in the trial he described a 10% impairment as a “mild” one indicating that the plaintiff then had an ability to engage in any work she was trained to perform.[61]
  1. [94]
    On 27 May 2010 the plaintiff was offered $24,471 lump sum compensation by WorkCover for “Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood” for 10 percent “degree of permanent impairment attributable to the injury”.[62]The plaintiff accepted that offer on 5 July 2010.
  1. [95]
    On 11 June 2010 the plaintiff applied to Q-COMP for review of a decision of WorkCover rejecting her application made on 26 February 2010.[63]
  1. [96]
    The plaintiff’s work for the family business declined to two hours per week. [64]
  1. [97]
    On 18 August 2010 Dr Zurauskas, consultant physician in the department of rheumatology at the Cairns Base Hospital replied to Dr Stringer’s letter to Dr Bossingham in respect of her reference of the plaintiff for rheumatology assessment.  The plaintiff’s counsel relied on the following portions of the report by Dr Zurauskas:[65]

Her past medical history is:

  1. Migraines/headaches.
  1. Endometriosis.

…

She was seen by a rheumatology [sic] in Adelaide in January … and diagnosed with Fibromyalgia and sacroiliitis …

She reports an approximately 5-6 year history of aching in her shoulders, upper back, neck and small upper limbs.  She has also noted some diffuse low back pain mainly referred about the right buttock, with some less severe degree of proximal leg aches.  She says that the symptoms are constant, and exacerbated by prolonged periods of either sitting or standing … she has noted periods in which there is difficulty turning in bed at night due to the pain about the right buttock … she has a poor sleep pattern at times … When she saw the rheumatologist in the beginning of this year and she had a battery of blood and urine tests which I believe did not show any significant abnormalities such as inflammation or positive tests for autoimmune disease. … She … has scattered tender points particularly around the upper trunk, shoulder girdle and neck …

My opinion is that this lady has features predominantly of fibromyalgia.  There is some clinical and radiological evidence of mild sacral iliitis.  Certainly previous blood tests have not revealed any significant degrees of inflammation and she has an otherwise excellent range of spinal movement, so I think a spondoarthropathy is fairly unlikely.  I cannot find any record of her HLAB27 antigen, although this would not change my opinion or management.  It is possible that her sacral iliitis is mechanical in nature.  I can not say definitely that her work is responsible for this, but I think that certainly the working conditions might have exacerbated the problem.

I discussed with her that the management of fibromyalgia is along the lines of encouraging aerobic activity, use of simple analgesics, as well as consideration of low dose trycyclic antidepressants … at night.  For her sacral iliac joint pain, she could cautiously use non-steroidal anti-inflammatory if paracetamol were not working …

  1. [98]
    Q-COMP on 6 October 2010 confirmed the decision rejecting the plaintiff’s application for review of a decision of WorkCover rejecting her application made on 26 February 2010. Q-COMP’s stated basis was there was no finding that any (mild) sacroiliitis or fibromyalgia was sustained during work.[66]Q Comp conveyed that decision to the plaintiff by letter dated 6 October 2010.
  1. [99]
    Dr Cai’s reports are not in Ex 1. It follows that those reports were not before the insurer or the trustee when they rejected the plaintiff’s TPD claim. In part, opinions of Dr Cai were available to those rejecting the plaintiff’s TPD claim.
  1. [100]
    Reasons for decision given on 6 October 2010 by Q-COMP[67]are in exhibit 1 and were in the material available to those who determined the plaintiff’s TPD claim.  The reasons for decision given by Q-COMP include[68]an extract of the report of Dr Cai,[69]received by WorkCover and dated 25 March 2010 as follows: 

Pamela described a history of intermittent bilateral buttock pain associated with nocturnal pain and early morning stiffness since July 2009.  Her symptoms deteriorated in October 2009 and was associated with lethargy and irritability, as well as pains around her shoulder, neck area, lower back and bilateral hip area. 

There was multiple mild tender points over the elbow, anterior chest and shoulder area on palpation, no sacroiliac joint tenderness on palpation. 

My clinical assessment was that Pamela has back pain and bilateral buttock pain related to the mild sacroiliitis scene on the whole body bone scan.

Mrs Williams’ employment is not a significant contributing factor to this injury, but immobility associated with her prolonged working hours can certainly worsen her symptoms. 

  1. [101]
    Q-COMP’s reasons for decision next observed that on 20 September 2010 the plaintiff has provided a medical report from Dr Julian Zurauskas, rheumatologist. The reasons set out that the report of Dr Zurauskas stated in part that: 

My opinion is that this lady has features predominantly of fibromyalgia.  There is some clinical and radiological evidence of mild sacral iliitis.  Certainly previous blood tests have not revealed any significant degrees of inflammation and she has otherwise excellent range of spinal movement, so I think a spondyloarthropathy is fairly unlikely.  I cannot find any record of her HLAB27 antigen, although this would not change my opinion or management.  It is possible that her sacroil iliitis is mechanical in nature.  I cannot say definitely that her work is responsible for this, but think that certainly the working conditions might have exacerbated the problem. 

  1. [102]
    Q-COMP’s reasons noted that WorkCover had accepted that the plaintiff had sustained an injury namely sacroiliitis and fibromyalgia and that that issue was not in dispute on the occasion of Q-COMP’s review. It was clear from the reasons that the issue for Q-COMP was whether the plaintiff’s injury was sustained as a result of employment and whether employment was a significant contributing factor. Q-COMP was not satisfied that the injury was sustained in relation to the plaintiff’s employment.[70]
  1. [103]
    Insofar as the report of Dr Zurauskas from Cairns and its extract contained in Q-COMP’s reasons suggest that the plaintiff had been diagnosed in Adelaide in January 2010 with fibromyalgia, it implies that Dr Cai in Adelaide in January 2010 had diagnosed fibromyalgia. One sees that the report of Dr Zurauskas does not identify a report of Dr Cai supporting that alleged diagnosis.
  1. [104]
    Two reports of Dr Cai were made on 7 and 11 January 2010 and a third on 25 March 2010. They were tendered as exhibits 14, 15 and 16. They were not in exhibit 1. They were not available to the insurer when it rejected the plaintiff’s TPD claim. They reveal that Dr Cai’s first opinion was written on 7 January before blood tests and a whole body scan were performed. Dr Cai’s first opinion was “most likely fibromyalgia and possibly underlying depression”. After expressing that opinion on 7 January 2010, blood tests and a whole body scan were performed. After Dr Cai had the benefit of those investigations her next two written opinions did not expressly confirm her earlier diagnosis that the plaintiff had “most likely fibromyalgia”. After those tests Dr Cai’s reports suggest that she resiled from her earlier unqualified diagnosis of “most likely fibromyalgia” and found symptoms “suggestive of fibromyalgia”. Her report of 25 March 2010 to WorkCover, with the benefit of those tests and that scan was:
  1. Diagnosis of all work related conditions:

My clinical assessment was that Pamela has back pain and bilateral buttock pain related to the mild sacroiliitis seen on the whole body bone scan.  Her prolonged working hours in front of a computer monitor and immobility certainly contributed to her back/buttock pain and stiffness.  She also has non-specific myalgia/arthralgia with tender points on examination, which is suggestive of fibromyalgia.  She also exhibited anxiety which is a common association with fibromyalgia patients, but I did not have a chance to assess her mental state in detail.

…

  1. Prognosis

With appropriate treatment and rehabilitation, Pamela’s prognosis should be good.

  1. [105]
    The plaintiff’s counsel emphasised that the insurer, by not calling for Dr Cai’s report of 25 March 2010 did not receive Dr Cai’s opinion that the plaintiff “had fibromyalgia”.[71]
  1. [106]
    Because Dr Cai’s 3 reports were not before the insurer, it did not consider the proper interpretation of the three reports. Dr Cai’s 3 reports in their full terms are in evidence. An objective reading of Dr Cai’s three reports suggests that after Dr Cai’s diagnosis on 7 January 2010 of “most likely fibromyalgia” she took advantage of test results and her opinion changed. That is not to say that she rejected fibromyalgia as a cause of some of the plaintiff’s symptoms. Rather, her reports were to the effect that she came to the opinion that mild sacroiliitis and prolonged immobility in front of a computer monitor caused some of the plaintiff’s symptoms. Dr Cai accepted that some symptoms were “suggestive” of having fibromyalgia as a cause or contributing cause. My opinion about how those reports should be read is consistent with a file note[72]signed by Dr Cai of a conversation with the plaintiff’s lawyers and dated 3 February 2016. I infer that the interrogator directed Dr Cai towards the issue of whether the plaintiff suffered from fibromyalgia in 2010. In spite of fibromyalgia’s presence in 2010 being a significant issue for discussion on 3 February 2016, the conversation did not elicit an opinion that it was likely that the plaintiff had fibromyalgia in 2010. The conversation elicited the opinion that symptoms 6 years before, in 2010, were then “consistent” with fibromyalgia.  The note records that Dr Cai advised:

I saw Pamela Williams on two occasions, four days apart, during her holiday visit to Adelaide, and my focus was on a diagnosis for her symptoms and recommendations for management.  Mrs Williams’ symptoms were consistent with fibromyalgia.  Fibromyalgia is a diagnosis of exclusion.  There were 2 other medical conditions contributing to her presentation, depression and sacroiliitis … in my experience symptoms of fibromyalgia will wax and wane.

People with fibromyalgia sit on a spectrum of severity ranging from mild symptoms where they can almost work fulltime up to severe symptoms where they cannot get out of bed on some days and could not work.

Generally speaking, the longer someone has symptoms of fibromyalgia the less likely that they will recover.

The condition of sacroiliitis is an autoimmune disorder.  Sacroiliitis is an inflammatory condition involving he sacroiliac joints – between the sacrum and ileum bone of the pelvis, the latter forms part of the hip joint.

  1. [107]
    There was no opportunity to ask Dr Zurauskas whether his opinion that the plaintiff had “features predominantly of fibromyalgia” on 18 August 2010 had been influenced by his acting on the misleading premise that a rheumatologist (Dr Cai) in January 2010 had diagnosed fibromyalgia, when the more accurate premise was that the rheumatologist had diagnosed back pain and bilateral buttock pain related to the mild sacroiliitis seen on the whole body bone scan and had advised that prolonged working hours in front of a computer monitor and immobility certainly contributed to her back/buttock pain and stiffness; and that rheumatologist had reported non-specific myalgia/arthralgia with tender points on examination, which was suggestive of fibromyalgia. The report of Dr Zurauskas was admitted for the purpose of the first issue about whether the insurer gave proper consideration to the plaintiff’s claim. It was also received under s 92 of the Evidence Act 1977 (Qld) for use if the court assesses the TPD claim.  Dr Zurauskas could not be located and the defendants had no opportunity to cross-examine him.  It is accepted that the weight of the report is diminished for the plaintiff’s purposes on the second stage enquiry.
  1. [108]
    On 17 December 2010 Mercer (Australia) Pty Ltd (Mercer) advised that it acted on behalf of the Trustee and would be acting as the intermediary between the plaintiff, the Insurer and the Trustee.  Mercer noted that it had been advised that the plaintiff wished to initiate a Total and Permanent Disablement (TPD) and Total Temporary Disablement (TTD) claim and explained that the insurer would assess the application and that once the assessment was completed by the insurer the trustee would independently review the evidence and make a determination.[73]
  1. [109]
    On 7 March 2011[74]the plaintiff lodged a Group Insurance Member’s statement containing her claim for TPD and TTD, noting her occupation as “administration”, her date of last day at work as 28 February 2010, her “injury” as stress and anxiety dated 1 October 2009.  She included an illness claim describing the nature of her “illness” as fibromyalgia stating that she first became aware of it on 10 January 2010.  She asserted that from 20 October 2009 to the date of the statement she had been unable to perform the normal duties of her usual occupation.  Instead of listing the duties she was unable to perform the plaintiff inserted “fatigue, depression, pain”.  The plaintiff’s counsel submitted that the application was lodged in about March 2010.  I reject that submission.  The application bears the date of 7 March 2011 in several places and refers to a date of last visit to a doctor or hospital as 21 February 2011.
  1. [110]
    The quantum of the plaintiff’s benefit sum insured in the event of her TPD as at 19 October 2009 was $436,800.00 and that quantum is admitted.[75]
  1. [111]
    The plaintiff’s application was accompanied by a “disability claim medical report dated 15 March 2011[76] prepared by Dr Stringer in which the doctor answered a number of the insurer’s questions and, in particular:
  1. What is the principal diagnosis of the current injury/sickness?
  1. (a)
    Stress & anxiety – 10 per cent incapacitated
  1. (b)
    Fibromyalgia

…

  1. On what date did current injury/sickness first occur?  Date months leading up to Oct 2009.
  1. List all dates the patient has attended you for this injury/sickness.

20/10/09, 26/10/09, 30/6/09, 9/11/09, 13/11/09, 16/11/09, 23/11/09, 30/11/09, 5/2/10, 15/3/10, 20/3/10, 29/3/10, 16/4/10, 27/4/10, 24/5/10, 25/5/10, 15/6/10, 21/2/11.

Section B-Medical details

…

  1. Has the patient suffered previously from the same or related condition?  Yes

…

May have been developing pains of fibromyalgia over a number of years prior to diagnosis especially sacroiliac pain/inflammation

…

  1. Are there any concurrent conditions?

Hay fever

Section C-Occupation details

  1. What were the usual duties of the patient’s normal occupation?

24/7 availability for technical advice for bank operating around the globe.  Constantly on computer, Emergencies, Deadlines.

…

3. …  In your opinion, do the limitations and restrictions that you have outlined above totally prevent the patient working in his/her usual occupation?

Yes

… (c) If the patient is currently unable to work, when do you expect that these restrictions/limitations will improve to enable a return to work:

On a part-time basis?  Date 11/2/2010 started some part-time work in husband’s business – struggled with this.

…

  1. In your opinion, at the current time, can the patient perform any duties of his/her normal occupation?  No.  Not available as piecemeal job

…

  1. Is the patient able to perform any kind of work?  Yes

…

Limited computer work for ≤ 2h at a sitting and not consistently – some days not able to work at all.

6 (a) Do you expect the Patient to ever fully return to the usual duties of his/her normal occupation?

No.

  1. [112]
    That report of Dr Stringer noted one matter particularly identified by the plaintiff in her pleading. That was Dr Stringer’s opinion that the prognosis was “likely to be ongoing symptoms and vulnerabilities that need to be managed in the long-term rather than cured”.
  1. [113]
    On 14 April 2011 a document “MDGuidelines” describing features of fibromyalgia was printed[77]and included with material available to assist the insurer and trustee with considering the plaintiff’s claim.  Relevant extracts are:

Fibromyalgia (FM) is a term used to describe several interrelated chronic conditions characterised by fatigue, stiffness, and achy pain in the muscles, ligaments and tendons …

There does not appear to be a single cause of fibromyalgia.  Possible triggers include … sleep disturbances … Hormonal changes and psychological stress may be additional triggers

…

Diagnosis

History: individuals with FM report pain on both sides of the body, above and below the waist, and in the axial skeleton.  They may also report fatigue and disturbed sleep; stiffness; anxiety; depression … painful menstruation …

Physical exam: findings on physical examination are unremarkable in persons suspected of having FM.  A diagnosis of FM requires that individuals report pain on digital palpation (gentle palpation or evaluation with dolorimeter) in at least 11 of 18 specific tender points, which are located in many different body regions.

