Alexander and Comcare
[2003] AATA 411
•5 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 411
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/824 and N2002/628
GENERAL ADMINISTRATIVE DIVISION ) Re
ROBERT ALEXANDER
Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member
Dr J Campbell - MemberDate5 May 2003
PlaceSydney
Decision N2001/824: The Administrative Appeals Tribunal (“the Tribunal”) sets aside the decision of Comcare, the Respondent in these proceedings, dated 5 March 2001, which was affirmed by the decision of Comcare dated 21 May 2001 to deny liability for the compensation claim of the Applicant, Mr Robert Alexander. In substitution therefor the Tribunal finds that the Respondent is, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, liable for compensation to the Applicant, on and from 30 September 1999, for injury sustained during the course of his employment.
N2002/628: The issue of permanent impairment of Mr Alexander is remitted to the Respondent for its consideration.
Costs: Costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the Tribunal’s Practice Direction.
..................[Sgd]..........................
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - whether injury/disease - whether incapacity for work – material contribution of the workplace - decision set aside – permanent impairment remitted.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27 and 67(8)
Compensation (Commonwealth Government Employees) Act 1971 s39
CASE LAW
Otis v Telstra (1999) AATA 668
Buttfield v Comcare (2001) 64 ALD 281
Australian Postal Corporation v Bessey 2001[2001] FCA 266
Comcare v Mooi (1996) 137 ALR 690
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Commonwealth Banking Corporation v O’Neill (1988) 9 AAR 170
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Rodriguez v Telstra Corporation Ltd [1999] FCA 1400
O’Donohue v Comcare [2000] AATA 664
Van Houten v Comcare (AAT 12339, 24 October 1997)
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
5 May 2003 Ms G Ettinger - Senior Member
Dr J Campbell - Member
1. The decisions under review before the Administrative Appeals Tribunal (“the Tribunal”) were as follows:
N2001/824: The decision of Comcare, the Respondent in these proceedings, dated 5 March 2001(T15), which was affirmed by the decision of Comcare dated 21 May 2001(T22) to deny liability for the compensation claim of the Applicant, Mr Robert Alexander in regard to anxiety and depression injury claimed to have been sustained on and from 30 September 1999, during the course of his employment.
N2002/628: The decision of Comcare dated 7 May 2002 (T9) as affirmed by the decision of the Authorised Review Officer dated 7 May 2002 (T13) to refuse liability for permanent impairment of Mr Alexander.
2. The hearing took place over two days initially, followed by a further day to hear the evidence of an additional witness, Dr Canaris, psychiatrist, summonsed by the Tribunal. Closing submissions were also heard on the final day of hearing.
3. The Applicant, Mr Robert Alexander was represented by Mr M Carrick, solicitor of Geoffrey Edwards and Co, and the Respondent, Comcare, by Mr G Johnson of counsel, instructed by Dibbs Barker Gosling, solicitors.
ISSUES BEFORE THE TRIBUNAL
4. The Tribunal had to decide:
· Whether the Respondent is liable to Mr Alexander for an injury or a disease or aggravation of a disease suffered pursuant to section 4(1) of the Safety Rehabilitation and Compensation Act 1988;
· If he suffered an injury or disease, anxiety/depression, whether Mr Alexander’s employment materially contributed to his condition;
·Whether Mr Alexander was entitled to be paid compensation pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment.
LEGISLATIVE FRAMEWORK
5. The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, (“the Act”) in particular sections 4, 14, 24 and 27.
6. Section 4 of the Act defines “disease” and “injury” and follows as relevant:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”
7. Section 14(1) of the Act provides that:
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
8. Sections 24 and 27 of the Act deal with permanent impairment and follows as relevant:
“24 Compensation for injuries resulting in permanent impairment
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
24(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
24(3)Subject to this section, the amount of compensation payable to the employee is such an amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
24(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
24(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24(6)The degree of permanent impairment shall be expressed as a percentage.
24(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
….
27 Compensation for non-economic loss
27(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…”
9. The Tribunal was mindful that permanent impairment is assessed pursuant to the Comcare Guide for the Assessment of the Degree of Permanent Impairment(“Comcare Guide”).
EVIDENCE BEFORE THE TRIBUNAL
10. The Tribunal had before it documents (“the T-Documents”), lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act”).
11. The following Exhibits were admitted into evidence:
ITEM
DATE
NAME
Report of Dr C Canaris to Geoffrey Edwards & Co
23 January 2002
Exhibit A1
Report of Dr C Canaris to Geoffrey Edwards & Co
26 February 2002
Exhibit A2
Report of Dr M Girgis to Family Court of Australia
8 August 2000
Exhibit A3
Handwritten Medical Certificate - Dr M Girgis for Mr Alexander
11 October 2000
Exhibit A4
Letter from Dr M Girgis to the Commonwealth Superannuation Board
29 November 2000
Exhibit A5
Medical Report from Dr M Girgis
24 February 2001
Exhibit A6
Affidavit of Mr Robert Alexander
24 July 2002
Exhibit A7
Schedule of Applicant’s Evidence and Clinical Notes of Dr Low
Undated
Exhibit A8
Clinical notes - Highview Family Medical Centre
16 August 2002
Exhibit A8
Referral Letter from Highview Family Medical Centre
4 October 1999
Exhibit A9
Clinical Notes received from Macquarie Health Centre – Dr Low
Undated
Exhibit A10
Medical Report of Dr M Girgis
9 May 2000
Exhibit A11
Clinical Notes - Dr Edmond Lau & Dr K T Lau
15 February 2002
Exhibit A12
Medical Report – Dr Matalani of Health Services Australia Ltd
17 December 1999
Exhibit A13
Medical Certificate - Dr Low
30 September 1999
Exhibit A14
Medical Certificate Dr M Girgis
7 October 1999
Exhibit A15
Medical Certificate - Dr Low
4 October 1999
Exhibit A16
Medical Certificate - Dr M Girgis
13 October 1999
Exhibit A17
Medical Certificate - Dr M Girgis
20 October 1999
Exhibit A18
Medical Certificate - Dr M Girgis
4 November 1999
Exhibit A19
Report of Leave Details - Mr Alexander
December 2001
Exhibit A20
Report of Sick Leave Details - Mr Alexander
4 May 2000
Exhibit A21
Notes from Attorney-General’s Department
18 November 1976
Exhibit A22
T-documents 2001/824
Exhibit R1
T-documents 2002/628
Exhibit R2
Letter from Mr Alexander to Family Court of Australia accepting offer of redundancy
18 December 2000
Exhibit R3
Summons and Affidavit of Service issued to Dr M Girgis - 19 November 2001
23 November 2001
Exhibit R4
Business Card and Notes - Dr M Girgis
6 June 2000
Exhibit R5
Summons and Affidavit of Service issued to Dr M. Girgis - 7 August 2002
12 August 2002
Exhibit R6
File note of telephone conversation between Miss Rieper of Dibbs Barker Gosling and Dr M Girgis
12 August 2002
Exhibit R7
12. Oral evidence was given by Mr Robert Alexander; the Applicant; Dr R Lewin psychiatrist; Dr C Canaris, psychiatrist and Ms L Rieper, solicitor, Dibbs Barker Gosling.
