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 Facts
Issues
The claim
Findings requested by the defendants
Two inquiries with two rules for admissibility of evidence
The onus of proof
The chronological facts
The Trust Deed and the Insurance Policy
The Insurer’s Obligations as contained in the policy documents
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
The correct question for the insurer
Issue 2: whether the plaintiff fails to satisfy the policy’s six month waiting period condition because she worked for her husband
Issue 3: whether the plaintiff failed to satisfy the policy’s six month waiting period condition because her position became redundant
Issue 4: whether the insurer breached a duty to act reasonably in considering the plaintiff’s claim
Duty of the insurer
The Trustee’s obligations in the trust deeds
Issue 6: whether the plaintiff’s claim was given proper consideration by the trustee
Issue 7: is the plaintiff TPD?
Conclusion
Background Facts
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Counsel resolved between themselves many of the issues in the pleadings. The contentious issues emerged in addresses. They are assembled below.
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)
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.)
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.)
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;
2. consider Dr Stringer’s report of 14 July 2013 that the plaintiff could not return to full time work;
3. consider submissions from the plaintiff’s solicitors dated 31 May 2013;
4. consider the plaintiff’s precis of evidence about her symptoms and studies;
5. obtain “the report of Dr Cai a rheumatologist who had provided a report stating that the plaintiff had fibromyalgia”;
6. provide reasons for preferring a report of Dr Vecchio to a report of Dr Zurauskas;
7. express in its reasons that an ability to perform part-time remunerative work would not affect the plaintiff’s entitlement to a TPD benefit;
8. 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.
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]T3-5 l 37.
[2][2015] QSC 245 at [190].
[3](2002) 2 Qd R 197.
[4][2016] NSWCA 68 at [157]- [188].
Issue 6 is whether the plaintiff’s claim was given proper consideration by the trustee.
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.
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.)
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.)
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
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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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).
It is common ground that the amount of the TPD benefit, if payable, is $436,800 (being 4 times the plaintiff’s salary).[5]
[5]Amended Statement of Claim, para. 26; Defence, para. 1
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.
[6][2016] FCA 1591.
Findings requested by the defendants
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.)
2. “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.)
3. “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.)
4. “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.)
5. “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
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.
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.
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.
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.
Each document in exhibit 1:
1. is relevant to the first inquiry;
2. was available to the insurer and the trustee for consideration when they made their decisions.
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.
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.
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
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
2. that she was TPD at the relevant time.
[7]See Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [47]-[40]
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]
[8]Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [50]
[9]Submissions on behalf of the plaintiff par 88.
The chronological facts
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.
The plaintiff finished school in Grade 11, which I assume to have been when she turned 16 in November 1982.
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.
[10]T1-64, l 44 to 1-65, l 4.
[11]Ex. 1, pp 241-243.
In 1991, aged about 27, the plaintiff obtained a Certificate in Personal and Industrial Relations.[12]
[12]Exhibit 5; TAFE certificate
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.
[13]T1-11 & 12
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.
[14]T1-65, ll 45
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.
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]
[15]T1-12
The plaintiff’s proposed position with Deutsche Australia Limited and her duties were described[16] on 29 June 1999 by Deutsche Bank AG:
[16]Ex 1 p 5.
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:
(a) 5 days paid sick leave for the first year of service; and
(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…
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]
[17]Rule 6.1(b)
[18]Amended Statement of Claim, paras 4-9; Defence, para 1.
From about 2006, the plaintiff, aged about 42, worked for Deutsche Australia Limited from her residence at 9 Bower Close Port Douglas.[19]
[19]Ex 1, p 65.
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.
[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”.
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…
[21]Ex 1 pp 13-18.
[22]T1-13.
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.
In about 2006, the plaintiff became subject to a new manager, Rose Chong. In 2006 the plaintiff was hospitalised in Cairns for migraine.
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.
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.
[23]T1-14 line 10.
In 2007 the plaintiff did her last travel for work. It was a trip to Tokyo.
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 ...
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.
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.
[24]Report of Dr Gundabawardy, p 3 top paragraph; Statement from Plaintiff T1-68 l 25.
[25]T1-12.
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.
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.
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.
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.
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]
[26]Ex 1 pp 24-25.
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.
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]
[27]Ex 1 pp 22-26.
[28]Ex 1, p 26.
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:
[29]Ex 1, p 20.
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.
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.
[30]T1-71, ll13.