..

Length of disability

Although persons with FM may self-limit their work or social activities, there may be no objective medical basis for disability.  This is a controversial diagnosis.  Contact physician for additional information.

At the same time an “MDGuidelines” document[78]for “depression, Major” was also printed and included with material available to assist the insurer and trustee with considering the plaintiff’s claim.

  1. [114]
    On 18 April 2011 Dr Cygler of Unified Health Care Group wrote to Dr Stringer on behalf of AXA Australia in relation to the insurance claim by the plaintiff.  He enclosed a request for the answers to 12 questions.[79]
  1. [115]
    On 25 September 2011 Dr Stringer answered those questions comprehensively:[80]

1. Symptoms and Signs

Over the last 2 years, Pam has described many symptoms of depression, anxiety and chronic fatigue, including:

  • feeling terrible
  • not sleeping well
  • no energy
  • no enjoyment or enthusiasm
  • eating more than usual
  • concentration poor
  • can’t find common words at times
  • feels like brick in head
  • feels as if it would be relieved with sleep
  • exhausted
  • can only do an hour’s work at a time then has to rest – e.g. .housework or prepare meal
  • feels tired and flat and miserable
  • anxious – fears about her husband’s work commitments, for instance
  • needs to sleep in afternoon
  • feels hopeless – cannot be bothered about anything and cannot do anything
  • feels like cannot think clearly for these days and would not be able to work at that time, putting her off looking for a job

Pam has appeared flattened in affect, stopped and low in energy.

2. Basis of diagnosis

There are no investigations to assist with this type of diagnosis – it is all based on symptoms and signs.

3. Prognosis

Pam has been significantly traumatised by her experience with the Deutcher Bank.  She was assessed by three psychiatrist [sic] on the WorkCover review panel as having a 10% emotional disability caused by her handling by the Bank.  There is likely to be some residue well into the future, and possibly permanently, as Pam’s confidence has been very adversely affected.  Pam has a permanent partial disability as a result of her experiences.

4. Capacity to return to pre-disability occupation

I feel it is very unlikely that Pam will be able to return to the role of Senior Administrator due to both her emotional and physical problems.  Pam is not able to sit at a computer for more than an hour at a time and has difficulty concentrating.  Her energy levels fluctuate and Pam does not feel able to take on full time employment for fear she would need too much time off and be unfairly unreliable.  Pam’s concentration is poor and she has lost a lot of confidence.  Her physical pain (from fibromyalgia) and her emotional debility make each other worse, and she needs to be consistently, vigilant about limiting her activities to accommodate both, in the context of being able to care for her family.

5. Disability extent and timeframe

Pam had a partial disability, but it is still making finding a suitable position very difficult.  It is my understanding that Pam is working part-time from home on a casual basis for her husband’s business, but currently only about 1 hour per week on book work.  This was instigated originally as a work trial by Workcover, [sic] but even there, her involvement had to be very limited.

6. Alternative occupations

Any work Pam returns to in the future will need to be extremely flexible in its demands, to accommodate Pam’s unpredictable fluctuations in energy, concentration and physical capabilities (even to sit at a computer).  Pam has attended retraining offered by Deutscher Bank, and I am sure she has many administrative and analytical/problem-solving skills that may be transferable to other positions, however, whether such a position, with the necessary flexibility, would be available to her in this area, is unknown and probably unlikely.

7. Timeframe and resuming work

Pam is already doing a small amount of work for her husband.

8. Investigations

There were no investigations.

9. Medical treatment

Pam has had counselling and has been given relaxation techniques. She took herself to a Yoga Retreat to learn skills to apply to regularly control her anxiety and enhance her energy.  At present, Pam has intermittent ongoing GP counselling as required.  Pam has also pursued the Fibromyalgia with a Rheumatologist, and has supportive care for this – mainly graded exercise and acupuncture as needed.

10. Rehabilitation

A structured return to work programme has already been tried by Workcover, [sic] resulting in Pam being in her current position.  There may be some further benefit from formal CBT, though Pam already has excellent insight into her issues, see also number 6 above.

11. Counselling

Pam was referred to Marie O'Dea for grief counselling in 2007 and gained some understanding and benefit from that experience.  Pam was subjected to scrutiny by psychiatrists on two occasions through her Workcover [sic] claim and found this extremely traumatic, having a full blown panic attack prior to the Tribunal review.  These experiences have made Pam very weary [sic] about seeing another psychiatrist/psychologist for treatment, as she feels vulnerable and fearful of returning to an extreme anxiety state in the process.  Pam has made considerable efforts to seek out and practice regularly techniques to assist her conditions.  She has good insight.  Pam is motivated to do what she can to enable herself to get back into work, being bored in her role as housewife and mother.  There may be a time in the future when Pam would benefit from further formal counselling, but I do not believe she is ready for this at present, based on very recent discussions with Pam on the subject.

12. Other information

Pam is loathe to take on a job – especially with a local firm in a small community – when she does not have confidence about her reliability, due to her health issues.  She has recently decided to look into further study as a way to increase her mental and social involvement, and her confidence, having only herself to let down in the event of ill health.  Pam has a lot to contribute and has been frustrated by her inability to do so.  Factors out of her control – such as the ages an [sic] needs of her children and the remoteness of where she lives – are also impacting on the choices available to her re work at present.

  1. [116]
    On 20 October 2011 Mercer wrote to the plaintiff to confirm that the insurer had admitted her claim for TTD for the period 1 July 2010 to 31 March 2011.  After deductions for the waiting period and workers’ compensation payments paid to the plaintiff, the insurer deposited $46,647 to her account for her Total Temporary Disablement to 31 March 2011 which the insurer admitted.
  1. [117]
    On 15 November 2011 the plaintiff was examined by a psychiatrist, Dr Gundabawady in Cairns at the insurer’s request.  Dr Gundabawady provided a medical report.[81]In essence, he diagnosed an anxiety disorder which would not then have prevented the plaintiff from returning to work in her pre-disability occupation so long as she was working regular hours and not the 15 to 16 hour days the plaintiff advised she had been forced to work.  He noted that the plaintiff was then enjoying her job with its limited hours in her husband’s business, was enjoying her lifestyle and was receiving benefits from her income protection policy. He implied that those matters affected her motivation to return to full-time work.  He advised that he “would not be able to comment on to what extent fibromyalgia is preventing her return to work” observing that the extent of her difficulties from fibromyalgia “needs to be further explored by independent medical assessment by a rheumatologist/neurologist”.  On page 8 of his report he wrote “Most of her difficulties seem to be from fibromyalgia which needs to be further explored by independent medical assessment by a rheumatologist/neurologist.” Read in isolation, that appears to be an opinion about the presence of fibromyalgia and its consequences. Counsel for the plaintiff submitted that the doctor’s opinion was that the plaintiff’s condition was fibromyalgia if anything rather than a psychiatric condition.[82]I reject that interpretation of the report. Objectively read, in the context of his whole report, the psychiatrist did not appear to be expressing an opinion on whether or not the plaintiff had suffered from fibromyalgia in the past or was suffering from it in November 2011. Rather, Dr Gundabawady accepted that Dr Zurauskas had reported 15 months before on 18 August 2010 “My opinion is that this lady has features predominantly of fibromyalgia” and Dr Gundabawady was informed that in January 2010 Dr Cai, a rheumatologist, had diagnosed fibromyalgia. He did not have Dr Cai’s report.  The plaintiff’s counsel emphasised that Dr Gundabawady reported: “there are no inconsistencies evident from the mental state examination.”[83]The plaintiff’s counsel submitted, in effect, that the statement represented an opinion that the plaintiff was not malingering.[84]I reject that submission.  As I read that line of the report in the context of the report, the doctor was not expressing an opinion one way or the other about whether the plaintiff was malingering.
  1. [118]
    The plaintiff gave evidence that she did not agree with the component of Dr Gundabawady’s report which the plaintiff paraphrased as indicating that she was then (in November 2011) enjoying being on benefits and not working.[85]The plaintiff did not recall her conversation with the doctor on that issue. The plaintiff’s recollection misstates Dr Gundabawady’s report about both matters. Dr Gundabawady’s report was that the plaintiff was then (in November 2011) enjoying her job with its limited hours in her husband’s business. He did not report that she enjoyed not working. Dr Gundabawady’s report was that the plaintiff was then (in November 2011) receiving benefits. He did not report that she enjoyed receiving benefits. I am not satisfied that Dr Gundabawady’s report was inconsistent with information he was told by the plaintiff.  The plaintiff gave evidence that she answered truthfully the questions put to her by Dr Gundabawady.[86]
  1. [119]
    On 7 December 2011 the insurer admitted TTD for the period 1 April 2011 to 30 November 2011 and paid a net benefit of $41,464 to the plaintiff’s nominated account.[87]
  1. [120]
    On 16 December 2011 Dr Stringer expressed an opinion in a further progress claim form that the plaintiff suffered stress and anxiety, fibromyalgia and fatigue from 1 December 2011 to 31 January 2012, but that she was able to do bookwork for few hours per week and housework, that she cannot sit for prolonged periods over half an hour and that concentration was difficult.[88]
  1. [121]
    In 2011 the plaintiff with her three children flew via Malaysia for a month long holiday in China and Vietnam, accepted by the plaintiff as “harsh environments”.[89]The plaintiff also had a two week vacation in New Zealand in 2011.
  1. [122]
    On 5 January 2012 the insurer admitted the plaintiff’s TTD claim for the period 1 December to 31 December 2011 and paid $5,183.
  1. [123]
    The 18 January 2012 was the last date to which the plaintiff had an entitlement to benefits for TTD, irrespective of whether she had a continuing temporary total disability.[90]
  1. [124]
    On 2 February 2012 the insurer admitted the plaintiff’s TTD claim for the period 1 to 18 January 2012 and paid $3,295.90 to her account.[91]This amounted to a total of $276,293.90 paid to the plaintiff by way of redundancy, insurance and for worker’s compensation since ceasing work fifteen months earlier on 26 October 2010.
  1. [125]
    As a result of the suggestion by Dr Gundabawady that the plaintiff be reviewed by a rheumatologist, the plaintiff was reviewed by a consultant physician in rheumatology, Dr Vecchio. Dr Vecchio’s report of 21 February 2012[92]sets out the history as relayed by the plaintiff of her work stress culminating in her redundancy. The doctor continued:

She … has not worked since early 2010 … Ms Williams has not undertaken any paid employment but does assist her husband’s small business by performing an hour or two of administrative work per week.  Ms Williams attempted to volunteer in a school library but her fatigue became overwhelming and, on several occasions, was unable to attend this voluntary work due to tiredness and other symptoms …

Current Symptoms

Ms Williams indicates that there are the following symptoms:

  1. Tiredness and fatigue independent of sleep, and so is non-restorative.
  1. Low back pain with stiffness in the right leg in the morning which improves diurnally.
  1. Her legs are restless during the night and she needs to squeeze or hold them.
  1. There is swelling of the lower limbs.
  1. Daytime anergia.
  1. Social isolation as a consequence of the above.
  1. Headaches with intermittent migraines.
  1. Visual film over her eyes.
  1. Exacerbation of these symptoms during peri-menstrual period.
  1. Unreliability due to fatigue precluding actioning of obligations.

Ms Williams does not use any prescribed medication but does take fish oils, iodine drops and iron supplements.

She does not have any hobbies but does swim for 20 minutes in her own pool.  She does attend yoga which assists her lower limb tightness.

…

Examination

…

The physical examination findings are minimal, other than the obvious appearance of good health, nutrition and muscle bulk.

There is no evidence of fibromuscular tenderness, fibromyalgia or fibrositis.

…

Summary and Assessment

Ms Williams has a number of symptoms which are consistent with a “fatiguing syndrome” and/or anxiety/stress.  I do not believe this is a physical illness.  I am unable to verify the fibromyalgia diagnosis although acknowledge that this may have been a diagnosis previously.  The latter is not necessarily permanent but may be phasic in relation to external and internal stressors, coping mechanisms and intangibles, such as support structures and inherent personality.  The absence of tender points currently does not sway one towards or away from this diagnosis.

It is very difficult, from a consultation of this type, to certify that Ms Williams is unable to work currently and will never work again, as there are no objective findings.  The entire basis of work absence is a subjective interpretation of symptoms in the setting of motivation, need, opportunity, satisfaction and secondary gain from working or not working.  It is my opinion that this lady could be gainfully employed, at least 20 hours a week (if not fulltime) in a less demanding occupation than previously attempted, or in a job fitting of her experience and talent.

Obviously, the ability to work is an amalgamation of need, ability, job opportunity, psychological frame and work satisfaction.  I am unable to detect a medical condition which would deter from Ms Williams being able to work.

…

  1. Diagnosis

…

Anxiety-related musculoskeletal symptoms.  I am unable to support the diagnosis of fibromyalgia or any reason why Ms Williams is unable to continue in the workforce.

…

  1. Treatment

…

As the condition is “woolly” and related to her psychological status rather than a medical condition, further treatment is difficult to comment upon, but returning to an occupation with lower expectations and responsibility would be a good start, if she is motivated to return to the workforce.  I am unable to recommend any other defined treatment.

  1. Work Capacity/Prognosis

…

It is my opinion that Ms William is able to return to the workforce, at least 20 hours a week (and very probably fulltime), performing administrative or any other duties she is qualified to perform.  She may prefer to not work in a stressful position for a large corporation.

  1. Motivation

…

It is difficult to assess motivation within a consultation of this type.  I am unable to detect any non-medical factors but Ms Williams does not manifest any medical reasons which deter her from returning to work.

  1. [126]
    In about March 2012 the plaintiff commenced in semester 1 of year 1 of a course of study for a bachelor of laws degree from James Cook University.
  1. [127]
    On 20 June 2012 Ms Harriet Smith, a rehabilitation consultant, provided an employability assessment to AXA Australia:

Based on Ms Williams’ education, training and experience and the medical restrictions associated with her injury, she is considered suitable for the following roles and she would not require any further training or qualifications to be eligible for employment:

  • Administrative Assistant
  • Receptionist
  • Bank Teller/Customer Service Officer

Please note: the employment options of Accounting Clerk, Bookkeeper and Payroll Officer were also considered; however Ms Williams was not considered eligible for these roles due to the following:

  1. (i)
    she does not have any qualifications relevant to these roles;
  1. (ii)
    she is only completing two hours per week of basic bookkeeping duties for her husband’s business so her current experience cannot be highly regarded; and
  1. (iii)
    her prior experience in bookkeeping roles was 20 years earlier.

The labour market analysis indicates that Ms Williams would be unlikely to obtain employment in her local region as an administrative assistant or receptionist.  This is due to high unemployment rates in Port Douglas and the Cairns region, and consistent feedback from employers and recruitment agencies that there are few advertised positions at this time, and that for the vacancies that do exist there is a high large number of highly skilled applicants with current experience.  It appears that Ms Williams’s best chance of securing employment in these roles in her local area would be through word-of-mouth and unadvertised positions, but this method cannot be relied on.