MR ROBERT ALEXANDER - THE APPLICANT
13. Mr Alexander, whose date of birth is 14 December 1943, and whose Affidavit dated 24 July 2002 was Exhibit A7 before the Tribunal, gave oral evidence. Mr Alexander was employed as a court officer at the Family Court of Australia in Parramatta from 1976 to 1999, and took a redundancy in 2000. When certain typographical and stylistic alterations in his Affidavit were pointed out to him by his representative (Transcript 12.8.02, p.18), he agreed with them. Mr Alexander was also referred to paragraph 84 of his Affidavit where he had stated that he was responsible for escorting judges out of the building in the event of a bomb threat. He corrected that to be escorting the judges to the fifth floor of the building rather than out of the building. He also told the Tribunal that he had no training in that regard, and that the fear involved caused him great stress.
14. In reply to Dr Campbell’s questioning, Mr Alexander gave a history of his work life commencing with the predecessor of State Rail, then moving to the Department of Defence at Victoria Barracks as a clerk. Mr Alexander reported no problems working with the abovenamed employers or his family at that time. He recalled a problem with a neighbour while he was working at the Family Court.
15. Mr Alexander also recounted that he had a constant cold “... constant cough ... and I was constantly taking mucus off my chest.” He said that he attended a Dr Lau, and at the time attributed it to the badly ventilated and overcrowded office where he worked (1998/89). Mr Alexander said that around that time, on 30 September 1999, he had a “very severe panic attack” at Blacktown while shopping.
16. Mr Alexander then corrected several other dates in his Affidavit to indicate that he had been referred by Dr Lau to Dr Girgis, whom he first consulted in late 1999. Mr Alexander said he had been on sick leave until he had no further entitlements, in approximately late 2000. He could not remember the exact date but agreed with his Counsel that he was made redundant on 27 December 2000 after being off work from 30 September 1999. Mr Alexander said that he had made various attempts to get back to work, and had not formally notified his employer of any injury until he signed a compensation form which he dated 18 October 2000 (T3). Mr Carrick confirmed he had assisted Mr Alexander to fill in the form.
17. Mr Alexander told the Tribunal that after leaving the Family Court, he had financial problems and approached Centrelink. He is now in receipt of a disability support pension.
18. The Applicant gave evidence of the commencement of stress symptoms from approximately 1977, which he said he ignored. He said that, “At that time I didn’t want to believe what was wrong with me.” He said that the symptoms got worse over time. He said: “I just thought that I was doing my job and I was getting into trouble because I didn’t see eye to eye with that particular judge ... I didn’t have any other problems working with anybody else.” Mr Alexander gave evidence that work became more stressful as time progressed from the 1970s to the 1980s. He explained to the Tribunal that people were making more threats towards the Court, and as a court officer, they took it out on him because they could not get at a Judge. Mr Alexander said that the stress first manifested as shortness of breath in 1977/78, and said that he attributed that to the cramped working conditions, air conditioning and general tension, and tried to block it out. He said it became worse by the mid-1980s, and lasted on and off all day, “built-up throughout the day”. Mr Alexander recalled the first time he suffered shortness of breath and related it to having to stand guard outside a Judge’s Chambers for approximately two hours after a threat had been made. He felt unable to cope with the situation as he had no such training he said.
19. Mr Alexander said that between the mid to late 1970s and September 1999, he thought he had a “very bad case of flu, bronchitis, sinus, hay fever ...”. He said no doctor had adverted to any psychological ills. Mr Alexander also gave evidence that when applying for the CMF, State Rail and the Federal Public Service, there had been either psychiatrists or psychologists on the interview panels with which he sought to indicate that he had been well at those times.
20. In cross-examination, Mr Alexander told the Tribunal that he went to see Dr Lau in February 1986, and obtained a confirmation of that date from the doctor’s staff. He said he had been to see Dr Lau for his colds and bronchitis, not anxiety. He was aware that he had with the assistance of Mr Carrick, nominated February 1986 in Question 15(a) of his compensation claim (PT3/5), as the date for the first medical treatment for his claimed illness. Mr Alexander agreed in cross-examination that he associated his coughs and colds which he said lasted from March until September (1986) with his workplace.
21. Mr Alexander said that in approximately mid-1994, he had marriage problems, problems with relatives and friends, and problems socially, and then tried to get a work transfer. The Applicant also said that he had a problem with a colleague, Mr Lee, who was also a court officer. He said that things got worse in mid-1986 with the commencement of the bombs and bomb threats in the Family Court. He said, (in addition to what had been written in his claim form):
“There was bombings ... there was a shooting of a judge, there was a bombing of the Family Court, there was bombings of the judges in the Family Court, in their houses. There were threats made to judges, there were threats made to court officers, me in particular. They took upon – litigants took upon themselves (sic) to attack me in particular, and other court officers because they could not get at the judges.”