As at 20 October 2009 the plaintiff's education, training and experience included the following:
(a)1980: Year 11 at Taperoo High School in Adelaide;
(b)1980-1983: Office clerk/secretary at Elecmet (a fabrication company);
(c)1983-1985: Office clerk/secretary at JE Whites (a real estate firm);
(d)1986-1990: Temporary secretarial work in Australia;
(e)1990-1991: Bookkeeper at Sterling Property (London);
(f)1991: Certificate in Personnel and Industrial Relations from Adelaide College of TAFE;
(g)1992: Bar work in London (2 nights per week over 2 months);
(h)1992: Temporary secretarial work in London for 6 months;
(i)Jan 1993-Dec 1993: data entry at Australian Submarine Corporation in Adelaide;
(j)1994: temporary secretarial work at Bankers Trust in London;
(k)1994-1998: “software specialist” at Banker's Trust;
(l)1998-2009: “software specialist” at Deutsche Bank.
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.
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.
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]
[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 p19.
1. Excessive/unreasonable expectations and working hours
2. Unreasonable treatment and bullying in the workplace
3. 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.
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]
[36]Ex 1 pp 30-33.
[37]Ex 1 index p 2.
[38]Ex 1, p 31
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.
[39]Ex 1, pp 37-40 Employer’s statement, question 12.
[40]Ex 14.
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…
[41]Ex 1, p 35: Letter from Dr Stringer to Dr Cai dated 14 December 2009.
On 7 January 2010 a body scan showed “mild” bilateral sacroiliitis.[42]
[42]Ex 15.
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]
[43]Exhibit 1, p 51.
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”.
On 9 February 2010 Dr Skinner approved a WorkCover back-to-work plan for the plaintiff with a review anticipated for 24 March 2010.
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.
[44]Ex 1, p 117: Member’s statement, Pt C, question (c).
[45]Ex 1 commencing p 52.
[46]Ex 1, p 52.
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]
[47]Ex 1, p 43 Q-COMP reasons for decision.
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]
[48]Ex 1, p 62.
On 24 February 2010 the plaintiff was assessed in Brisbane by Dr Chalk, psychiatrist. Dr Chalk reported[49] that:
[49]Ex 1, pp 64-73, report 1 March 2010.
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…
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.
[50]Ex 1 p 43.
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.
[51]Ex 12.
[52]T2-53, ll 7-11.
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]
[53]Ex 12: Termination Letter from Deutsche Bank dated 28 February 2010.
The plaintiff did not allege that her employer made her position redundant or terminated her employment because of her illness or injury.
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.
[54]Ex 1, p 75: Letter from Dr Stringer to WorkCover dated 15 March 2010; T1-84, l23
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.
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.
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…
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…
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;
2. Dr Stringer’s medical certificate dated 20 October 2009; [55]
[55]Ex1 p 20.
3. Dr Stringer’s medical certificate dated 23 February 2010; [56]
[56]Ex 1 p 62.
4. Report Dr Chalk dated 1 March 2010; [57]
[57]Ex1 p 64
5. Report Dr Stringer dated 15 March 2010; [58]
6. 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.
[58]Ex 1 p 75.
[59]Ex 1, p 86.
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…
No finding was made, nor required, about whether the plaintiff was unable to ever work again.
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]
[60]T2-4, ln 30.
[61]T2-4 ll 40-45; T2-5 ll 1-10.
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(a) The Schedule for each Plan contains details of:
(i) The events upon the occurrence of which a benefit is payable;
(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
(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:
(a) The Member's Member Account Balance; and
(b) An Insured Amount.
8. INSURED AMOUNTS
8.1The 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:(a) ...
(b) Any other Member being:
(i) A Member other than a Causal Member, will be 4; and
(ii) A Causal Member, will be nil.
It is common ground that the plaintiff was a “Member” who ceased “Employment” before attaining age 65.
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:
[147]T3-8 and T3-9.
“1. INTERPRETATION
1.1 Definitions
In these Designated Rules:
…
‘Total and Permanent Disablement’ of the member:
(a)If there is a relevant policy of insurance in force – means disablement which the insurer determines qualified as permanent under that policy; or
(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:
…
(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
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”.
[148]Submissions on behalf of the plaintiff, paragraph 89.
[149]Op. cit at [48](c) and (d).
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.
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.
That is sufficient reason to refuse the plaintiff’s claim for a declaration against the trustee.
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.
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?
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.
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.
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.”
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.
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.
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.
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.
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.
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.
[150]T2-64, ll 1-6.
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.
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.
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
The plaintiff’s symptoms, though genuine and debilitating, do not entitle her to declarations, damages or an order against either defendant.