In contrast, the labour market analysis for the position of bank teller indicates that Ms Douglas [sic] would be likely to secure employment in her local area.  Employers have advised that positions arise quite frequently and the number of applicants is generally not excessive, particularly during the tourist season when job vacancies for other work increases and applicants focus on different fields.

…

…

Ms Williams would be suitable to the administrative assistant in an office-based environment … she would present as an attractive candidate for less demanding administrative roles … Ms Williams would be eligible for employment as a receptionist … The types of reception roles recommended may include work in a medical centre, hotel or motel, a corporate setting or a tourist information centre … Ms Williams would be highly suitable to obtaining work as a bank teller …

  1. [128]
    By letter dated 25 July 2012 the insurer, on letterhead of AXA, the insurer wrote[93]to the plaintiff and invited her to review evidence referred to in the letter and provide commentary or evidence within 28 days. The author advised that “we have obtained various medical reports and supplementary information … which we consider to contain information which is considered adverse to your claim”.  The letter referred to and enclosed five documents and referred back to other material sent by Mercer to the plaintiff under cover of a letter dated 4 April 2011. The author did not state that every document was adverse to the plaintiff’s claim or that all information in each document was adverse to the plaintiff’s claim. The five documents were not all referred to in the claim summary in which the insurer provided reasons for its decision to the trustee on 4 December 2013. The five documents enclosed were:
  • WorkCover Queensland file dated 8 July 2011;
  • Report Dr Stringer dated 25 September 2011;
  • Report Dr Gundabawady dated 28 November 2011;
  • Report Dr Vecchio dated 21 February 2012;
  • Employability assessment from Recouvre dated 20 June 2012.
  1. [129]
    On 20 December 2012, the plaintiff again saw Dr Chalk, psychiatrist who provided a report of 24 December 2012.[94]Dr Chalk reported, among other things: 

This lady told me that she had worked in mid-2009 but studied this year, Law through James Cook University.  This involved attending classes three days a week in Smithfield.  A normal load would be eight subjects but she did 10 and achieved distinctions in the core subjects and credits in the electives.  However, she found this a bit much and is planning to go back to full study next year in the hope that she will complete the degree at the end of 2014… She told me this was much better than sitting at home which was driving her to distraction…

In the aftermath of the events at the Deutsch Bank and whilst on WorkCover she had no specific psychiatric or psychological treatment and although antidepressants were suggested, she did not take these for fear of dependence… She is upset easily, is more emotional than she has been in the past, does not sleep particularly well and wakes easily…

She…gets depressed at times though these feelings come and go and says that she constantly pushes herself to put a smile on things…

CURRENT SYMPTOMS: 

… Currently she does not describe being pervasively nervous.  She does not get panic attacks.  She was driving to Cairns three times a week to attend university.  Her sleep fluctuates, her weight is fairly stable.  Her energy levels from her account, are not particularly good.  She does what she has to do.  She finds that her motivation fluctuates.  Her concentration varies…

SUMMARY AND ASSESSMENT: 

This 48 year old lady has residual symptoms of the previous adjustment disorder.  This could be thought of as a chronic dysthymic condition…mild chronic dysthymia… Prognosis is that she is likely to continue to suffer from a degree of symptomatology... She will in the future be able to undertake some form of remunerative employment.  I doubt she will be able to return to the job at the same level that she did previously particularly as she describes that as requiring 24 hour call and being a very hands-on position.  However…she would be able to work in another position, of less intensity… She will be able to participate in an occupation for which she would be reasonably qualified by education, training and experience.  I note she has been studying more than full time in recent months. 

  1. [130]
    On 20 February 2013, the plaintiff’s solicitors wrote to Dr Chalk, including the report from Dr Stringer dated 25 September 2011[95]and asked some questions. 
  1. [131]
    On 26 February 2013,[96]Dr Chalk replied, advising among other things: 

This lady’s past and present psychiatric symptoms do not…clearly indicate that she will have difficulty in obtaining employment.  They do however, suggest that this lady with enduring symptoms, may have difficulty in sustaining employment.  She does describe ongoing difficulties, particularly with her energy, concentration and persistence together with a degree of anhedonia and at times quite marked anxiety.  I note however that she does not describe frank unheralded panic symptoms… The ability to study Law does not equate to the ability to work but it certainly does equate in my view, to the ability to undertake regular activity of a work-like nature… This lady’s current symptoms…would not preclude her from obtaining employment within the legal profession.  Her symptoms may well make it difficult for her to obtain full time work though my clinical experience has…been that symptoms of this type and intensity are not inconsistent with the ability to undertake some form of remunerative employment.  I think it is important to note that at the time this lady ceased working for the Deutsch Bank she had not had or indeed availed herself of appropriate psychiatric or psychological treatment and whilst at the time of her ceasing work, she was totally disabled, in my view it would not be possible at that time, to have determined that she was permanently disabled… That fact that Ms Williams has not been at work for a number of years would clearly impact upon her ability to obtain employment suitable to her education, training and experience… But those difficulties…are…not insurmountable. 

  1. [132]
    On 31 May 2013, the plaintiff’s solicitors wrote[97]to the insurer by letter to AXA Australia. The solicitors made submissions in relation to the allegedly adverse material referred to by the insurer in its letter of 25 July 2012 and in relation to reports of Dr Chalk dated 24 December 2012 and 26 February 2013 which had been provided to the solicitors for the plaintiff. It is alleged in the pleadings and admitted by the defendants that those two further reports of Dr Chalk had then been provided to the insurer.
  1. [133]
    Among other things the solicitors for the plaintiff advised the insurer:

We note that the letter from Mercer also encloses some Q-Comp Reasons for Decision dated 6 October 2010 in relation to a claim for a lower back, soft tissue diseases injury sustained over a period of time…

Of course, a worker’s compensation claim is decided on completely different grounds to a TPD claim.  The relevance of those reasons are therefore marginal at best.

To the extent that the reasons quote from medical evidence then of course the medical evidence itself should be considered not just these reasons.  We would submit that these reasons’ are irrelevant and should not be considered.

  1. [134]
    The reasons for decision from Q-Comp dated 6 October 2010 quoted from what was said in the reasons to be a report of a Dr Fin Cai, rheumatologist received by WorkCover Queensland on 25 March 2010 and quoted from a report of Dr Zurauskas said in the reasons to have been provided by the plaintiff to WorkCover on 20 September 2010. Those extracts are set out in the chronology above for 6 October 2010. Counsel for the plaintiff submitted that the words “to the extent that the reasons quote from medical evidence then of course the medical evidence itself should be considered not just these reasons’” meant “get the reports so that one can ascertain whether relevant portions are being excised or not”.[98]I reject that interpretation. The plaintiff’s solicitors’ letter did not expressly or by necessary implication request or submit that the insurer should first obtain and consider the whole of the reports mentioned by Q-Comp’s reasons being reports of Doctors Springer, Cai and Zurauskas before determining the plaintiff’s claim. The solicitors’ letter did not offer a copy of any report, notwithstanding that the Q-Comp reasons suggested that the report of Dr Zurauskas had been supplied by the plaintiff to WorkCover. The mere fact that the solicitor’s letter omitted to request that the insurer consider the three reports in full does not exclude the possibility that the insurer should have obtained and considered the three reports, in the proper assessment of the claim.  It is a fact alleged by the plaintiff[99]and admitted by the defendant[100]that a report of Dr Zurauskas dated 18 August 2010 was available to the insurer and the trustee at the time of their decisions. 
  1. [135]
    In the same letter of 31 May 2013, the plaintiff’s solicitors emphasised[101]the report of Dr Chalk of 1 March 2010[102]at page 4, lines 54 and 55 which read “She still feels mentally drained but readily admits she is having some good days and others are not so good”.  The solicitors submitted that this “is consistent with our client’s reporting of the effect of her injury throughout time.  There will be periods where she will be completely unable to function and other periods where she can function under some restrictions.  The nature of this intermittent bout of symptoms means that the possibility of holding down gainful employment is unlikely.”
  1. [136]
    Counsel for the plaintiff stressed that the insurer was put on notice of this submission.[103]
  1. [137]
    The same letter from the plaintiff’s solicitors submitted that Dr Gundabawady’s opinion “should not be relied upon given that it does not look globally at all of our client’s injuries and their impact on her ability to work” because, it was submitted, Dr Gundabawady gave his opinion from a psychiatric point of view and had “not taken into account the fibromyalgia and its consequent symptoms”.[104]
  1. [138]
    The plaintiff’s solicitors also submitted in their letter that “a special light duties job or indeed an irregular casual employment or some other lesser role on a part-time basis is not reasonable when compared to what our client was doing prior to her disability”.[105]
  1. [139]
    The letter included a precis of the plaintiff’s instructions about her employability.[106]Counsel for the plaintiff emphasised paragraphs 6, 7, 8, 10, 11, 16, 17, 22 and 23 which described headaches, neck ache and other body aches affecting the plaintiff’s ability to focus and concentrate, her fatiguing easily, that her study of law was to combat boredom and that she did not consider she would ever work in the legal field, that if she missed lectures she could catch up on the reading, that she suffered amnesia from the workload, that there were good medical reasons for avoiding anti-inflammatory pain relief, namely a higher risk of aneurism, that she did not believe she would capable of working as a bank teller because of the need to be on one’s feet for extended periods and/or sitting for extended periods and that she could not do more than a day or two of such work. 
  1. [140]
    Dr Stringer wrote to the plaintiff’s solicitors on 14 July 2013[107]that the plaintiff’s last appointment at the medical centre was on 21 May 2013 (almost two months before) when the plaintiff was:

still suffering intermittently with flu-like symptoms, headache and exhaustion.  She has headaches at least once a week, and often much more frequently, and severe migraines about twice a year.  The exhaustion is such that Pam just has to sleep and cannot function normally.  It is likely that these symptoms are due to fibromyalgia.  We have approached this issue from many angles over recent years, and have been unable to find a solution.

Pam cannot rely on her energy and wellbeing on any given day.  Although she has been able to study, this has been in her own timeframe.  At this point it is my opinion that Pam will never be well enough to return to full time work.

  1. [141]
    On 17 July 2013 the plaintiff's lawyers provided a copy of a report of Dr Stringer dated 14 July 2013 to the insurer.
  1. [142]
    On 30 August 2013, a supplementary report on the plaintiff’s employability for the purposes of assessing her claim for TPD was prepared.[108]This report was similar to the report of 20 June 2012 by Ms Smith.  That is to say, it was generally optimistic about the plaintiff’s prospects of obtaining work as an administrative assistant, bank teller or receptionist. The author Alison Battley, injury management consultant and registered psychologist opined that many residents of Port Douglas, where the plaintiff lived, commuted daily to Cairns for work in spite of the 70km journey; that it was likely that the plaintiff would be able to obtain part-time or full-time employment as an administrative assistant or in a reception based role or as a bank teller/customer service officer in Port Douglas, Cairns or surrounding regions.  
  1. [143]
    On 10 September 2013 a claims assessor at AXA Australia for the insurer wrote to the plaintiff’s solicitors and invited the solicitors to review evidence referred to in the letter and provide commentary or evidence within 28 days. The claims assessor advised that “we have obtained information … which we consider to contain information which is considered adverse to her (the plaintiff’s) claim”.  The letter referred to and enclosed five documents. I note that the author did not state that every document was adverse to the plaintiff’s claim or that all information in each document was adverse to the plaintiff’s claim. The five documents were not all referred to in the ultimate claim summary in which the insurer provided reasons for its decision to the trustee on 4 December 2013. The five documents enclosed were:
  • whole body scan from Dr Martin Tan 7 January 2010;
  • report Dr Chalk 24 December 2012;
  • report Dr Chalk 26 February 2013;
  • report Dr Stringer 14 July 2013;
  • supplementary employability assessment 30 August 2013.
  1. [144]
    On 9 October 2013, the plaintiff’s solicitors responded to their receipt of the supplementary report on employability that the assessor’s opinion was very optimistic, that the plaintiff “could hardly fit the requirement for an outgoing personality” that her “work history reveals that she has never worked with customers.  All of our client’s roles have been back office roles where she has not had to deal with the public.  In our view it is unlikely that our client would gain employment in such a role having had no experience what so ever in customer service at her age”.[109]They asked for the names of the persons with whom the assessor (Ms Battley) spoke so “we can test their evidence”. I have noted in the chronology that the plaintiff’s early work history contained periods where she was likely to have dealt with the public.
  1. [145]
    On 29 October 2013, the plaintiff’s lawyers replied to AXA Australia informing the insurer that the plaintiff advised about a daily commute from Port Douglas to Cairns for work that “it would be impossible for someone to commute such a distance for irregular low paid part time or casual work… The drive… is just over one hour during quiet periods… During school and work hours the commute takes ninety minutes minimum… it would be unreasonable… to commute for irregular low paid part time or casual work to Cairns”.[110]
  1. [146]
    Between 2012 and 2014, the plaintiff completed an accelerated[111]Bachelor of Laws (Hons IIA) at James Cook University in Cairns. That required the plaintiff to drive for 45 minutes to an hour each way to and from Cairns to attend lectures, tutorials and examinations. She completed 26 subjects in 3 years. To obtain her degree with honours IIA was to do so with academic excellence. She studied during three university vacations: mid-year and end of year in 2012 and summer vacation at the end of 2013.[112]There is no suggestion she missed any assessment, though she gave evidence that she found assessment particularly stressful.[113]She missed no examination, even though the examinations dates were randomly assigned by the University. Her grade-point-average was about 5.6.[114]
  1. [147]
    On or about 4 December 2013 the insurer made a decision to deny the plaintiff's application for TPD benefits (the insurer's decision).
  1. [148]
    On 4 December 2013 National Mutual Life Association of Australia Limited wrote to Mercer Retirement Trust. There seems to be no dispute that it was for all practical purposes a letter from the insurer to the trustee. The letter advised: 

Total and Permanent Disablement Claim

…

We have completed our assessment of this claim…

When considering the claim all the evidence (medical and non-medical) was considered together with the elements of the definition. 

The attached comments are AMP’s views of the evidence received.  When considering the claim the trustees should read all the available evidence in its entirety in conjunction with the summary. 

Please find enclosed a copy of the medical evidence used in the assessment of the claim…

  1. [149]
    In that letter the insurer attached a “TPD Final Claim Summary 03/12/13”.[115]The attachment provided:

TPD FINAL CLAIM SUMMARY DATED 03/12/2013

…

When considering the claim, all the evidence available (medical and non-medical) was considered and applied to the terms and conditions on the policy.

The following comments are AMP’s view of the evidence received. When considering the claim, the trustees should read all the available evidence in its entirety in conjunction with this summary.

The following reports in the table below were reviewed and assessed during the claim assessment. We refer you to the final column whereby we have provided an opinion with regards to whether or not each report supports the member's claim for Total and Permanent Disability (TPD):

Date of Report

Report Received From

Specialty

Supports TPD?