22. Mr Alexander agreed in cross-examination that he had ceased working as a court officer in 1995 and had been transferred to the Records Department, and then the Legal Department. He agreed his work was no longer in the court rooms from 1995, but insisted that he encountered angry litigants in the lifts, outside the Court and even in shopping centres.
23. Mr Alexander also gave evidence about difficulties he experienced with a particular Judge, agreeing however that she had left Parramatta Court in approximately 1993/94, and that he had not had to deal with her since that time. He also recounted problems he had experienced with a Registrar whom he saw from time to time even after she had moved away from the Parramatta Court.
24. The Applicant also gave evidence of being kicked and punched by members of the public, and said he could not identify who was doing it because the rooms were crowded. He said that he felt he was being abused and could not do anything about it. He said he could not complain to the Police about it, but told his supervisor regularly.
25. In cross-examination, Mr Johnson put to Mr Alexander that he had not had time off before 1999, and that he had not complained of the people and events either in person or in his claim form which he was now putting before the Tribunal. The Applicant was adamant that there was a lot of material which he had “blocked out”. He also explained to the Tribunal that he did not know exactly when he became ill from the pressures suffered at the Family Court. He said: “I didn’t know what was happening. I didn’t know that I was suffering from psychiatric problems. I knew that my attitude towards people had changed, to my family, to my children, to my relatives and to my friends.”
26. The Applicant described his experience of panic attacks and headaches (characterised by Dr Campbell of the Tribunal as tension headaches). He also told the Tribunal in reply to questions in cross-examination that he could go out, could go to shops for periods lasting an hour or so, that he could drive his car for short distances and travel by train, and that he had sleep disturbance. Mr Alexander also described himself as being irritable, argumentative and unable to communicate with people. He also described some compulsive behaviour with regard to cleanliness and checking appliances.
27. Mr Alexander also reported on his consultation with Dr Lewin, the psychiatrist to whom he was referred by Comcare. He reported it as an unsatisfactory meeting in which he felt Dr Lewin was not listening to him, and said that Dr Lewin had made mistakes in the ensuing report. In that regard, and in seeking to clarify matters, Mr Johnson put various questions to Mr Alexander about the report. Mr Johnson asked whether, in his younger days, Mr Alexander consumed alcohol before meeting with girls to overcome confidence problems and fear of rejection. Mr Alexander denied doing that. Further on in the cross-examination, Mr Alexander agreed he had drunk alcohol at social occasions when he was younger, and that he “virtually stopped” when random breath testing commenced. He was adamant that because he did not drink, he often acted as the driver for friends and family because some of them drank to excess.
28. Mr Alexander told the Tribunal that at the Family Court he had a fear of not meeting the standards of some of the people he met, for example “…judges, barristers .... people high up in churches ... They came from a higher – to me they were of a higher standard than I was.”
29. The Applicant appeared also to be concerned because Dr Lewin took him through the history of his early life. He agreed that he was the fourth of 13 children and the eldest boy, that he was frightened of his father who was stern, and that he received punishment. He also recounted a separation fear on first attending school, and bed wetting up to the age of five years. He recounted a dislike of school and of participating in school performances. He was an average student and repeated two years of high school. Mr Alexander reluctantly agreed two of his brothers were alcoholic although he preferred to say they drank. He agreed he became agitated with Dr Lewin when speaking about the fact he did not get on with his wife or see his children and grandchildren.
30. In cross-examination Mr Alexander agreed he had sought medical assistance for what he thought were bronchial problems from Dr Low, his general practitioner, in 1982, and had been taught a slow breathing technique for chest tightness. He said that he associated the techniques with relief for his bronchial problems, and not anxiety.
MEDICAL EVIDENCE
31. The Tribunal reviewed the extensive medical evidence before it and has referred here to the evidence both of those doctors who gave oral evidence before the Hearing as well as certain others whose written reports were before the Tribunal in the T-Documents. Others have simply been reviewed without further comment in coming to a decision with regard to Mr Alexander. The summary of the medical evidence follows. The Tribunal has studied the medical reports, but has not repeated the history taken from Mr Alexander by the doctors on each occasion. Rather it has concentrated mainly on the discussion of their opinions and diagnoses. As can be seen from the documents tendered at the Hearing, there were also medical notes of Drs Lau and Low, general practitioners who treated Mr Alexander over a period of time.
DR R LEWIN - PSYCHIATRIST
32. Dr Lewin whose report dated 15 February 2001 (T14) was before the Tribunal gave oral evidence.
33. His conclusions in the report were as follows:
“During his teenage years and early adulthood, the most prominent feature of his condition was social anxiety. As an adult, he experienced obsessive-compulsive symptoms all the way through. More recently, he begins to experience panic symptoms and hyperventilation symptoms associated with some agoraphobic symptoms. This pattern of varying presentation at different stages of the life cycle is typical of the underlying condition which is a genetically mediated trait anxiety. This condition arises from inherent causes ….
The sorts of stressors that Mr Alexander described in the workplace are ordinary stressors.They are neither necessary nor sufficient to have caused this condition nor to have led to any exacerbation. The condition would have occurred regardless of these sorts of experiences. It is my opinion that the situation in the workplace is not relevant in any causal sense.”
34. In his oral evidence, Dr Lewin opined as follows:
“I diagnosed an anxiety disorder which I considered to be a life-long anxiety condition and I noted that Mr Alexander gave a clear and rich history of severe and episodic anxiety symptoms periodically since his childhood years.”
35. Dr Lewin agreed when asked, that the nature of those symptoms altered over the years. Dr Lewin explained as follows as to the patten of change over the years:
“The upward manifestation of anxiety is a reflection of the life stage that the individual is in. If someone is anxious in their teenage years it’s often reflected in terms of social anxiety. The task of the teenager in some sense is to gain an education to make their way in the world and to learn the skills necessary to find a mate, in broad sense, so that when anxiety disrupts those functions the disruption appears in terms of difficulty in social situations, difficulty in the educational sphere. Similarly, in the young child, the characteristic disruptions in terms of attachment, in terms of behaviour related to going to school, anxiety in the home and in the school environment. In the adult it relates to their more public role so that the manifestation anxiety tends to be a reflection of the development stage that the individual is at, at that particular age.”
