Michael Burke v MetLife Insurance Limited [2019] NSWSC 177

The recent decision by Rees J in the New South Wales Supreme Court in Michael Burke v MetLife Insurance Limited [2019] NSWSC 177 concerned a claim by an ex-police officer for Total and Permanent Disability (TPD) benefits. Mr Bourke asserted that he was TPD primarily as a result of a PTSD injury. Although pertaining to a TPD claim, this decision may assist insurers in workers compensation and work injury damages matters to:

  • Understand the nature of Post-Traumatic Stress Disorder (PTSD), including what warrants such a diagnosis;
  • Better comprehend the correct interpretation and application of psychometric testing and surveillance evidence; and
  • Recognise the inferences that decision makers can make regarding the quality of evidence.

Diagnosing PTSD

Rees J referred to the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 5th ed., 2013) (DSM-5) and the Expert Guidelines: Diagnosis and Treatment of Post-Traumatic Stress Disorder in Emergency Service Workers (Harvey et al., Black Dog Institute, 2015) (the Expert Guidelines) as authoritative texts on PTSD. The DSM-5 notes that in order for a diagnosis of PTSD to be acceptable, an individual must be ‘exposed to actual or threatened death [or] serious injury.’ An issue in Mr Bourke’s case, was the extent to which the Plaintiff’s exposure to false allegations and unlawful arrest could satisfy the ‘actual or threatened death [or] serious injury’ requirement. In this regard, Rees J concluded that these events did not cause the necessary exposure. Rees J’s further noted at [37] that:

‘According to the Expert Guidelines, diagnosing PTSD amongst emergency workers is a complex task and takes time and multiple assessments using clinical interviews, structure assessments, self-reporting and collateral history. The Expert Guidelines expressed concern about the quality of diagnostic assessments, noting a recent Australian study which found that only one in 31 PTSD diagnoses of emergency workers seeking compensation met the minimum standard for diagnosis.’ (Emphasis added)

Rees J’s Analysis of the Evidence

Medical evidence

Throughout the course of his various claims, Mr Bourke was reviewed by numerous treating practitioners and qualified doctors. A significant quantity of medical evidence was generated, with the consensus amongst the practitioners being that the worker was suffering from PTSD and was TPD. In this context, Rees J’s findings with respect to the conclusions and methods of certain practitioners, are notable.

Her Honour considered diagnoses that were based on one interview with the worker, or in circumstances where the practitioner had not been briefed with objective material canvasing the worker’s past history, to be ‘without clinical rigour.’ See discussion at [154]

Similarly, Rees J was equally ‘troubled’ by how the worker presented for the purpose of obtaining a Medical Assessment Certificate in his workers compensation proceedings, noting he seemed significantly more symptomatic at examination than he did in earlier assessments.

Lastly, a prominent feature of the worker’s presentation at examination, was his tendency to embellish certain aspects of his history of employment and injury. In this regard, whilst Her Honour accepted that a degree of hyperbole may arise in circumstances where the worker is asked, on multiple occasions, to recite his history in a time limited consultation, it was significant that Mr Bourke, ‘[G]ave an abbreviated and not entirely accurate summation which was somewhat self-serving.’ In this context, Rees J opined that, ‘If it be the case that Mr Burke’s history, as given to Dr Rees, was materially incorrect, then Dr Rees’ diagnosis and prognosis is affected.’

Factual Evidence

Surveillance of Mr Bourke was conducted on multiple occasions. His Facebook was also reviewed to verify his psychological functioning.  At times, this evidence depicted the worker performing tasks he reportedly could not undertake. Rees J grappled with the weight that ought to be applied to this evidence in view of the authority provided in decisions such as Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385. Her Honour ultimately concluded that, ‘Whilst there are dangers in placing too much weight on this material, it should not be rejected out of hand. It all forms part of the factual matrix.’

Expert Medical Evidence

Metlife, Mr Bourke’s insurer, commissioned two reports from Professor Richard Mattick, clinical psychologist. It was notable that Professor Mattick was briefed with essentially all of the material that was in Metlife’s possession, unlike other qualified doctors who had previously been briefed, and that he provided the most detailed history of any of the reports relied upon in the matter. He administered the MMPI-2RF test, with the results in 4 of the 5 “Validity Scales” indicating possible over-reporting. Buoyed by these findings, Professor Mattick concluded that whilst Mr Bourke most probably suffered from some psychological distress, he did not consider the worker to have total incapacity for future employment, and therefore, the definition of TPD was not satisfied.

Mr Bourke qualified Dr Ilana Hepner, clinical neuropsychologist, to provide a report in reply to Professor Richard Mattick. Unlike Professor Mattick, Dr Hepner was not briefed with the entirety of the material pertaining to the worker’s employment with NSW Police. Rees J noted that this necessarily limited the utility of her report. Dr Hepner proceeded to administer the MMPI-2-RF test and achieved essentially the same results as Professor Mattick. Instead of finding that this signified over-reporting, as indicated by the Manual accompanying the test, Dr Hepner considered the results to be indicative of the significant symptoms of distress that Mr Bourke had consistently reported in the prior medical reports.

In consideration of the above, Rees J preferred the evidence of Professor Mattick. Her Honour determined that to excuse the findings of the MMPI-2-RF test with reference to prior medical reports predicated on a materially inaccurate history, constituted circular reasoning that infringed the Manual accompanying the test.

Ramifications and Future Application

A number of considerations can be drawn from Rees J’s judgment in this matter.

  1. This decision affirms the strict clinical guidelines that apply to the accurate diagnosis of PTSD, which, as discussed above, can only be made following exposure to specific stressors. The accurate diagnosis of PTSD is a complex process that requires multiple interviews, self-reports and collateral history of traumatic events.
  2. Rees J’s judgment also illustrates how clinical testing can be a significant indicator of functioning or illness. Such testing becomes particularly pertinent when medical diagnoses have been reached pursuant to what appears to be a materially incorrect history.  Accordingly, insurers, at least insofar as TPD claims are concerned, are under no obligation to accept the majority view expressed in the medical evidence and it is reasonable to obtain an expert opinion on neuropsychological testing. Noting the dicta in workers compensation matters in this matter and [2014] NSWSC 358, it follows that similar reasoning ought to apply in the workers compensation setting.

Similarly, evidence contained in surveillance reports should not be disregarded. Such evidence adds to the wider factual matrix of a worker’s injury and, when supported by clinical testing results indicative of overreporting, may prove particularly material.

Notwithstanding the above, it is apparent that the evidence provided in clinical testing and surveillance is of limited value if there is little reason to doubt the consensus of medical opinion, for example, because the worker has not embellished their history. Accordingly, it may be sensible for insurers to avoid incurring the cost of such investigations unless and until circumstances arise that warrant scepticism of the workers account and the medical evidence predicated on their self-report.

  1. Lastly, this decision also demonstrates that medical reports that consider all available material, including contemporaneous reports canvassing a worker’s employment history, should be preferred. Where medical reports are grounded on the worker’s own self-reported history and this history proves to be materially incorrect, the validity of the diagnosis is affected. This reasoning draws on the High Court authority provided in [2011] HCA 21 and reports of this nature should be challenged.