14/12/2009

Dr Stringer

General Practitioner

Neither

01/03/2010

Dr Chalk

Psychiatrist

Neither

15/03/2010

Dr Stringer

General Practitioner

Neither

20/05/2010

Medical Tribunal

Medical Assessment

No

29/09/2011

Dr Stringer

General Practitioner

No

28/11/2011

Dr Gundabawady

Psychiatrist

No

21/02/2012

Dr Vecchio

Rheumatologist

No

24/12/2012

Dr Chalk

General Practitioner

No

…

A) Medical Assessment:

Report from Dr Liz Stringer (GP) dated 14 December 2009

“Pam has been troubled by extreme fatigue and aches and pains and I suspect she may have fibromyalgia. Pam’s symptoms developed within 2 weeks of her return to work. I feel she has been pushing herself with her work for a very long time and the contrast with the wellness and relaxedness of her OS trip was too much for her. She has been depressed and anxious.” 

Report from Dr John Chalk (Psychiatrist) dated 1 March 2010

“This lady has a chronic adjustment disorder with depressed mood. This lady is returning to work at the current time in her husband’s business, appears to be well supported and I think this host employment is assisting her. Whilst her incapacity has not ceased, I think that it has reached a stable level and further treatment is unlikely to assist her.” 

Report from Dr Liz Stringer (GP) dated 15 March 2010

“…Pam has been struggling with the return to work programme. She is not sleeping, her energy is low, her aches and pains are returning and she is feeling irritable, overwhelmed, despondent and mentally dull. I have advised Pan to only work 4 hours a day this week and to make time for her swimming and other therapies.” 

Medical Assessment Tribunal Decision dated 20 May 2010

“The Tribunal considers on the basis of its own assessment and all other available evidence that Ms Williams does have a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood…the degree of the impairment is ten (10) percent…” 

Report from Dr Stringer (GP) 29 September 2011

“Over the past two years Pam has described many symptoms of depression anxiety and chronic fatigue.” 

“There are no investigations to assist with this type of diagnosis - it is all based on symptoms and signs.”

“I feel it is very unlikely that Pam will be able to return to the role of Senior Administrator due to both her emotional and physical problems.”

IME report from Dr Anand Gundabawady (Psychiatrist) dated 28 November 2011

“Ms Williams has had no treatment in the form of antidepressant medication, review by psychologist or psychiatrist.” 

“From a psychiatric point of view, Ms Williams does not have an incapacity to perform her pre-disability occupation…”

“From a psychiatric point of view, the only restriction would be working regular hours, i.e. 36-40 hours per week.” 

“Ms Williams has no motivation or intention to return to full-time work other than the work she is currently doing. As reported, this is not due to the anxiety disorder.” 

“I do not think Ms Williams has a psychiatric incapacity to work.” 

IME report from Dr Phillip Vecchio (Rheumatologist) dated 21 February 2012

Diagnosis: “Anxiety-related musculoskeletal symptoms. I am unable to support the diagnosis of fibromyalgia or any reason why Ms Williams is unable to continue in the workforce.” 

“It is very difficult from a consultation of this type, to certify that Ms Williams is unable to work currently and will never work again, as there are no objective findings. The entire basis of work absence is a subjective interpretation of symptoms in the setting of motivation, need, opportunity, satisfaction and secondary gain from working or not working. It is my opinion that this lady could be gainfully employed, at least twenty hours a week (if not full time) in a less demanding occupation than previously attempted, or in a job fitting of her experience and talent.” 

“Obviously, the ability to work is an amalgamation of need, ability, job opportunity, psychological frame and work satisfaction. I am unable to detect a medical condition which would deter from Ms Williams being able to work.” 

Report from Dr John Chalk (Psychiatrist) dated 24 December 2012

“This lady told me that she had worked in mid 2009 but studied this year, Law through James Cook University. This involved attending classes three days a week ... A normal load would be eight subjects but she did ten and achieved distinctions in the core subjects and credits in the electives. However, she found this a bit too much and is planning to go back to full study next year with the hope that she will complete the degree at the end of 2014…” 

“She is not having any active treatment at the current time, is not having any counselling… She is not receiving any psychological therapy and takes no antidepressant medication and takes now only Mersandol occasionally to help her sleep.” 

“Yes, I think she will in the future be able to undertake some form of remunerative employment. I doubt she will be able to return to the job at the same level that she did previously particularly as she describes that as requiring 24 hour call and being a very hands-on position. However, I am of the view that she would be able to work in another position, of less intensity.” 

“Yes, I am of the view that with the passage of time, she will be able to participate in an occupation for which she would be reasonable qualified by education, training and experience. I note that she has been studying more than full time in recent months.”

…

Rationale/Decision

…

The Member’s treater, Dr Stringer opines that she has a permanent partial disability and believes it is very unlikely that she will ever return to her pre-disability occupation. Dr Stringer acknowledges that the Member has many administrative and problem solving skills that may be transferrable, however doubts this type of role would be available due to the flexibility the member requires with her condition. However, I note that Dr Stringer confirms that there are no investigations to assist with the Member's diagnosis therefore her opinion is based on symptoms and signs as noted by the Member, this point was later reconfirmed by Dr Vecchio. 

Dr Stringer opined that the Member was not ready to return to work when she saw the Member in March 2010, reducing her working capacity to 4 hours a day due to low energy levels, aches and pains and feeling overwhelmed, despondent and mentally dull. We note that these symptoms are contradictive to the Member's studying of Law through James Cook University. The Member was studying ten subjects when a normal load was eight suggesting the Member had a greater cognitive capacity than what Dr Stringer advised as shown through her achieved distinctions and credits in her elective studies suggesting a degree of the Member’s competence in her concentration, attention to detail, motivation and endurance.

Upon independent examination by Dr Gundabawady, it was revealed that the Member has not and is not receiving any treatment form a psychologist or psychiatrist and is not on any antidepressant medication.  Her anxiety disorder is of a mild severity and is not preventing her from returning from work in her pre-disability role or similar administrative role in a full-time capacity. Dr Gundabawady notes the only restriction is to not work any more than 36-40 hours per week which is considered a normal working week in general occupations. 

Dr Gundabawady suggested that the Member's fibromyalgia be further explored by a Rheumatologist, at this point a second independent examination took place. Dr Vecchio opined that he is unable to support the diagnosis of Fibromyalgia or any reason as to why the member is unable to continue in the workforce. Further to that point he advised that the member could be gainfully employed at least 20hrs per week, if not full time in a less demanding occupation.

Both independent reports from Dr Vecchio and Dr Gundabawady outline that there are no incapacities which deter the Member from being able to work. Vocational assessments completed confirm both suitable roles without requiring any further training or qualifications as well the labour market research outlining availability of these roles.

Based on the assessed evidence, AMP is of the opinion that the Member is both capable and likely to return to work in any occupation for which she is reasonably qualified by education, training or experience. The Member does not meet the policy definition of Total and Permanent Disablement within the policy terms and conditions.

The claim for Total and Permanent Disablement has been declined...

  1. [150]
    On or about 3 April 2014 the trustee made a decision to deny the plaintiff's application for total and permanent disablement benefits (the trustee's decision).
  1. [151]
    On 3 April 2014, Mercer Superannuation (Australia) Limited wrote to the plaintiff’s solicitors advising: 

The Trustee…has reviewed the information used in the insurer’s assessment and has agreed that the decision to decline your client’s claim is fair and reasonable.  Therefore on behalf of the Trustee, we advise that your client’s application for a Total and Permanent Disablement (TPD) benefit has been declined. 

…

If your client obtains further medical information in support of their application in the future, then your client may request a review of their application…

  1. [152]
    The letter from Mercer Superannuation (Australia) Limited to the plaintiff’s solicitors enclosed a copy of the “TPD Final Claim Summary 03/12/13” created by the insurer.
  1. [153]
    The plaintiff began and completed a stressful and expensive[116]course of study in accelerated time. The plaintiff’s results are evidence that she resiliently persisted in spite of illness, the demands of young children and long journeys by car to lectures, tutorials and examinations. Her determination was not driven by an economic imperative. She gave evidence that she never intended to practice in law.[117]She wanted to complete the law course as an end in itself. Her physical attendances at University were consistently good. I infer from the plaintiff’s university results that in the 3 years from the start of 2012 to the start of 2015 the plaintiff consistently overcame the difficulties she had been experiencing with her motivation, concentration, memory and unreliability.  The plaintiff began her 20,000 word elective research thesis in the second semester of 2014[118]but finished it at the beginning of 2015.[119]
  1. [154]
    The plaintiff gave evidence that her illness makes her too unreliable to undertake permanent employment, because there would be too many occasions when she would fail to attend due to incapacity. Her opinion of her hypothetical unreliability seems unreasonably pessimistic in the context of the three years of resilience she showed obtaining her academic qualification.
  1. [155]
    The defendants contrast the intellectual and motivational requirements for her academic achievement with the intellectual and motivational obstacles of which the plaintiff complains: amnesia, low energy, poor motivation and poor concentration which collectively, allegedly prevent her from attending any work with sufficient regularity to retain the employment. The comparison leads to the conclusion that the plaintiff has summoned commendable determination to overcome low energy and poor motivation and has the intellectual reserves to perform at an intellectually high standard in spite what she regards as her poor concentration and forgetfulness.

The Trust Deed and the Insurance Policy

  1. [156]
    At all material times the Trustee was the trustee of the MercerMaster Fund. The parties agree that the fund:

“…was established by a Trust Deed (“the deed”) and which incorporated as part of the fund the Deutsche Staff Superannuation Plan (“the plan”).”

The deed created two trusts, the Mercer Super Investment Trust (“MSIT”) and the Mercer Super Trust (“MST”).

  1. [157]
    The pleadings raised issues about which are the relevant clauses in deeds, rules and policies. By the start of the trial, counsel had resolved those issues[120]and agreed upon and included in exhibit 1 what they regarded as the relevant extracts. By the time for oral submissions, counsel determined that some material provisions affecting the obligations of the Trustee were not included in exhibit 1.  Counsel for the defendants included in schedule 1 to the defendants’ outline some “Material Provisions of the Deed and Associated Documents”. That schedule is a submission which was not formally admitted into evidence. The submission differed from the evidence in one immaterial way and otherwise added an uncontested material definition of “Total and Permanent Disablement” which is relevant for determining the extent of the Trustee’s obligations. The relevant part found in schedule 1 to the defendants’ outline is included below and combined by me with relevant evidence extracted from exhibit 1.

The Insurer’s Obligations as contained in the policy documents

  1. [158]
    The parties agreed that for the issues arising in this proceeding relevant to the Insurer’s obligations the relevant extract of the AXA Group Insurance Policy Document follow. I have shaded only those words which appear to me to be relevant to the issues:

AXA Group Insurance Policy Document

3.4  TOTAL AND PERMANENT DISABLEMENT BENEFIT

Unless clause 4.1 or 4.2 of Part A apply, and subject to the terms of this policy, we will pay you a benefit for total and permanent disablement (if applies to the person insured) on the total and permanent disablement of the person insured before total and permanent disablement cover stops under clause 2.7 of Part A. The meaning of total and permanent disablement depends on which definition of total and permanent disablement the person insured has under this policy as described in 3.1.1 of Part A or as otherwise agreed between you and us.

Total and permanent disablement means:

The definition of total and permanent disablement comprises of four parts:

  1. Part (a) Unlikely to work
  1. Part (b) Specific loss
  1. Part (c) Future care
  1. Part (d) Terminal illness

The person insured is totally and permanently disabled if either one of the parts below applies:

Part (a) Unlikely to work

  • When all of the following apply to the person insured:

The person insured has been continuously absent from employment through injury or illness for the waiting period; and

  • After considering all evidence which we believe is necessary to reach our view, in our opinion the person insured has become incapacitated to such an extent as to render the person insured unlikely to ever engage in, or work for reward in, any occupation or work for which he or she is reasonably qualified by education, training or experience.

Employment means to render service to the participating employer:

  1. (a)
    Pursuant to a contact of employment with the participating employer; or
  1. (b)
    As a contractor of the participating employer; or
  1. (c)
    As a director of the participating employer; or
  1. (d)
    As a partner where the participating employer is a partnership; or
  1. (e)
    On a basis as agreed between you and us.

Waiting period means:

  1. (a)
    For total and permanent disablement, the period as described in the policy schedule; or
  1. (b)
    ...

Policy schedule – Waiting Period

CSD

Employer plans

TPD cover: six months for part (a) of the Full TPD definition unless otherwise described in the group life employer plan schedule. No waiting period applies for Limited TPD.

Issue 1: whether the plaintiff’s ability to return to part-time work or casual or other work of an intermittent nature would disentitle her to the TPD benefit

  1. [159]
    The plaintiff’s contention was that the plaintiff was entitled to the TPD benefit if she was permanently disabled from doing full time relevant work. It follows that the plaintiff contends that the capacity to perform less than full time work, such as part-time relevant work is not a disentitling ability.
  1. [160]
    The plaintiff’s counsel provided a review of several decisions since 1993 which interpreted several different insurance policies.[121]The review demonstrated that different policies define TPD differently and different definitions led to different answers to the question of whether an ability to do part-time work disentitled claimants to a benefit payable upon TPD. The plaintiff’s counsel accepted the basic proposition that each case will depend upon the terms of the particular policy. The plaintiff’s counsel submitted that the plaintiff’s policy was closer in wording to a policy considered by Hodgson J in Chammas v Harwood Pty Ltd.[122]In Chammas, Hodgson J concluded at 77,999 that “incapacitated for further employment” was to be construed as a reference to full time employment.  That policy wording, interpreted in Chammas, was very different from the wording in the AXA Group Insurance Policy Document clause 3.4 which applies in this proceeding. 
  1. [161]
    Clause 3.4 of the policy in this proceeding requires the insurer to consider whether the plaintiff was “unlikely to ever engage in, or work for reward in, any occupation or work for which… she is reasonably qualified by education, training or experience”. 
  1. [162]
    The defendants rely upon Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd.[123] The judgment is useful for the defendants for two reasons.  The Court of Appeal in Manglicmot declined to follow the approach in Chammas.  Secondly, the wording of the TPD clause in Manglicmot is closer to the wording of the clause under which the plaintiff claims.  Giles JA, with whom Wheatley and Young JJA agreed, wrote at [88] and [89]:

“[88] The Hannover TPD clause defines total and permanent disablement.  It is quite emphatic:  the member must be unable ever to engage in or work for reward in any occupation or work.  As further context, the member must have been absent from work for six months.  Introduction of full time employment or part-time employment into the wording, notions which themselves carry uncertainty (what is the standard for full time employment?) is in my view not warranted.  The clause requires unfitness to work, without distinction between full time work and part-time work other than by regard to the work which the member is reasonably capable of performing by reason of education, training or experience.

[89] There is nothing inherently unfair or unreasonable in the Hannover TFD clause as so construed.  A member who cannot work even part-time has a need; a member who can work part-time has a different need, and one which will vary according to the work the member can perform.  The premium will be struck according to the need to be met, and that is found in the terms of the policy of insurance.”