36. Dr Lewin referred, when asked about the separation anxiety about which Mr Alexander had spoken, to the notes he took at the consultation. He read them out as follows:
“First day at school I cried, I hated leaving dad at the gate. Dad took me because mum was in hospital – then I noted that that was a confinement – didn’t want to go.”
37. Dr Lewin said that he had also taken notes regarding bed wetting and Mr Alexander’s relationship with his father. He said that the finger nail biting to which Mr Alexander admitted, fear of the dark, concerns regarding public speaking and performances at school, were a cluster of symptoms which were often seen where there was a pattern of anxiety symptoms, which he labelled trait anxiety. Dr Lewin agreed that this was not a term to be found in DSM-IV, but said it was commonly used. He opined that where such a cluster of symptoms was present, there was one of two conclusions possible, either a physical condition or a lifelong anxiety disorder. When asked how it was that up to Mr Alexander’s thirties he was coping with life reasonably well, having married, having children and various jobs, Dr Lewin stated that: “The natural history of an anxiety disorder is for it to follow a fluctuating course that the intensity of the symptoms varies over time and that happens regardless of circumstances. There tend to be episodic flare-ups at various times in the life cycle..”
38. Dr Lewin also confirmed that he had discussed social anxieties Mr Alexander had experienced as a teenager e.g. presentations, and public speaking. As to alcohol consumption; Dr Lewin stated that he always took such histories with a degree of scepticism because most people who had a drinking problem tended to minimise it.
39. Dr Lewin was asked in cross-examination about the statement in his report that two of Mr Alexander’s brothers were alcoholic. He told the Tribunal that his actual notes did not reflect that specific statement, but that he may have asked more detailed questions than what he had recorded. Dr Lewin had also recorded that Mr Alexander had abused alcohol at various times in his life as a way of coping with anxiety, in particular in the years before he married.
40. Dr Lewin commented upon the 1982 consultation with his general practitioner which Mr Alexander said he had had with regard to problems with breathing. Dr Lewin told the Tribunal that back in 1982, the standard treatment for such anxiety symptoms was Valium, and a general practitioner who in those days was able to teach relaxation training and a breathing technique, was an uncommonly good doctor. However, the treatment, “although it does not make the diagnosis, it certainly is strongly consistent with it [anxiety].”
41. When asked about Mr Alexander’s obsessive compulsive behaviour, Dr Lewin stated as follows:
“ ... obsessive compulsive symptoms fall towards the more biological, organic or hard-core inherited end of the scale in terms of causation. Generally, it’s assumed that these sort of things occur independent of environmental precipitants and are indicative of an organic type pattern. Similarly, this pattern of trait anxiety, which I believe is the accurate description of this case, is considered to be a core sort of biological type vulnerability rather than something that is essentially because of adversity or environmental precipitants.”
42. Dr Lewin was asked in cross-examination about Mr Alexander’s excessive washing and fear of faecal contamination after a haemorrhoid operation. He agreed he had taken such history and agreed also that a lot of people he had looked after who had had such operations, were concerned that faeces would enter their general systems.
43. Dr Lewin was also asked as follows with reference to the events at the Family Court:
Q “Can you tell us whether any of those, either singularly or cumulatively, are in your view likely to be responsible for the causation of his condition, or any aggravation of it?”
Dr Lewin: “Firstly, the question of causation, the condition was clearly established long before he commenced work, let alone before he started with this particular employer. The condition which I described is an episodic condition and expect that it will wax and wane in severity over time. So the events outlined in the document in terms of events at work are, in my view, not relevant in terms of causation. The question of whether life experiences in general and these life experiences in particular led to a change in the clinical course of an anxiety disorder such as the one I’ve described is a more complex question. The general view which I hold to is that minor stressors are ubiquitous in life and don’t lead to any ongoing change although they might lead to a minor transient increase in anxiety symptoms over a short period of time, hours and days. ...”
44. Dr Lewin also commented that major stressors likely to cause more than a transient increase in symptoms differed from what was being described in relation to Mr Alexander. He referred to catastrophic injury to oneself or one’s own child or personal injury such as being shot. He said that the concept of cumulative stress was spurious, and that a lot of minor stressors did not equate to a single major stressor in any circumstance. He mentioned being sworn at by a member of the public or similar, or even the threat Mr Alexander described in relation to Mr Lee’s behaviour, and said that such events could lead to transient outpouring of intense emotion but not illness over a long period. He said further: “The reason is that stressors are ubiquitous and that they happen all the time, and that if there was a building up in that sense rather than an extinguishment we’d all just blow up and couldn’t continue.” Dr Lewin also opined that the behaviour of litigants at the Family Court to which Mr Alexander was exposed, although difficult to manage at times, was not a major stressor. He gave examples of major stressors (where there was a personal relationship with a person killed, or where one was a direct witness to the experience), and when asked about killings at the Family Court, opined that “To hear about a killing and to be worried about something that might possibly happen would not fall in that ambit ....” Dr Lewin added that fear [of the bombings] and vulnerability were not psychiatric illnesses.
45. Dr Lewin was also asked about stressors in relation to the situation of Mr Alexander who ceased being a court officer and worked in other roles at the Court from 1985 to September 1999. Dr Lewin replied that most commonly, stressors had an impact which was immediate, and abated over time. He said that if anxiety symptoms continued over a long period in the absence of stressors, then there was another process going on, an entrenched pattern unrelated to individual stressors.
46. Dr Campbell of the Tribunal asked Dr Lewin about the effect of the stresses at work in relation to Mr Alexander:
Dr Campbell: “...it is impossible for me to accept that he could have ever entered the workforce if he was as bad as he is now. He would not have got past the first five minutes of any interview, let alone lasted in the job. ...
The question is, why has his condition deteriorated so much, and the issue that we have before us is that we have a fellow starting in ’76 with the Court and has a downhill slippery slope ... and at the end of the day, he is found to be no longer able to continue in his work. ...”
Dr Lewin: “I’m strongly of the view that in this particular case, ... it is the manifestation of the illness process and ageing and those sorts of factors ... the life history of the condition rather than something external; and that, indeed, Mr Alexander would have had a similar course regardless of his life experience in the workplace.”
47. Senior Member Ettinger of the Tribunal asked Dr Lewin as follows:
“He is worse now than he was 10 years ago, or when he joined the Court. Do I hear you say that that is a natural progression of the illness rather than any stress or induced aggravation.”
Dr Lewin: “That’s my view, yes.”
48. The Tribunal also noted Dr Lewin’s fine tuning of that statement to say that: “the correct statement is that it is episodic and fluctuating. It is not correct to say that it naturally progresses to get worse and worse over time.”
DR CHRISTOPHER CANARIS – PSYCHIATRIST
49. At the close of evidence on the second day of Hearing, the Tribunal was not satisfied it had sufficient evidence before it to make the correct and preferable decision regarding Mr Alexander, and decided at its expense to summons Dr Canaris to give evidence with regard to his examination of Mr Alexander. In doing so, the Tribunal offered the parties the opportunity of recalling Dr Lewin, which ultimately did not occur. Dr Canaris was given various documents as agreed by the parties at the Hearing.
50. Dr Canaris, whose report of 23 January 2002 was before the Tribunal as Exhibit A1, gave oral evidence. He had produced a further report dated 26 February 2002 (Exhibit A2) with regard to permanent impairment which was not considered at this Hearing.
51. The Tribunal was mindful of several salient points in Dr Canaris’ report (Exhibit A1), some of which were clarified or expanded in oral evidence as indicated below. The Tribunal noted in particular:
· Dr Canaris recorded that he offered the Applicant a subsequent interview when he found him “inordinately anxious ... pacing around the waiting room ... grossly tremulous and stuttered”. He recorded Mr Alexander’s refusal and reply as follows: “If I know I have to come back, it’s no good for me ... I want to get it out of the way ... I don’t want to talk about it ... (not usually this anxious) ... only when I have to talk about it.”
· With regard to becoming more and more anxious while working at the Family Court: “... He was emphatic that there was no way in the world that he felt like this when left the Department of Defence.”
· “I think there can be no doubt your client (written to Mr Alexander’s solicitors), suffers from a crippling anxiety disorder with evidence of panic anxiety, generalised anxiety disorder and some obsessive compulsive disorder features. As happens with all too many real life patients his anxiety disorder defies the neat pigeonholes of the DSM-IV. ... The label (anxiety disorder), however, does not give a clear understanding of the origins of his disorder and in particular the factors that have caused his condition to deteriorate to such a parlous extent.”
52. Dr Canaris was asked about what he meant by noting that Mr Alexander’s workplace was “unusual” at page 9 of his report. His answer included:
“... well the Family Court where this man spent a significant number of years working in an area which is characterised by far more than the usual degree of hostility and adversariality ... there have been bombings ... homicides .... it is also in this man’s case it appears there was quite a lot of hostility directed towards him. Not just from members of the public but also from a number of significant people within the court and he mentioned two female judges in particular and also a fellow worker whom he portrays as a very psychologically unstable man ... “
53. Dr Canaris was also referred to page 8 of his report and asked to comment on the statement therein:
“That substantial trait anxiety has been present since his youth is obvious. However, it is impossible for me to accept that he could ever have entered the workforce if he was as bad as he is now. He would not have got past the first five minutes of any interview let alone lasted in the job.”
54. Dr Canaris replied that Mr Alexander was an anxious man at the time he started work at the Family Court, noting that he had a difficult childhood. He pointed out that he and Dr Lewin took a history of the childhood which was somewhat different, but added that:
“I certainly would accept that his childhood was a difficult one and one which would of its own accord reinforce any natural tendency, any constitutional tendency to anxiety. However it appears from what he says that he coped in most working – in all working environments that he had been at until he actually found his way into the Family Law Court. Now, here you have an anxious man confronting what I think or what impressed me as a very very abnormal level of hostility, at times frank malevolence. We have a further problem… we’re talking about bomb threats, ... about actual bombings ... a work place where homicides took place ... an unusual court environment and one which would be likely to generate anxiety or some level of disease ... and certainly carried the potential to trigger psychiatric illness in a person even in a person who had no particular predisposition to psychiatric illness.”
55. Dr Canaris was referred to Dr Lewin’s view about stresses (e.g. being sworn at by members of the public), as experienced by Mr Alexander at the Family Court. He opined: “Basically, the more life events you have and the more adverse life events you have the greater your likelihood of precipitating psychiatric illness. So the consequent cumulative stresses in my view are not a spurious one.” Dr Canaris compared the situation to that of teachers. He also said that:
“.... the more stresses you have the more vulnerable you become to the next stress and one of the concepts that we have in our understanding of the evolution of mood disorders and anxiety disorders is a notion called kindling. Now, this is a notion borrowed from the epilepsy literature and this says that each individual has a threshold of stress tolerance and if you exceed that threshold in a given instance that person will develop, as Dr Lewin describes, an episode of minor psychiatric illness. However, multiple such episodes in fact lead to a progressive lowering of that threshold ...”
56. Dr Canaris also opined:
“Now, one of the issues with this man is that he does have already a vulnerability and so I think it is reasonable to say that he would probably have developed such episodes sooner than somebody of entirely normal fortitude but I think someone of entirely normal fortitude sooner or later exposed to this long enough would have been at substantial risk of a psychiatric disorder, of perhaps not quite the same magnitude but certainly an enduring psychiatric disorder as opposed to something transient.”