  1. [163]
    Those passages were approved in Hannover Life Re of Australasia Ltd v Dargan.[124]The TPD clause considered in Dargan required the insurer to form an opinion as to whether the claimant was “unlikely to engage in Regular Remuneration Work”.  Regular Remuneration Work was defined as “an Insured Person is engaged in regular remunerative work if they are doing work in any employment, business, or occupation.  They must be doing it for reward – or the hope of reward – of any type.”  In the principal judgment by Bathurst CJ his Honour wrote:

“[46] The question of whether Mr Dargan suffered Total and Permanent Disablement, notwithstanding his ability to undertake part-time work as a taxi driver at the relevant date, depends on whether such part-time work was Regular Remuneration Work as that term is defined in the policy.  The definition provides that a person in engaged in regular remunerative work if they are doing work in any employment, business or occupation.  There is no limitation on the work being full-time or part-time.  The limitations are that the work must be remunerative, that is done for reward or hope of reward and must be regular.  The word regular means something occurring at fixed times or uniform intervals… Thus, it would not in the present context include casual work or other work of an intermittent nature. However, the word regular would not on a literal construction exclude part-time work…

[48] … the fact that a person had worked full-time does not mean that… she is not reasonably fitted for part-time work.”

  1. [164]
    The relevant words of the plaintiff’s policy’s TPD definition do not expressly differentiate between work for reward which is “regular” or “fulltime” or “part-time”, “casual” or “intermittent”.

The correct question for the insurer

  1. [165]
    The correct question for the insurer is extracted from clause 3.4: is the plaintiff “incapacitated to such an extent as to render (her) unlikely to ever engage in, or work for reward in, any occupation or work for which… she is reasonably qualified by education, training or experience”? There was no limitation in the definition that the work for reward must also be full time as the plaintiff’s counsel contends. The plaintiff’s ability to return to part-time work or casual or other work of an intermittent nature would disentitle her to the TPD benefit, so long as such work was “for reward in, any occupation or work for which… she is reasonably qualified by education, training or experience”.
  1. [166]
    The degree of likelihood of the plaintiff’s return to a relevant occupation or relevant work for reward is made relevant by the phrase in clause 3.4 “unlikely to ever”. It arguably invokes a balance of probabilities test of whether the plaintiff will ever return to relevant work. However, that approach has been rejected and most recently in the Court of Appeal in New South Wales in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim[125]where Leeming JA considered the meaning of “unlikely ever” in the phrase “unlikely ever to engage” in a definition of TPD. His Honour wrote at [89]:[126]

To make an assessment of TPD, it is not sufficient for the insurer to be satisfied that it is more likely than not that the person will never return to relevant work. On the other hand, if there is merely a remote or speculative possibility that the person will at some time in the future return to relevant work, an insurer will not, acting reasonably and in compliance with its duties, be able to be satisfied that the person is not TPD. The critical distinction is between possibilities which are readily contemplatable even though they may not be more probable than not, and possibilities which are remote or speculative. A real chance that a person will return to relevant work, even if it is less than 50%, will preclude an Insured Person being unlikely ever to return to relevant work.

  1. [167]
    The wording in the policy in consideration in this proceeding is “unlikely to ever engage” as opposed to TAL’s wording of “unlikely ever to engage”. The difference is immaterial to the approach to the degree to which the insurer needs be satisfied. It follows that if there is a real chance, even if it is less than 50%, of the plaintiff’s returning to relevant work for reward, she would not be entitled to the TPD benefit and that a real chance is more than a remote or speculative possibility.
  1. [168]
    Plaintiff’s counsel submitted that the interpretation of the policy is affected by the fact that the plaintiff was working full time and that it would be fair to interpret it as intending that if the plaintiff cannot work full time she is entitled to a benefit. Fairness to contracting parties who reduce their agreement to writing requires that the writing be interpreted according to its words. It would be fair to examine a claimant’s circumstances if the wording of a contract required it. For example, if a policy had raised the issue of whether a claimant was “unlikely to ever engage in, or work for reward in, any occupation or work such as the occupation or work the worker was engaged in when the worker’s incapacity began” a claimant worker would have a reasonable and orthodox argument that occupation or work the worker was engaged in encompassed the type of work and whether it was being performed full time or at a lesser capacity. The wording of the policy under which the plaintiff claims is fundamentally different. The fact that the plaintiff was classified as or working as a full time employee does not affect the interpretation of this policy.
  1. [169]
    The first issue is determined against the plaintiff. If the plaintiff has a real chance of returning to part-time, or casual or other relevant work of an intermittent nature she is not entitled to the TPD benefit under the policy. A chance of returning to such work may be real despite being less than a 50% chance.
  1. [170]
    This issue was submitted to be the cornerstone of the plaintiff’s case, and rightly so. The plaintiff’s loss on this issue significantly weakens the strength of her arguments that the insurer acted unreasonably and that the court should determine that she is TPD.

Issue 2: whether the plaintiff fails to satisfy the policy’s six month waiting period condition because she worked for her husband

  1. [171]
    The plaintiff worked during the six month waiting period when she provided administrative services to a substitute employer (namely her husband’s business) at her usual place of work under a return-to-work program she performed as a requirement of WorkCover.
  1. [172]
    The defendants’ submissions appear at paragraphs 151-155 and were confirmed during the oral submissions.[127]
  1. [173]
    The defendants rely on two discrete arguments for submitting that the condition is unfulfilled. They submit that during the relevant six months waiting period from 26 October 2009:
  1. the plaintiff engaged in a return-to-work program with her husband performed as part of her WorkCover claim. The defendants submit that work interrupted the continuous absence from employment with the bank;
  1. a redundancy intervened to cause the plaintiff’s absence from employment, and there is no evidence that continuing illness or injury caused absence from employment with the bank after redundancy
  1. [174]
    The insurance policy relevantly defined:
  1. “employment”, in effect, as rendering services to the “participating employer”; and
  1. “waiting period” as 6 months.
  1. [175]
    Counsel for the defendants submitted that:
  1. the plaintiff continued to render administrative services to a substitute employer (namely the family business) at her usual place of work (9 Bower Close) under a return-to-work program performed as part of her WorkCover claim;
  1. “participating employer” must be construed to encompass employment of the nature being undertaken by the plaintiff during her return-to-work program. But for her employment with Deutsche Bank, she would not have been required to undertake or engage in that work when it was commenced. It would be odd if her performance of those services was therefore excluded. If this is accepted, the plaintiff did not satisfy the first element of TPD.
  1. [176]
    Counsel for the defendants submitted the meaning of “participating employer” was the Deutsche Bank and footnoted that submission by reference to Clause 11 of the policy.[128]Unfortunately, the policy is not among the exhibits.  The extracts of the policy which the plaintiff included in exhibit 1 did not extend to the definition of “participating employer” or to a clause 11.  I proceed on the assumption that “participating employer” included the plaintiff’s employer from 2006, Deutsche Australia Limited, and included the entity referred to by the counsel for the defendants, Deutsche Bank. The issue raised by the defendants is not whether the plaintiff had been employed by one Deutsche Australia Limited or Deutsche Bank but whether “participating employer” must be construed to encompass employment of the nature being undertaken by the plaintiff during her return-to-work program. 
  1. [177]
    The precise identity of the plaintiff’s employer became relevant only for the purpose of considering the submission by the defendants that “participating employer” must be construed to encompass employment of the nature being undertaken by the plaintiff during her return-to-work program which she performed at the suggestion of WorkCover. I refer to the events in the chronology at 9 and 11 February and 15 March 2010.
  1. [178]
    I find that the plaintiff performed administrative work for remuneration for her husband’s business during the six month waiting period. I am not satisfied that the plaintiff’s employer, Deutsche Australia Limited, instructed or paid the plaintiff while she worked for her husband’s business at the behest of WorkCover. There was no evidence led that this occurred. I reject the defendants’ submission that it would be odd to distinguish services performed for the plaintiff’s husband’s business under a return-to-work program instigated by WorkCover from services performed for Deutsche Bank. I reject the defendants’ submission that while working for her husband, the plaintiff worked for a “participating employer” and reject the allied submission that by working for her husband at the behest of WorkCover the plaintiff failed to satisfy the six month waiting period.

Issue 3: whether the plaintiff failed to satisfy the policy’s six month waiting period condition because her position became redundant

  1. [179]
    The more correct question is whether the plaintiff failed to satisfy the condition because she did not prove that her continuous absence from employment with her employer was “through injury or illness”.
  1. [180]
    On the redundancy argument, counsel for the defendants submitted:
  1. The plaintiff did not return to work with Deutsche Bank after 19 October 2009. That was not due to illness or injury;
  1. Her role in Deutsche Bank ceased in February 2010 after it was relocated to Singapore;
  1. She neither gave nor called any evidence that she was unable to continue in her position, in a more limited capacity;
  1. The redundancy is not evidence of the plaintiff’s incapacity to engage in the role which she was previously employed.
  1. [181]
    I am satisfied that the plaintiff was continuously absent from employment with her participating employer, Deutsche Australia Limited, from October 2009 for the six month waiting period required by the policy. That is not enough to satisfy the waiting period condition. Her absence must have been “through injury or illness”. I interpret “through” as being akin to “caused by”. It is not enough to satisfy the condition that the plaintiff be absent for 6 months while suffering an injury or illness. The absence must be “through” an injury or illness.
  1. [182]
    I am not satisfied that her absence from that employment after 28 February 2010 was “through injury or illness”. By 28 February 2010 the plaintiff ceased to be employed by Deutsche Australia Limited because her position with that employer was made redundant. The plaintiff’s counsel submitted that during the six months, the plaintiff was on WorkCover benefits and that her WorkCover claim had not been finalised. If the evidence supports that submission it does not answer the defendants’ argument.
  1. [183]
    The strength of the defendants’ argument is more easily understood if one begins with the hypothesis that the plaintiff was too ill to return to work in her former position for the six month waiting period, that there was only one employee’s position with Deutsche Australia Limited and that the position ceased to exist during the waiting period. On that hypothesis, the plaintiff’s absence from employment with Deutsche Australia Limited would be through the position’s ceasing to exist, not through her injury or illness. It would be different if Deutsche Australia had terminated the position because the plaintiff was ill. That has not been pleaded, alleged or proved. If there had been two positions with Deutsche Australia Limited, with the plaintiff occupying one and another employee occupying the other and the plaintiff’s position ceased to exist, the plaintiff’s absence from employment would be through her position’s ceasing to exist. If the second employee resigned within the six month waiting period, creating an unfilled position and if the employer declined to offer it to the plaintiff because of her injury, the plaintiff’s absence from employment would then commence to be through illness or injury.
  1. [184]
    I accept the submission that plaintiff neither gave nor called any evidence that she was unable to continue in her position with Deutsche Australia Limited, in a more limited capacity. That does not disadvantage the plaintiff’s claim. I infer from the medical reports of that time that she could not then have performed the long hours required of a person working in her former position and infer that she was not offered the ability to work shorter hours. The plaintiff led no evidence that there were other vacant positions with Deutsche Australia Limited that she could not accept due to injury or illness.
  1. [185]
    The policy made one of the conditions for entitlement to a TPD payment that the plaintiff’s continuous absence from employment with a participating employer be through injury or illness, not through termination due to redundancy even if illness continued after the termination. The redundancy did not inevitably mean that the plaintiff was disentitled to a TPD benefit after six months. If the plaintiff had established that there were other positions available to her (after the redundancy of her position) with a participating employer and that through injury or illness she could not accept those positions until after 26 April 2010, it is strongly arguable that she would have satisfied the condition that she was continuously absent from employment with a participating employer through injury or illness.
  1. [186]
    The plaintiff did not prove the existence of an unfilled position with a participating employer. I infer, on the balance of probabilities, that there was no such position available in Australia or elsewhere with Deutsche Australia Limited. I infer it because, after returning from long service leave in October 2009:
  1. the plaintiff was required to continue working the long days about which she had complained;
  1. the alternative positions offered to her were in Hong Kong and Singapore;
  1. the offer of alternate positions was made by Deutsche Bank AG rather than by Deutsche Australia Limited.
  1. [187]
    One cause of the plaintiff’s absence from employment with a participating employer on and after 28 February 2010 was the termination of her employment due to redundancy. That is to say, the position stopped being available. The plaintiff has not satisfied her onus of proof that after 28 February 2010 her absence from employment was also caused through the injury or illness which she was then suffering. It was a regrettable coincident fact that from 1 March 2010 the plaintiff was suffering an injury or illness which probably would have prevented her working in her former position until the end of the waiting period. But that injury or illness was not proved to be the cause of her absence from employment with Deutsche Australia Limited. Termination of employment due to her position’s redundancy was the only cause established for the plaintiff’s absence from employment with a participation employer after 28 February 2010.
  1. [188]
    I find that the plaintiff failed to satisfy the waiting period condition of the policy. The insurer appears to have omitted that point from its reasons for rejecting the plaintiff’s claim for TPD. That omission is not relevant. I infer the insurer missed the point and formed no opinion or belief about the plaintiff’s satisfaction of the waiting period condition. The insurer’s obligation to pay was not conditional upon the insurer’s forming an opinion or belief about whether the plaintiff satisfied the waiting period condition.
  1. [189]
    It follows that the plaintiff has not established as against the insurer that she was entitled to a payment for TPD because her absence from employment failed to satisfy the policy’s waiting period condition. That is sufficient reason to refuse the plaintiff’s claim for a declaration against the insurer.

Issue 4: whether the insurer breached a duty to act reasonably in considering the plaintiff’s claim

  1. [190]
    The bases in the plaintiff’s submissions are that the insurer breached a duty to act reasonably by failing to:
  1. consider Dr Chalk’s report of 26 February 2013 stating that study is not the same as work and that the plaintiff may have difficulty in obtaining or sustaining full time work;
  1. consider Dr Stringer’s report of 14 July 2013 that the plaintiff could not return to full time work;
  1. consider submissions from the plaintiff’s solicitors dated 31 May 2013;
  1. consider the plaintiff’s precis of evidence about her symptoms and studies;
  1. obtain “the report of Dr Cai a rheumatologist who had provided a report stating that the plaintiff had fibromyalgia”;
  1. provide reasons for preferring a report of Dr Vecchio to a report of Dr Zurauskas;
  1. express in its reasons that an ability to perform part-time remunerative work would not affect the plaintiff’s entitlement to a TPD benefit;
  1. consider the proposition that the plaintiff’s fluctuating symptoms made her unemployable even if she intermittently had capacity to work, and failing to make that finding.
  1. [191]
    I have distilled from pleadings and the written and oral submissions for the plaintiff that the eight matters above are the sub-issues raised for the plaintiff to demonstrate the insurer’s breach of a duty.

Duty of the insurer

  1. [192]
    The principles applying when an insurer considers a claim for TPD were drawn together in Lazarevic v United Super Pty Ltd[129] and set out with approval by Bond J in Edington v Board of Trustees of the State Public Sector Superannuation Scheme[130]  in the following passage:
  1. (a)
    The insurer must consider, and determine, the correct question or questions.  This essentially requires the correct interpretation of the policy of insurance.
  1. (b)
    If the insurer seeks an opinion from an expert, it must provide the expert with all of the information that is relevant to the expert's opinion.
  1. (c)
    Where an expert opinion is sought, the expert must also be asked the right questions.
  1. (d)
    Asking the right questions of the expert, however, does not require the insurer to ask the expert to address specific provisions in the policy. The insurer is itself making the ultimate decision, and not delegating the decision making to the expert.  The critical enquiry for the court is whether the insurer, ultimately, has addressed the correct questions either directly, or indirectly with the aid of the expert's opinion, and has taken account of the relevant information either directly, or indirectly, in respect of relevant information assessed by the expert.
  1. (e)
    The insurer is under a duty to act in good faith and to observe fair dealing in respect of both the trustee and the insured.
  1. (f)
    As part of this duty, the insurer must have due regard for the interests of the insured. However, this duty is contractual, not fiduciary. This duty is analogous to the duty of a mortgagee exercising a power of sale of mortgage property.
  1. (g)
    Where a state of affairs governing entitlement of the insured to a benefit is to be determined after a consideration by the insurer, the insurer must act reasonably in considering the matter and in coming to its conclusion.
  1. (h)
    If the view taken by the insurer can be shown to have been unreasonable on the material before it, the insurer's decision can be successfully attacked.
  1. (i)
    If the insurer's decision is successfully attacked, the matter upon which its opinion was required becomes one for determination by the court.
  1. [193]
    The plaintiff relied upon that passage as setting out the insurer’s obligations but added a reference to Ziogos v FSS Trustee Corporation  per Ball J[131]. From Ziogos the plaintiff relevantly emphasised the finding at [75] that the insurer had a duty to provide reasons.  
  1. [194]
    The plaintiff’s counsel pleaded that the insurer owed the plaintiff eight duties[132]but in submissions[133]narrowed the relevant as duties to five, being duties to:
  1. pose and answer the correct question;
  1. carry out the relevant inquiries;
  1. consider relevant material;
  1. not misstate the material before it;
  1. provide reasons which identify the reasoning.
  1. [195]
    Curiously, counsel’s list, by paraphrasing what was set out in the authorities he cited has altered the duties. Duties numbered 4 and 5 are not expressly drawn from Edington and were not pleaded among the 8 duties alleged to have been owed by the insurer to the plaintiff.[134]No authority is cited for duty number 4. Alleged duty number 5 is different from the duty identified by Ball J in Ziogos. Even alleged duty number 1 differs from the duty referred to by Bond J in the sense that the way plaintiff’s counsel describes it suggests that there is a duty to set out in reasons the question to be answered in addition to the duty to consider and determine it. The plaintiff’s counsel did not submit that the insurer was obliged to set out the proper question in its reasons or submit that the omission of the proper question from reasons was a breach of duty.
  1. [196]
    The proper question which the insurer was to consider was fundamentally different from the proper question for which the plaintiff’s counsel contended. Plaintiff’s counsel submitted in effect that the proper question was whether by reason of illness or injury the plaintiff has no real chance of returning to relevant fulltime work. I rejected that for reasons given in respect of issue 1. The plaintiff’s ability to return to part-time work or casual or other work of an intermittent nature would disentitle her to the TPD benefit, so long as such work was “for reward in, any occupation or work for which… she is reasonably qualified by education, training or experience”. Notwithstanding that this cornerstone premise for the plaintiff’s case is decided against the plaintiff, the plaintiff’s counsel submits that his other submissions remain applicable on this more difficult premise. The plaintiff’s counsel’s argument was to the effect that on the evidence which should have been considered by any relevant entity, be it the defendants or the court, the defendants should have concluded and the court should conclude that by reason of illness or injury there is no real chance that the plaintiff will return to remunerative relevant work of a part-time or casual or an intermittent nature.
  1. [197]
    The plaintiff’s counsel pleaded 28 particulars of the insurer’s breach of duty but in submissions grouped the breaches into 5 categories being breaches of the five numbered duties set out above.[135]
  1. [198]
    The plaintiff’s counsel’s written “Submissions on behalf of the plaintiff” appear to have analysed the insurer’s breaches of duty from paragraphs 74 to 88. Those paragraphs of the submissions regularly and mistakenly used the words “first defendant” (the trustee) when it seems that the words “second defendant” (the insurer) were intended. I proceed on that assumption. The plaintiff’s counsel submitted, in effect, that the insurer was in error:
  1. if the consideration of university study was the reason for finding that the plaintiff’s symptoms failed to prevent her working, for “failing to provide adequate reasons how it came to that conclusion (paragraph 57(a))”;
  1. failing to consider relevant evidence on the issue being (a) Dr Chalk’s report of 26 February 2013 stating that study is not the same as work and that the plaintiff may have difficulty in obtaining or sustaining full time work, (b) Dr Stringer’s report of 14 July 2013 that the plaintiff could not return to full time work, (c) the submissions from the plaintiff’s solicitors dated 31 May 2013, (d) the plaintiff’s precis of evidence about her symptoms and studies (Ex 1 p 228);
  1. placing too much weight on the studies;
  1. coming to the wrong conclusion if it considered that study amounted to capacity to work;
  1. failing to “resolve the apparent conflict between the specialists themselves whether there was an overlap between the plaintiff’s physical and mental condition” and thus combining “the physical and emotional symptoms rather than keeping them separate”;
  1. failing to obtain “the report of Dr Cai a rheumatologist… stating that the plaintiff had fibromyalgia”;
  1. preferring the opinion of Dr Vecchio (to a report from the Cairns Base hospital of Dr Zurauskas, (Ex 1 p 104) indicating fibromyalgia) without providing any reasons for that choice;
  1. failing to pose as the correct question, whether the plaintiff can obtain and retain full time work as opposed to part time work;[136]
  1. placing undue weight on the employability assessments without considering adequately that “the employability assessments did not take into account that the plaintiff had fluctuating symptoms and how the plaintiff would cope with such duties when at work and how the employer would cope with the plaintiff not turning up to work due to symptoms” but that the employability assessments “purely focused on the plaintiff’s physical capacity to carry out the tasks of the jobs identified”.
  1. [199]
    The plaintiff’s counsel emphasised alleged error 2 of 9 in his oral submissions as being the easiest or most obvious error to establish, because the insurer did not refer to those four documents and “worse than that, they (the insurer) refer to previous ones and they (the insurer) summarise the previous ones”.[137]That submission seems to imply several things: that the four documents were relevant, that it was a breach of duty to fail to consider them, that the insurer acting reasonably should then have determined that the 4 documents materially altered the factual premises derived from earlier reports and it should have concluded with the benefit of the matters raised in the four documents that the plaintiff was TPD.
  1. [200]
    The plaintiff’s argument that the insurer failed to consider the four documents is based solely upon the omission of the four documents from the list of eight referred to in the claim summary dated 4 December 2013.
  1. [201]
    I accept that a failure to consider the four documents would have been a breach of the duty to consider all relevant material. The defendants did not submit otherwise. The next issue is whether the insurer failed to consider them.
  1. [202]
    The insurer wrote to the Mercer Retirement Trust on 4 December 2013. I infer that it was an agent for the trustee. The letter enclosed a “TPD FINAL CLAIM SUMMARY DATED 03/12/2013” (claim summary). The claim summary has been treated by both counsel as if it is the insurer’s reasons. The claim summary advised that:

When considering the claim, all the evidence available (medical and non-medical) was considered and applied to the terms and conditions on the policy.

The following comments are AMP’s view of the evidence received. When considering the claim, the trustees should read all the available evidence in its entirety in conjunction with this summary.

The following reports in the table below were reviewed and assessed during the claim assessment. We refer you to the final column whereby we have provided an opinion with regards to whether or not each report supports the member's claim for Total and Permanent Disability (TPD):

Date of Report

Report Received From

Specialty

Supports TPD?

14/12/2009

Dr Stringer

General Practitioner

Neither

01/03/2010

Dr Chalk

Psychiatrist

Neither

15/03/2010

Dr Stringer

General Practitioner

Neither

20/05/2010

Medical Tribunal

Medical Assessment

No

29/09/2011

Dr Stringer

General Practitioner

No

28/11/2011

Dr Gundabawady

Psychiatrist

No

21/02/2012

Dr Vecchio

Rheumatologist

No

24/12/2012

Dr Chalk

General Practitioner

No

  1. [203]
    Consistency would have called for the inclusion of the omitted medical reports of Dr Chalk of 26 February 2013 and Dr Stringer of 14 July 2013. But it would have called for the inclusion of other documents too.
  1. [204]
    When looking at the list of eight reports appearing in the claim summary provided on 4 December 2013 by the insurer to the trustee[138]one sees that the insurer omitted reference to two medical practitioner’s reports prepared in 2013, being the two latest in time.  I refer to Dr Chalk’s report of 26 February 2013 and Dr Stringer’s of 14 July 2013. 
  1. [205]
    Despite the omission of those two reports from the insurer’s list of eight documents, it is probable that the insurer considered and found persuasive some of Dr Chalk’s unlisted report. Within the claim summary the author wrote[139]of the plaintiff’s “competence in her concentration, attention to detail, motivation and endurance”.  Those words were identical with Dr Chalk’s words appearing in the report of Dr Chalk of 26 February 2013 where the doctor expressed the opinion that “the ability to study and to achieve with a degree of proficiency does suggest a degree of competence in her concentration, attention to detail, motivation and endurance.”[140]That leads me to infer that despite of the omission of Dr Chalk’s report from the list, it was considered by the insurer.
  1. [206]
    Further confirmation of this conclusion appears in earlier correspondence. The reports of Dr Stringer of 14 July 2013 and of Dr Chalk of 26 February 2013 were each referred to by the insurer in its letter dated 10 September 2013 to the plaintiff’s solicitors. The letter’s relevant parts are set out in the chronological facts above. I infer that the two reports were considered by the insurer, at least on or before 10 September 2013. A scan by Dr Tan was referred to in the same letter. Relevant documents other than medical reports were specifically mentioned by the insurer in prior correspondence and in such a way as to suggest that they had been considered. One sees it in the letters in the chronological facts at 25 July 2012 and 10 September 2013.
  1. [207]
    The process of complying with the duty to consider all relevant material may be fulfilled by the insurer over a period of time.
  1. [208]
    The claim summary sent by the insurer to the trustee was not written with the precision one expects from a judgment. The letter did not advise the trustee that the eight listed medical reports were the only medical practitioners’ opinions which had been considered. I infer that the documents in the list of eight, were not the only pieces of evidence considered. That conclusion is consistent with the insurer’s assertion that “When considering the claim, all the evidence available (medical and non-medical) was considered” and the recommendation to the trustee that “When considering the claim, the trustees should read all the available evidence in its entirety in conjunction with this summary”.
  1. [209]
    I am not satisfied that the insurer failed to consider the report of Dr Chalk dated 23 February 2013 or the report of Dr Springer dated 14 July 2013.
  1. [210]
    The plaintiff also submitted that the insurer failed to consider two other documents which the insurer had available to it and which it had received, namely the submissions from the plaintiff’s solicitors letter dated 31 May 2013 and the plaintiff’s precis of evidence about her symptoms and studies forwarded under cover of that letter of submissions. The only basis for the submission that the insurer failed to consider the documents is their absence from the list of eight reports authored by medical practitioners. It seems possible, though unlikely, that the insurer would have failed to consider material forwarded to it by the plaintiff’s solicitors. Counsel for the plaintiff submitted inconsistently with that conclusion that this[141]correspondence put the insurer on notice of its contents. They were different in kind from the other eight documents in the list as these two were not opinions of medical practitioners. There was considerable evidence available to the insurer for consideration, occupying more than 100 pages of exhibit 1 which was not added to the list of “reports”.
  1. [211]
    It is probable that the insurer considered the plaintiff’s solicitor’s letter dated 31 May 2013 and the plaintiff’s precis of evidence.
  1. [212]
    A means of checking these conclusions is to consider whether the material contained in the four documents raised a relevant new premise not contained in the other evidence. If any of the four did contain a new premise and if the insurer made no reference to the new premise, it would support the plaintiff’s submission that the four documents were not considered.
  1. [213]
    The plaintiff identified what was submitted to be the relevant evidence:[142]
  1. Dr Chalk’s report of 26 February 2013 stating that study is not the same as work and that the plaintiff may have difficulty in obtaining or sustaining full time work … (paragraph 57(r));
  1. Dr Stringer’s report of 14 July 2013 that the plaintiff could not return to full time work;
  1. the submissions from the plaintiff’s solicitors dated 31 May 201;
  1. the plaintiff’s precis of evidence about her symptoms and studies.
  1. [214]
    One sees that the plaintiff’s counsel expressly identified only three allegedly relevant matters. Is any one of the three a new premise for the insurer’s consideration?
  1. [215]
    The opinion of Dr Chalk as paraphrased by counsel for the plaintiff is “study is not the same as work”. That paraphrasing suggests that the opinion favoured the plaintiff for implying that the ability to study is not evidence of the ability to work. The opinion was actually expressed differently: The ability to study Law does not equate to the ability to work but it certainly does equate in my view, to the ability to undertake regular activity of a work-like nature. That opinion is not favourable to the plaintiff, is obvious, is consistent with other material considered by the insurer, does not require psychiatric expertise and does not provide a new premise. The opinion of Dr Chalk as paraphrased by counsel for the plaintiff as “the plaintiff may have difficulty in obtaining or sustaining full time work” was entirely consistent with opinions expressed by Dr Stringer in 2011 and included in the list of 8 documents. But Dr Chalk opined something materially different from counsel’s paraphrase: Her symptoms may well make it difficult for her to obtain full time work though my clinical experience has…been that symptoms of this type and intensity are not inconsistent with the ability to undertake some form of remunerative employment. It was not a new premise. It was consistent with other opinions previously expressed. The report of Dr Stringer that the plaintiff could not return to fulltime work was entirely consistent with her opinions expressed in her reports of 15 March and 25 September 2011. It was not a new premise.
  1. [216]
    The written reasons of an insurer are not expected to be comparable to a court’s. The claim summary by the insurer appears to have been written for the edification of the trustee, even if the insurer could foresee that the plaintiff would also receive a copy. The insurer omitted to detail a significant number of documents which it was the insurer’s duty to consider and some of which had been specifically mentioned in the insurer’s prior correspondence indicating that they had been considered. The insurer’s omission from its list of the four documents identified by the plaintiff’s counsel does not satisfy me that the insurer failed to consider them.
  1. [217]
    The plaintiff fails to satisfy her onus that there was a breach of duty by failure to consider the four documents.
  1. [218]
    The plaintiff’s argument that the insurer breached a duty to carry out relevant inquiries seems to have been confined to one matter.[143]It is submitted that the insurer should have obtained the report of Dr Cai. I infer that counsel refers to the report of 25 March 2010, exhibit 16. It was submitted that the report of Cai stated that the plaintiff had fibromyalgia.  Those submissions are a misleading oversimplification. 
  1. [219]
    The insurer had available to it an extract of that report by Dr Cai and the extract did not mention fibromyalgia. The report is analysed above and one sees that fibromyalgia was mentioned rather than diagnosed and that the Doctor’s opinion was that the prognosis “should be good”.
  1. [220]
    There were three reports of Dr Cai dated 7 and 11 January and 25 March 2010.[144]The reports are analysed above in the chronological facts section when considering the reasons for decision given on 6 October 2010 by Q-COMP.  The secondary evidence which the insurer had of Dr Cai’s opinion is set out there.  The extract of Dr Cai’s report in Q-Comp’s reasons did not contain the word “fibromyalgia”.  The three reports of Dr Cai referred to fibromyalgia but a proper reading of them leads to the conclusion that in March 2010 Dr Cai believed there were symptoms “suggestive of fibromyalgia” among a number of musculoskeletal problems the plaintiff was suffering and that with appropriate treatment and rehabilitation the plaintiff’s prognosis “should be good”. Thus, if the insurer had pursued Dr Cai for the three reports from 2010, they would have been damaging to the plaintiff’s claim. But the question of whether an insurer breached its duty to carry out proper investigations should not be answered by a finding that the investigation would have unearthed nothing of benefit to the plaintiff. That merely reveals that if there had been a breach, it would have been a breach without consequence. The issue is whether the insurer performed its duty to carry out relevant inquiries. Counsel did not suggest what test should be used when measuring an insurer’s conduct.
  1. [221]
    I will measure the insurer’s conduct against the standard of a reasonable insurer bound by those duties extracted above from Edington case. The extract of Dr Cai’s report which the insurer could read in Q-COMP’s reasons was not to be considered in isolation. It was part of a larger body of material including significantly later reports of Doctors Chalk, Gundabawady and Vecchio which were strong evidence of the plaintiff’s capacity to return to work part-time.
  1. [222]
    The plaintiff’s argument assumes that the report of Dr Cai would have brought to the attention of the insurer that fibromyalgia was the plaintiff’s condition. That is not the effect of Dr Cai’s report. In any event, numerous reports raised the possibility of fibromyalgia for consideration. Dr Vecchio, in his report of 21 February 2012, advised on the premise that Dr Cai and another rheumatologist in early 2010 had received from the plaintiff reports of early morning stiffness, buttock discomfort, poor sleep and that these were consistent with fibromyalgia syndrome. Dr Vecchio is a rheumatologist and a person whose speciality involves diagnosis and treatment of fibromyalgia. The plaintiff’s history of symptoms in 2009 and 2010, consistent with fibromyalgia, was available for consideration. Dr Stringer wrote of it in her documents dated 11 February 2010, 27 April 2010, 15 March 2011 and 16 December 2011. Dr Zurauskas wrote of it in the report of 18 August 2010.
  1. [223]
    In that context, I am not satisfied that a reasonable insurer should have followed a train of inquiry with Dr Cai. I reject the submission that the insurer in late 2013 should have sought a report from Dr Cai. The plaintiff fails to satisfy her onus that there was a breach of duty by failure to call for and consider a report by Dr Cai.
  1. [224]
    If it was a breach for the insurer to fail to seek the three reports of Dr Cai, it was a breach without any material consequence. Those dated reports by Dr Cai were consistent with a good prognosis for return to relevant work. It would be a breach which would not have warranted a declaration of the insurer’s liability to pay.
  1. [225]
    The plaintiff’s submissions also grouped into the section related to breach of duty some criticisms of the insurer’s preferences for evidence. When it comes to criticising the insurer for preferring the evidence of incapacity to work, the task for the plaintiff is more difficult. If the view taken by an insurer was unreasonable on the material before it, the insurer’s decision can be successfully attacked (the first stage of the inquiry), leaving the decision as one for determination by the court (the second stage of the inquiry). Proof that the insurer’s view was unreasonable is very difficult. The plaintiff’s counsel did not contend otherwise but may have attempted to do just that with his next two submissions.
  1. [226]
    Counsel for the plaintiff submitted that it was a breach of duty by the insurer to prefer the opinion of Dr Vecchio to the opinion of Dr Zurauskas indicating fibromyalgia without giving reasons.[145]
  1. [227]
    The submission is based on three false premises that:
  1. The evidence established that the plaintiff was suffering fibromyalgia on the date when Dr Vecchio examined her;
  1. the insurer found that she had never suffered fibromyalgia;
  1. the insurer made a finding that the plaintiff was not suffering fibromyalgia when it declined her claim.
  1. [228]
    It was not necessary for the insurer to first form an opinion about whether the plaintiff had suffered or was suffering from fibromyalgia to determine whether she satisfied the definition of TPD. Whether the plaintiff’s symptoms are physical or psychiatric in origin, it is the symptoms’ severity and frequency and the plaintiff’s ability to function in spite of them or to ameliorate her symptoms which affects her capacity to work. Further, there was no need for the insurer to determine whether to prefer the opinion of Dr Vecchio to the opinion of Dr Zurauskas. One opinion does not contradict the other. The opinion of Dr Zurauskas, given on the basis of his examination in August 2010, did not suggest that the plaintiff was incapacitated for relevant work. The opinion of Dr Vecchio given on the basis of his examination on 21 February 2012 differed from the opinion of Dr Zurauskas in one superficial and irrelevant way: Dr Vecchio was unable to verify the fibromyalgia which Dr Zurauskas had diagnosed 16 months before. His report did not dispute that fibromyalgia may have been an accurate diagnosis at an earlier date. His report explained that fibromyalgia is not necessarily permanent but may be phasic. On the evidence available to the insurer it would have been inconsistent with the most recent rheumatologist’s opinion (Dr Vecchio’s) to have determined that the plaintiff was suffering fibromyalgia on 21 February 2012. It was not unreasonable to refrain from making a finding about its existence on 4 December 2013 when considering whether to reject the plaintiff’s claim. I do not accept that the insurer breached a duty by failing to:
  1. find that the plaintiff suffers fibromyalgia;
  1. provide reasons for explaining why the 2010 report of Dr Zurauskas did not persuade it to reject the 2012 report of Dr Vecchio.
  1. [229]
    The plaintiff argued[146]that the employability assessments (referred to in the chronological facts at 20 June 2012 and 30 August 2013) “did not take into account that the plaintiff had fluctuating symptoms and how the plaintiff would cope with such duties when at work and how the employer would cope with the plaintiff not turning up to work due to symptoms”.  The plaintiff referred to the second amended statement of claim paragraph 57(o), (w) and (y).  It seems to be an argument that the insurer breached a duty by placing undue weight on the two reports by failing to consider whether and find that the plaintiff could not obtain or sustain a job because of her fluctuating symptoms.  Once it is appreciated that the plaintiff’s capacity to do relevant part-time and intermittent remunerative work was a disentitling capacity the plaintiff’s argument loses force.  There was ample evidence to support the contention that the plaintiff could perform part-time and intermittent work of a relevant kind.  It was not unreasonable for the insurer to rely upon the reports of Doctors Vecchio and Gundabawady and Chalk.  Their reports provided ample evidence which, if accepted, permitted the insurer to determine that the plaintiff had an ability to return to part-time work or casual or other work of an intermittent nature for reward in an occupation or work for which she was reasonably qualified by education, training or experience.
  1. [230]
    On issue 4, I reject the submissions that the insurer breached a duty to act reasonably when considering the plaintiff’s claim. That is further reason to refuse the plaintiff’s claim for a declaration against the insurer.