57. Dr Canaris also opined that the level of stresses was significant, for example the normal minor irritants of office work, meeting deadlines and lack of support staff were at one level, and most people developed some coping mechanisms for that he said. However, direct physical threats, and the news that someone had been killed were different he said. In that regard, Dr Canaris explained that people often continued at work with a disorder because they did not want to acknowledge their weakness or vulnerability. He referred to the contact with Mr Lee (who worked at the Family Court from 1981 until his dismissal in 1992), and Mr Alexander reporting suffering from feelings of tightness and pain in the chest, shortness of breath and difficulties breathing from the mid 1980s.
58. Mr Johnson put to Dr Canaris that Mr Lee never actually hit or physically assaulted the Applicant and that he left the Family Court in 1992, and put it to Dr Canaris that it was entirely speculative to suggest that the experience of working with Mr Lee had a permanently worsening effect upon Mr Alexander’s psychiatric condition given he had had trait anxiety all his life. Dr Canaris answered by saying there was a substantial probability that what had occurred with Mr Lee was the cause of permanent worsening of Mr Alexander’s condition. He added that even people who did not have trait anxiety could have ongoing psychiatric illness precipitated by such experiences.
59. Mr Johnson also referred to the issue of bomb threats and the fact that Mr Alexander had not had a personal relationship with the judges involved, neither actually witnessed any killing. Dr Canaris replied emphasising that the stresses were cumulative and that Mr Alexander also concurrently received threats from members of the public and Mr Lee, so that his anxiety levels were raised.
60. When questioned about how the contribution of his work to his illness would have been in the years when Mr Alexander was no longer a court officer, (1995 – 1999), Dr Canaris opined that: “... I think it is more probable than not that the damage was effectively done by the time he made the transfer.”
61. Dr Canaris also explained his view about people like Mr Alexander, whom he described as “dogged and persevering”, not wanting to admit anything was wrong, and struggling on until he could no longer cope. Mr Johnson suggested that point could also have been reached by the natural progress and evolution of the underlying trait disorder Mr Alexander has suffered since childhood. Dr Canaris replied that notwithstanding Mr Alexander had not taken time off work in relation to his anxiety, his disorder had not waxed and waned, rather it had become progressively worse and crippling ... “crippling to a highly unusual degree”.. Dr Canaris also opined that even after relocation from the stressors, 30 percent of people did not get better. In support of his argument, Dr Canaris added:
“... this man is already a vulnerable man and this man gives a history of anxiety symptoms as early as the 1980s, so we’re talking about something like 19 – well 15 to 19 years of anxiety symptoms, of at times close to panic intensity ... a person with that kind of history is more likely to fall into the 30 per cent than a person who has – does not have that sort of history.”
62. Dr Canaris clarified his figure of 30 percent by telling the Tribunal that it referred to post traumatic stress disorder, and that he was not in fact referring to a specific study.
63. In closing, and reply to Dr Campbell of the Tribunal, Dr Canaris stated that the increased severity of Mr Alexander’s anxiety triggered his departure from work in 1999, but that the aggravating factors leading up to that occurred along the way from the 1980s up until 1995. Dr Canaris noted that it was 1995 when Mr Alexander’s aggravation of his anxiety became sufficiently severe for him to seek a transfer. Dr Canaris also opined that contrary to Dr Lewin’s evidence, he considered that Mr Alexander’s anxiety disorder developed in the 1980s and that before coming to work at the Family Court, he was simply a vulnerable personality.
DR M GIRGIS – CONSULTANT PHYSICIAN, NEUROLOGY & PSYCHIATRY
64. The Tribunal was very displeased at the behaviour towards it by Dr Girgis, and was mindful of the evidence given by Ms Rieper regarding efforts to contact Dr Girgis. Exhibit R7 before the Tribunal was a file note of Ms Rieper dated 12 August 2002 in which she recorded that she had telephoned Dr Girgis regarding his summons to attend at the Tribunal. His answers to her were in effect recorded as: “I do not go to court for anyone. ... Had a stroke last time I went to court”, and in reply to Ms Rieper’s questioning:
Ms Rieper: “You realise you can be arrested?”
Dr Girgis: “I don’t care. Are you acting for Mr Alexander?”
Ms Rieper: “No, for Comcare.”
Dr Girgis: “You are his enemy. I will not give evidence for you.... Judges are corrupt and will just end up being questioned by corrupt barrister. You tell the Judge I said that.”
65. The Tribunal noted Mr Carrick’s submission that Dr Girgis’ reports be given little weight. Not surprisingly this was not opposed by Mr Johnson. However for the sake of completeness and because he was a treating practitioner, his reports have been mentioned here. There was quite a number, including some in the T-documents, and also Exhibit A3 dated 8 August 2000, Exhibit A4 dated 11 October 2000, Exhibit A5 dated 29 November 2000, Exhibit A6 dated 24 February 2002, Exhibit A11 dated 9 May 2000 and Exhibit A15 dated 6 October 1999.
66. For the sake of completeness, I have noted data from the most relevant of the reports. Dr Girgis wrote to the Rehabilitation Case Manager of the Family Court on 8 August 2000 (Exhibit A3), that Mr Alexander was suffering Post Traumatic Stress Disorder (“PTSD”), and that he was permanently unfit for work. On 11 October 2000, (Exhibit A4), Dr Girgis wrote a medical certificate indicating that Mr Alexander suffered severe anxiety/depression and panic disorder which was work related. At Exhibit A5, dated 29 November 2000, Dr Girgis wrote to the “Commonwealth Superannuation Board” that Mr Alexander was “suffering from a severe condition of anxiety/depression state associated with panic disorder (work related)” and stated that he was permanently unfit for work. In his final report dated 24 February 2002, (Exhibit A6), Dr Girgis wrote that he had been seeing Mr Alexander regularly for two years, referred to his earlier diagnoses, and added that his medical condition was work related, and not arising out of a life long anxiety state as diagnosed by Dr Lewin.
67. In his report at Exhibit A11, Dr Girgis stated that Mr Alexander had developed severe anxiety and phobic disorder due to enormous psychological stress at work. The Medical Certificate of Dr Girgis at Exhibit A15 dated 6 October 1999 nominated stress as the reason for inability to attend work from 7 October to 15 October 1999.
DR E MATALANI – CONSULTANT OCCUPATIONAL PHYSICIAN – HEALTH SERVICES AUSTRALIA LTD
68. The report of Dr Matalani was before the Tribunal as Exhibit A13 dated 17 December 1999.
69. Dr Matalani was asked to assess Mr Alexander in relation to fitness to continue duty. The Tribunal noted that this was in the context of Mr Alexander having gone off on sick leave on 30 September 1999 following a panic attack in a shopping centre and after which he did not return to work. Dr Matalani diagnosed anxiety state with depressive features. He opined at the date of examination, 17 December 1999, that Mr Alexander was not fit to return to any duties within the next two to three months, and opined: “.... I believe he is unsuitable to return to the records section as this will almost certainly initiate a recurrence or an aggravation of his condition.”
MS B O’SHEA – REHABILITATION CASE MANAGER
70. There was a number of reports and correspondence involving Ms O’Shea before the Tribunal. The Tribunal noted that at T7, a report dated 30 November 2000, Ms O’Shea referred to other Health Services Australia Ltd reports which were not before the Tribunal, including reports of 10 March, 5 May and 1 September 2000 which were not before the Tribunal. Of interest to the Tribunal was her statement that:
“It should be noted that until these reports were received there had been no indication that Mr Alexander’s condition had been considered to be work related. It wasn’t until May 00 that work was mentioned on a certificate received from his psychiatrist. … Eventually, as a result of the assessment on 1 Sep the doctor at HAS recommended total and permanent incapacity.”
EVIDENCE OF MS LYNETTE JANE RIEPER – SOLICITOR
71. The Tribunal was displeased with Dr M Girgis as he had chosen to ignore summons addressed to him, and accordingly Ms Rieper, solicitor at Dibbs Barker Gosling who was acting for the Respondent, who had dealt with the issue, gave evidence before the Tribunal.
72. The Tribunal accepted into evidence the second issue of summons documents addressed to Dr Girgis requiring him to produce documents to the Tribunal and the affidavit of service as Exhibit R4. Ms Rieper told the Tribunal that the second summons was issued because the first had been posted according with her firm’s usual practice, and accordingly service could not be proven. No documents had been produced in reply to the first summons. What did appear after the second summons was served, was a single page of notes, and what appeared to be Dr Girgis’ business card. The single page of notes, being a half page of handwriting dated 6 June 2000 and the business card were tendered, and are Exhibit R5 before the Tribunal.
73. There was also an affidavit of service dated 7 August 2002 and a summons for Dr Girgis to give evidence before the Tribunal on 12 August 2002 which was tendered, and is Exhibit R6 before the Tribunal.
74. Ms Rieper gave evidence on oath with regard to her contact with Dr Girgis, who did not appear before the Tribunal on 12 August 2002 as summonsed. She told the Tribunal about the various efforts (including several telephone calls), which she had made to contact Dr Girgis with regard to his appearance. Ms Rieper reported on her telephone conversation with Dr Girgis, stating as follows:
“ I identified myself, told him I was ringing in relation to the summons, told him that he had been required to attend the Tribunal today and that he obviously hadn’t attended. He said, ‘No I didn’t. I never go to Court.’ I asked him to attend today at 10 o’clock and he again said no he wouldn’t. He then went on to describe an incident he had had at Court 12 years ago and told me he’d had a heart attack or a stroke following that attendance and so he now refuses to attend any Court. I told him that he could possibly be arrested if he didn’t attend. He told me he didn’t care. I told him there was a possibility that the Tribunal may refer it to the Medical Board. He told me he didn’t care. He then asked me who I was acting for. I said I was acting for Comcare. He said ‘Well then, you’re the enemy. I’m definitely not giving evidence for you’. He told me that he wouldn’t attend Courts because he thought all barristers and judges were biased and then went on again to tell me about his health problems following his last attendance at Court.”
75. Ms Rieper’s file note of that conversation was tendered as Exhibit R7.
SUBMISSIONS AND CONCLUSIONS
76. The Tribunal must take into account the evidence, submissions both oral and written, the case law and legislation to make the correct and preferable decision regarding Mr Alexander’s entitlement for compensation. As noted above, the Tribunal was required to consider the following in reaching the correct and preferable decision:
· Whether the Respondent is liable to Mr Alexander for an injury or a disease or aggravation of a disease suffered pursuant to section 4(1) of the Safety Rehabilitation and Compensation Act 1988;
· If he suffered an injury or disease, whether Mr Alexander’s employment materially contributed to his condition;
·Whether Mr Alexander was entitled to be paid compensation pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment.
77. The Tribunal puts on record that it accepted Mr Alexander as a witness of truth, and that it acknowledged that notwithstanding difficulties in giving evidence in public, he did so to the best of his ability.
78. The Tribunal moved then to consider first whether Mr Alexander suffered an injury or disease or aggravation of injury pursuant to section 4 of the Act.
WHETHER MR ROBERT ALEXANDER SUFFERED AN INJURY OR A DISEASE PURSUANT TO SECTION 4(1) OF THE ACT
79. In considering whether Mr Alexander suffered a compensable injury or disease pursuant to the Act, the Tribunal took into account all the evidence, submissions and case law. As relevant sections 4 and 14 of the Act which define injury and disease, and deals with compensation follow:
80. Section 4 of the Act defines “disease” and “injury” and follows as relevant:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”
81. Section 14(1) of the Act provides that:
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
THE APPLICANT’S SUBMISSIONS
82. The Tribunal was mindful of Mr Carrick’s submissions, that notwithstanding an underlying condition, and psychological problems from the time of his childhood, Mr Alexander’s problems had not been debilitating, and he had been able to work and perform as an adequate functioning member of the community well into his employment with the Family Court which commenced in 1976. Mr Carrick reminded the Tribunal that in this regard, Mr Alexander was capable of enrolling voluntarily in the CMF, marry, have children, seek and maintain himself in employment.