The Trustee’s obligations in the trust deeds

  1. [231]
    The parties’ counsel agree that for the issues arising in this proceeding concerning the Trustee’s obligations the relevant extract of the Mercer Master Fund Consolidated Master Deed and Consolidated designated rules of the Mercer Corporate Superannuation Division follow. I have shaded only those words which appear to me to be relevant to the issues:

Consolidated Master Deed

13. BENEFITS AND WITHDRAWALS: the Trustee will pay a Member's benefits, or make payment in respect of a withdrawal from a Member Account, by way of redemption and cancellation of Units in accordance with the Rules. Any such payment, whether to the relevant Member or to another person believed by the Trustee in good faith to be entitled to receive it will be a complete discharge of the Trustee's obligations in respect of that payment. A payment may be made other than as cash or its equivalent, but only with the consent of the recipient and subject to Superannuation Law. These payments will be valued in accordance with clause 11. The amount of the payment is debited, and Units referrable to the relevant Portfolio are redeemed and cancelled, on amounts being paid, or consideration being transferred, to or in respect of the relevant Member.

Consolidated Designated Rules of Mercer Corporate Superannuation Division

13.7 Amount and Form of Benefits

  1. (a)
    The Schedule for each Plan contains details of:
  1. (i)
    The events upon the occurrence of which a benefit is payable;
  1. (ii)
    The amount of, and method of calculating, the benefits under the Plan (but those amounts may not apply if, for example, there is a special arrangement in force or the benefit is reduced under rule 14); and
  1. (iii)
    Whether benefits are paid in pension form rather than as a lump sum.

Deutsche staff superannuation Plan Annexure

7. BENEFITS

7.1 ...

7.2  Upon a Member ceasing Employment due to the Member's death or Total and Permanent Disablement on or before attaining age 65 there shall be payable in respect of the Member a lump sum benefit equal to the sum of:

  1. (a)
    The Member's Member Account Balance; and
  1. (b)
    An Insured Amount.

8. INSURED AMOUNTS

8.1 The insured amount for a Member other than a Casual Member is the amount calculated according to the following formula:

Insured amount = RPV x IM

Where: RPV is the Remuneration Package Value of the Member at the date of death or Total and Permanent Disablement; and IM is the Insurance Multiple of the Member.

9. INSURANCE MULTIPLES

9.1 Subject to clauses 9.2 and 9.3, the Insurance Multiple of:

  1. (a)
    ...
  1. (b)
    Any other Member being:
  1. (i)
    A Member other than a Causal Member, will be 4; and
  1. (ii)
    A Causal Member, will be nil.
  1. [232]
    It is common ground that the plaintiff was a “Member” who ceased “Employment” before attaining age 65.
  1. [233]
    It was submitted by counsel for the defendants and conceded by counsel for the plaintiff during oral addresses[147]that the definition of “Total and Permanent Disablement” appearing at page 50 of the amended outline of the defendants is to be read with the material provisions governing the obligations of the Trustee.  The relevant further words are:

“1. Interpretation

1.1 Definitions

In these Designated Rules:

…

‘Total and Permanent Disablement’ of the member:

  1. (a)
    If there is a relevant policy of insurance in force – means disablement which the insurer determines qualified as permanent under that policy; or
  1. (b)
    if there is not a relevant policy of insurance in force – means disablement due to an illness or injury as a result of which:

…

  1. (ii)
    the Trustee determines (after considering any medical or other evidence the Trustee requires) the Member is sufficiently incapacitated to be unlikely ever to engage in any gainful employment for which the Member is reasonably qualified by education, training or experience.”

Issue 6: whether the plaintiff’s claim was given proper consideration by the trustee

  1. [234]
    The plaintiff’s counsel submitted against the trustee[148]that it had a duty to consider relevant information and make relevant inquiries and relied upon Edington[149]and that the trustee’s decision was so unreasonable that no reasonable trustee could make it. Reference to those sub-paragraphs of Edington shows that they are premised on a particular type of deed: “where the form of the deed was such as to condition the entitlement of the benefit on the formation of opinion by the trustee, together with a power in the trustee to take into account relevant information”. 
  1. [235]
    The obligation which is imposed upon the trustee in this proceeding is fundamentally different if, as here, there is a relevant policy of insurance in force. The existence of a relevant policy of insurance relieved the trustee of the requirement to come to its own opinion. One sees that from the deed’s definition of “Total and Permanent Disablement” that the trustee has no duty to form an opinion. The trustee’s duty to make a determination does not arise because of the insurance policy. The scheme for imposing duties upon the trustee’s duty was plain and logical. If there was a policy of insurance, the trustee defers to the insurer’s determination about whether the member is TPD. If there was no policy of insurance the trustee would determine whether the member is TPD.
  1. [236]
    The trustee in this proceeding was not required to consider relevant information and make relevant inquiries or to make a determination about whether the plaintiff is TPD.
  1. [237]
    That is sufficient reason to refuse the plaintiff’s claim for a declaration against the trustee.
  1. [238]
    It follows that the plaintiff fails in the first inquiry. The plaintiff has failed to establish that the defendants have or either of them has breached a duty to the plaintiff. If, contrary to my finding, the insurer had breached its duty, that breach would not be sufficient basis to require the insurer to pay the TPD benefit. The plaintiff would not overcome the problem (determined at Issue 3) that the plaintiff failed to satisfy the insurance policy’s condition that her continuous absence from employment with Deutsche Australia Limited for a six month waiting period was “through injury or illness” as her absence was from redundancy of her position.
  1. [239]
    In case I am wrong in respect of those findings it is appropriate to proceed to the second inquiry to determine whether the plaintiff is TPD.

Issue 7: is the plaintiff TPD?

  1. [240]
    The actual issue is whether the plaintiff has, with the benefit of further evidence, satisfied this court that she meets the policy description of TPD and is entitled to the benefit payable for being TPD.
  1. [241]
    I must consider whether the plaintiff is unlikely to ever engage in, or work for reward in, any occupation or work for which she is reasonably qualified by education, training or experience. If the plaintiff has a real chance of returning to part-time, or casual or other relevant work of an intermittent nature, she is not entitled to the benefit under the policy. A chance of returning to such work may be real, despite being less than a 50 per cent chance.
  1. [242]
    The plaintiff gave evidence. She advised that the post-employment work she has done for her husband’s business has included data entry, MYOB accounting and preparing some promotional leaflets. At the time of trial she continued to assist in that business for roughly one hour per week. The plaintiff completed her law degree in 2015. At university there were 13 lectures per semester. The lectures ran for two hours, comprised of two 50 minute portions with a break between them. Tutorials ran for 45 minutes. The plaintiff would drive herself to university in a van with a bed. Sometimes she would use that bed to rest between lectures. While a university student, she suffered headaches, neck aches and back pain. The plaintiff did not miss any examinations while a student. She selected law as a degree because she was depressed from boredom. The journey to university by van would take between 40 and 90 minutes. She set herself the goal of completing the degree by the age of 50. The plaintiff explained that the symptoms of poor concentration and low energy about which she complained to medical practitioners could be spaced out and would come in phases. She expressed the personal opinion that she could not work as an administrative assistant, receptionist or bank teller because she cannot predict when her symptoms will come. It was her evidence that when the symptoms arrive, they can remain for a fortnight and be present for half the time. The plaintiff explained, in effect, that an employee must commit to an employer and guarantee reliability and that her unpredictable symptoms made such commitment impossible. The plaintiff regarded the commitment she required for her three year university course as different because she was committing only to herself. During her university course, the plaintiff said that she was “hospitalised or had injections and so on for migraine and been put on a drip for dehydration.”
  1. [243]
    Mr Williams, the plaintiff’s husband, gave evidence. He generally corroborated the plaintiff’s evidence. At the time of trial, his estimate was that the plaintiff did about two hours of book-keeping work per week. The plaintiff shared in the common hectic domestic duties of a modern parent taking the children to singing, music and dancing lessons. The driving distances were considerable. He recalled the plaintiff to be the one who did the grocery shopping and the paying of bills. Mr Williams accepted that the plaintiff had not tried to apply herself to trying to work in a part-time job the way she applied herself towards her university course. That evidence, while stressed by counsel for the defendants, was not particularly controversial. It was a reasonable inference from the plaintiff’s own evidence that she had not attempted to obtain part-time work, other than in her husband’s business.
  1. [244]
    Dr Stringer’s evidence was supplemented orally and with a file note, Exhibit 9. Dr Stringer, a general practitioner, maintained her opinions previously expressed to the effect that working full-time and studying are different; that studying is something that can be done in one’s own time and that the plaintiff suffered fibromyalgia. It is relevant that she originally sought specialist advice to confirm her suspicion of fibromyalgia. Her evidence aligned with the plaintiff’s to the effect that study for one’s own benefit is different from work because an employee is under pressure to be productive and reliable and that would be challenging for the plaintiff because of her illness.
  1. [245]
    Dr Stringer’s further evidence did add that in February 2016 she believed the plaintiff had a 25 per cent chance of returning to regular part-time work in the future though not in February 2016. Dr Stringer’s further oral evidence revealed that, whilst she accepted that the plaintiff suffered impaired powers of concentration she absolutely accepted that the plaintiff might still have better powers of concentration than the average person and expressed the opinion that the plaintiff is a very intelligent woman. Dr Stringer expressed the further opinion that she could not give the plaintiff more than a possible 25 per cent chance of returning to full-time work. She regarded the academic achievement of obtaining second class honours in law as demonstrating that the plaintiff could concentrate for periods of the day but opined that it did not mean the plaintiff could concentrate long enough, consistently or reliably enough to hold down a job.
  1. [246]
    By reason of her education, training or experience the plaintiff was qualified to perform work of an administrative or clerical nature and some limited niche role in banking. It seems to me that the degree of concentration required for such roles is unlikely to be so great as that required for understanding and recalling the subjects required for a law degree. Dr Stringer did not seek to discriminate between the concentration required between occupations. In opining that the plaintiff might not be able to concentrate sufficiently to hold down work, Dr Stringer did not descend into an analysis of whether the plaintiff’s powers of concentration, if too unreliable for full-time work, might be sufficient for fewer days or hours per week than full-time employees.
  1. [247]
    Dr Chalk explained that the 10 per cent impairment assessed by the General Medical Assessment Tribunal – Psychiatric on 20 May 2010 is a mild impairment consistent with persistent symptoms which may not persist forever and which do not preclude a return to gainful employment. He opined that a full-time study load was inconsistent with significant difficulties with concentration or motivation and revealed a reasonably high level of application and a capacity to focus for significant periods of time and an ability to crystallise learned material. He considered that doing a law degree was consistent with being able to do administrative work, at least part-time. The fact that the plaintiff did an accelerated degree with the aim of completing it by the age of 50 suggested to Dr Chalk that the plaintiff’s depressive symptoms were not substantial and that she had a degree of determination and resilience. He accepted that it did not indicate amnesia, poor concentration or lack of motivation. He regarded the diagnosis of fibromyalgia symptoms as a contentious issue which, in the psychiatric realm, has been subsumed into somatoform disorder as a way of expressing physically a degree of emotional distress.
  1. [248]
    Dr Gundabawady distinguished laziness and lack of motivation. He did not regard the plaintiff as lazy. He remembered that the plaintiff told him she had looked into some jobs and was not interested in applying for them and was quite content with what she was doing. That led Dr Gundabawady to interpret that the plaintiff was not motivated to look for jobs.[150]That is not contentious. The plaintiff was not motivated to look for jobs other than in her husband’s business. That would be explained by the plaintiff as based on her inability to be a reliable employee.  He did not regard the plaintiff’s anxiety as incapacitating her from return to work.  It was his opinion as a psychiatrist that she had the ability to obtain and to retain employment.  He made it clear that symptoms suggestive of fibromyalgia were outside his area of expertise.
  1. [249]
    Dr Vecchio gave oral evidence that it was possible for patients with permanent symptoms of fibromyalgia to be prevented from working part-time or full-time. If Dr Vecchio could find no objective findings, he would not accept a patient’s subjective opinion that symptoms would prevent the patient from working part-time.  He concluded that on the day he examined the plaintiff there was no fibromyalgia.  He accepted that it was possible that because symptoms vary, fibromyalgia could have been present the day before and the day after his examination.  He does not rely on the tender points test.  He explained the two obvious propositions which require no expertise, that when a general practitioner sees a patient regularly the practitioner sees much more of the patient than specialists do and is in a good position to assess the patient and that a close relationship which develops makes it difficult for a general practitioner to disagree with a patient’s opinion that the patient is unable to work.  He agreed that the plaintiff’s symptoms were genuine.  He opined that the plaintiff’s condition could be a combination of psychiatric and physical symptoms including somatic expressions of psychological conditions presenting as physical symptoms.  It was his opinion that the plaintiff was capable of working, that she was engaging, bright and reasonable, that if she had fibromyalgia, its conditions would wax and wane, that some people with marked disabilities are still able to work and that the plaintiff was capable of working 20 hours per week.  In expressing that last opinion, Dr Vecchio was agreeing with a proposition put by the plaintiff’s counsel.  I do not interpret his answer as suggesting that he believed the plaintiff could not work more than 20 hours a week.  He did not venture an opinion on that.
  1. [250]
    Dr Stringer, the plaintiff and her husband each have significant reservations about the plaintiff’s ability to resume even part-time work. The plaintiff has not suggested that the symptoms she endured while attending lectures and tutorials, writing assignments and sitting for exams when working for her law degree are any worse since obtaining her degree. Because the plaintiff demonstrated tenacious resilience for three years in spite of those symptoms, it is likely that she can summon the same tenacious resilience if called upon to do part-time administrative work. That causes me to doubt the pessimism of the plaintiff, her husband and Dr Stringer. The plaintiff’s academic achievements make more credible the opinions of doctors Chalk, Gundawabady and Vecchio who each accept the plaintiff has an ability to handle part-time work, at least.
  1. [251]
    I am not satisfied that, as at 13 May 2016, the plaintiff was totally and permanently disabled within the meaning of those words in the policy because I am not satisfied that the plaintiff is incapacitated to such an extent as to render (her) unlikely to ever engage in, or work for reward in, any occupation or work for which… she is reasonably qualified by education, training or experience. This is because I am not satisfied that her incapacity deprives her of a real chance of working for reward in a clerical or administrative occupation on a basis which is part-time or casual or intermittent. To avoid creating doubt, I am not satisfied by the current evidence that the plaintiff’s symptoms deprive her of a real chance of doing clerical or administrative work part-time.

Conclusion

  1. [252]
    The plaintiff’s symptoms, though genuine and debilitating, do not entitle her to declarations, damages or an order against either defendant.

Footnotes

[1] T3-5 l 37.

[2] [2015] QSC 245 at [190].

[3] (2002) 2 Qd R 197.

[4] [2016] NSWCA 68 at [157]- [188].

[5] Amended Statement of Claim, para. 26; Defence, para. 1

[6] [2016] FCA 1591.

[7] See Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [47]-[40]

[8] Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [50]

[9] Submissions on behalf of the plaintiff par 88.

[10] T1-64, l 44 to 1-65, l 4.

[11] Ex. 1, pp 241-243.

[12] Exhibit 5; TAFE certificate

[13] T1-11 & 12

[14] T1-65, ll 45

[15] T1-12

[16] Ex 1 p 5.

[17] Rule 6.1(b)

[18] Amended Statement of Claim, paras 4-9; Defence, para 1. 

[19] Ex 1, p 65. 

[20] Ex 1, p 13 Workstation Assessment Report, under “Summary of Findings”; ex 1 p. 187: Report of Ms Battley dated 12 June 2012, under “Summary of the Insured, Occupation Title: Senior Administrator”. 

[21] Ex 1 pp 13-18.

[22] T1-13.

[23] T1-14 line 10.

[24] Report of Dr Gundabawardy, p 3 top paragraph; Statement from Plaintiff T1-68 l 25. 

[25] T1-12.

[26] Ex 1 pp 24-25.

[27] Ex 1 pp 22-26.

[28] Ex 1, p 26. 

[29] Ex 1, p 20. 

[30] T1-71, ll13.

[31] Ex 1 p 27; T1-72, ll22-24

[32] Ex 1, p 27 question 11

[33] Ex 1, p 19. 

[34] Ex 1, commencing p 19; T1-71, ll13

[35] Ex 1 p 19.

[36] Ex 1 pp 30-33.

[37] Ex 1 index p 2.

[38] Ex 1, p 31

[39] Ex 1, pp 37-40 Employer’s statement, question 12. 

[40] Ex 14.

[41] Ex 1, p 35: Letter from Dr Stringer to Dr Cai dated 14 December 2009. 

[42] Ex 15.

[43] Exhibit 1, p 51.

[44] Ex 1, p 117: Member’s statement, Pt C, question (c). 

[45] Ex 1 commencing p 52.

[46] Ex 1, p 52.

[47] Ex 1, p 43 Q-COMP reasons for decision.

[48] Ex 1, p 62.

[49] Ex 1, pp 64-73, report 1 March 2010.

[50] Ex 1 p 43. 

[51] Ex 12. 

[52] T2-53, ll 7-11.

[53] Ex 12: Termination Letter from Deutsche Bank dated 28 February 2010. 

[54] Ex 1, p 75: Letter from Dr Stringer to WorkCover dated 15 March 2010; T1-84, l23

[55] Ex 1 p 20.

[56] Ex 1 p 62.

[57] Ex 1 p 64

[58] Ex 1 p 75.

[59] Ex 1, p 86.

[60] T2-4, ln 30. 

[61] T2-4 ll 40-45; T2-5 ll 1-10. 

[62] Ex 1, p 97.

[63] Ex 1 p 43.

[64] T2-55, ll32, 33. 

[65] Ex 1 pp 103-104.

[66] Ex 1 commencing p. 43: Letter from Q Comp dated 6 October 2010. 

[67] Ex 1, pp 44-45. 

[68] Ex 1,  p 44

[69] A copy of Dr Cai’s report is exhibit 16.

[70] Ex 1, p 44. 

[71] Submissions on behaf of the plaintiff par 84.

[72] Ex 13.

[73] Ex. 1, p 105.

[74] Ex. 1, p 120.

[75] Amended Statement of Claim, para. 26; Defence, para 1. 

[76] Ex. 1, pp 124-127.

[77] Ex. 1, pp 130-135.

[78] Ex. 1, pp 132-135.

[79] Ex. 1, pp 137-138.

[80] Ex. 1, pp 145-147.

[81] Ex. 1, pp 156-164.

[82] T1-31 ln 9.

[83] Ex. 1, p 161, last line.

[84] T1-30, ln 26.

[85] T1-76 ln 3

[86] T1-76, l 15.

[87] Ex. 1, p 165.

[88] Ex. 1, pp 166-169.

[89] T1-88 ll7. 

[90] T1-33.

[91] Ex. 1, p 171.

[92] Ex. 1, pp 174-181.

[93] Ex 1 p 204.

[94] Ex. 1 p 205-215. 

[95] Ex. 1, pp 145-147.

[96] Ex 1 pp 216-219.

[97] Ex 1 p

[98] T1-41, l 40.

[99] Second Amended Statement of Claim par 53(d). 

[100] Further Amended Defence paragraph 1. 

[101] Ex. 1, p 222.

[102] Ex. 1, pp 64-73.

[103] T1-41, l 30.

[104] Ex. 1, p 225.

[105] Ex. 1, p 227.

[106] Ex 1 p 228.

[107] Ex. 1, p 230.

[108] Ex. 1, pp 231-238.

[109] Ex. 1, pp 241-243.

[110] Ex. 1, p 244.

[111] Ex. 5 and 6: She undertook 10 subjects in year 1, nine subjects in year 2 and seven in year 3. 

[112] Ex. 3. 

[113] T 1-91 ll 1-15. 

[114] Ex. 6. 

[115] Second Amended Statement of Claim par 54 and Further Amended Defence par 1.

[116] T1-87 l 27. 

[117] T1-91 l 23. 

[118] Ex. 3.

[119] T1-77, l 31.

[120] T1-9 line 38

[121] Submissions on behalf of the plaintiff pars 16-28.

[122] (1993) 7 ANZ Ins Cas 61-175.

[123] [2011] NSWCA 204, (2011) 282 ALR 167.

[124] [2013] NSWCA 57, per Bathurst CJ at [49] with whom MacFarlan, Meagher and Hoeben JJA and Tobias AJA agreed.

[125] [2016] NSWCA 68.

[126] Beazley P and Emmett AJA agreeing.

[127] T3-60

[128] Written outline defendants para 151 and footnote 248.

[129] [2014] NSWSC 96 at [101] by Hallen J.

[130] [2015] QSC 245 at [181].

[131] [2015] NSWSC 1385.

[132] 2ASoC par 41.

[133] Submissions on behalf of the plaintiff par 74.

[134] 2ASoC par 41.

[135] Submissions on behalf of the plaintiff pars 75 and 74.

[136] Submissions on behalf of the plaintiff par 86.

[137] T3-56.

[138] Ex 1 pg 245-251 at 247 and 248 and in the chronology above at 4 December 2013.

[139] Ex 1, p 251, first paragraph.

[140] Ex 1, pp 217-218.

[141] T1-41, l 30

[142] Submissions on behalf of the plaintiff par 79 (b).

[143] Submissions on behalf of the plaintiff, paragraph 84.

[144] Exhibits 14, 15 and 16.

[145] Submissions on behalf of the plaintiff, paragraph 85. 

[146] Submissions on behalf of the plaintiff par 88.

[147] T3-8 and T3-9.

[148] Submissions on behalf of the plaintiff, paragraph 89. 

[149] Op. cit at [48](c) and (d).

[150] T2-64, ll 1-6.

Close

Editorial Notes

  • Published Case Name:

    Williams v Mercer Superannuation (Australia) Limited & Ors

  • Shortened Case Name:

    Williams v Mercer Superannuation (Australia) Limited

  • MNC:

    [2017] QDC 289

  • Court:

    QDC

  • Judge(s):

    Andrews DCJ

  • Date:

    01 Dec 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australasia Ltd v Dargan [2013] NSWCA 57
2 citations
Jump To
Cite 1 - [2013] NSWCA 57
Cite 2 - [2013] NSWCA 57
Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175
2 citations
Jump To
Cite 1 - (1993) 7 ANZ Ins Cas 61-175
Cite 2 - (1993) 7 ANZ Ins Cas 61-175
Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2015] QSC 245
3 citations
Jump To
Cite 1 - [2015] QSC 245
Cite 2 - [2015] QSC 245
Cite 3 - [2015] QSC 245
Lazarevic v United Super Pty Ltd [2014] NSWSC 96
1 citation
Jump To
Cite 1 - [2014] NSWSC 96
Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204
1 citation
Jump To
Cite 1 - [2011] NSWCA 204
Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd (2011) 282 ALR 167
2 citations
Jump To
Cite 1 - (2011) 282 ALR 167
Cite 2 - (2011) 282 ALR 167
McArthur v Mercantile Mutual Life Ins Co Ltd[2002] 2 Qd R 197; [2001] QCA 317
2 citations
Jump To
Cite 1 - [2002] 2 Qd R 197
Cite 2 - [2002] 2 Qd R 197
National Mutual Life Association of Australasia Limited, the application of National Mutual Life Association of Australasia Limited and AMP Life Limited (No 2) [2016] FCA 1591
1 citation
Jump To
Cite 1 - [2016] FCA 1591
Shuetrim v FSS Trustee Corporation [2015] NSWSC 464
2 citations
Jump To
Cite 1 - [2015] NSWSC 464
Cite 2 - [2015] NSWSC 464
TAL Life Ltd v Shuetrim (2016) NSWCA 68
3 citations
Jump To
Cite 1 - (2016) NSWCA 68
Cite 2 - (2016) NSWCA 68
Cite 3 - (2016) NSWCA 68
Ziogos v FSS Trustee Corporation [2015] NSWSC 1385
2 citations
Jump To
Cite 1 - [2015] NSWSC 1385
Cite 2 - [2015] NSWSC 1385

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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