83. Mr Carrick then described the significant stresses Mr Alexander encountered at the Family Court as referred to in his evidence. The Tribunal does not repeat these in full here, but acknowledges that Mr Alexander gave full and frank evidence of these during his evidence and in his affidavit (Exhibit A7). In addition to the aggressive behaviour of the public as described, there were bomb threats and an actual bombing of the building in which Mr Alexander worked, albeit not when he was present. Mr Carrick characterised the threats Mr Alexander was subject to as serious and recurrent. He emphasised that as a court officer, the Applicant felt a sense of responsibility for his own as well as the safety of others. This was also in the context of a conflict between himself and a Judge, a Registrar and Mr Lee.
84. Mr Carrick then submitted that from the early 1980s, Mr Alexander had symptoms such as tightening in his chest, and breathing difficulties, none of which he associated with being psychological in origin.
85. Accordingly, on the basis that Mr Alexander had a vulnerability, and was put into a stressful environment, Mr Carrick submitted that there was a material contribution of the workplace to his injury, his anxiety state. He submitted that Mr Alexander had been incapacitated for work since 1999. Mr Carrick referred to the case law in a general way, emphasizing that material contribution of the workplace pursuant to the Act did not require that contribution to be the sole cause of any problem.
86. Mr Carrick submitted, referring to the medical evidence, that Dr Girgis attributed all of Mr Alexander’s problems to his work. Mr Carrick submitted that the Tribunal would not accept Dr Girgis’ evidence in full. He also referred to Dr Lewin’s evidence, who had considered work had nothing to do with Mr Alexander’s condition. Mr Carrick submitted that the Tribunal view sceptically the opinion of Dr Lewin. Mr Carrick also emphasised that Dr Lewin had made errors in his report, referring to Mr Alexander’s brothers as alcoholic without basis for that statement, errors in the reporting of the Applicant’s fear of faecal contamination, and in general submitted that Dr Lewin was acting as an advocate for the Respondent. Mr Carrick suggested that Dr Canaris’ evidence was more practical and credible.
87. In relation to how it was Mr Alexander could continue to work from 1995 when he ceased being a court officer to his transfer to the records section, legal section and subsequent retirement in 1999, Mr Carrick referred to paragraphs 122 and 140 of the Applicant’s affidavit. The Tribunal noted:
Paragraph 122: “I continued to suffer worsening panic attack symptoms although I did not recognise the symptoms as panic attacks at that time. I had attacks a number of times a week.”
Paragraph 140: “I found the work in the records section very difficulty (sic) to deal with. I was put under pressure because there were deadlines I had to meet concerning getting files out and ready for court and putting files away. The more pressure there was on my (sic) at work the more difficulty (sic) I had in coping with the work.”
88. Mr Carrick also submitted that Dr Mattelani in his report at Exhibit A13, noted that Mr Alexander had stressful situations such as the bombing of the Family Court building to deal with and had no training to do so.
89. So in summary Mr Carrick submitted:
“.... the stresses at work have contributed to and aggravated his underlying condition, his anxiety condition, it has become worse and permanently worse in the manner that Dr Canaris has described and by 1995 he’s not really much good for work any more due to his psychological condition. He struggles on for some more years and as soon as the pressure is put on he breaks down.... the nature and conditions of his work has caused the injury which leads to a finding of liability under this legislation.”
90. As to the date of injury, Mr Carrick submitted it was difficult to decide and notwithstanding Mr Alexander’s condition worsened from the 1980s, he put it at the date of the panic attack in 1999 when Mr Alexander sought medical treatment.
91. Mr Carrick referred the Tribunal to section 7(4) of the Act and the decisions of Otis v Telstra (1999) AATA 668 and Buttfield v Comcare (2001) 64 ALD 281 with regard to the issue of injuries which occurred over a period of time such as that of Mr Alexander.
92. Mr Carrick did not accept the submissions of the Respondent that Mr Alexander’s condition had worsened since leaving the Family Court, referring rather to the Applicant’s evidence that he felt worse at having to come to the Tribunal to talk about his case.
THE RESPONDENT’S SUBMISSIONS
93. Mr Johnson submitted that the task was to focus on liability, identifying what injury was suffered, and its longevity. In that regard, he submitted that the Respondent, relying on Dr Lewin and Dr Canaris, contended that what Mr Alexander suffered was a lifelong anxiety condition. Mr Johnson also submitted that in relation to the Applicant’s submissions that Dr Lewin had misconstrued the history, Dr Lewin in giving his evidence, referred on many occasions to contemporaneous notes. In that regard, Mr Johnson referred to Dr Lewin’s evidence at the transcript of evidence of 13 August 2002, at pages 12, 15, 20, 21 and others.
94. Mr Johnson submitted that what Dr Lewin was saying was that because of Mr Alexander’s predisposition, he had a “disorder which was manifesting itself from time to time in different situation without being environmentally worsened”. He submitted that Dr Canaris conceded in cross-examination that the underlying condition was itself capable of leading to the present situation.
95. Mr Johnson referred to the Applicant’s first absence from work on 30 September 1999, and to what he referred as the alleged stressors. In that regard he referred to the shooting of Opas J in 1980, the departure of Mr Lee in 1992, and the transfer of Mr Alexander from his position of court officer, (where he claimed abuses from litigants), to other duties in 1995. He submitted that the level of those alleged stressors was such that Mr Alexander was able to continue working until 1999, and that there was no credible explanation for reliance on any event at the Family Court causing him to cease work at that time.
96. Mr Johnson also referred to the report of Health Services Australia (Exhibit A13), referring to paragraph three on page two of that report, where he submitted the doctor had stated that Mr Alexander was “happy” in the legal section to which he had been transferred after 1995.
97. Mr Johnson referred to the evidence of Dr Girgis upon which he submitted the Applicant did not rely, and which, he submitted, the Tribunal should discount.
98. Mr Johnson also referred to the evidence of Dr Canaris and to inconsistencies the Respondent perceived in that evidence. He referred to evidence which was unclear, he said, regarding whether Mr Alexander’s condition worsened after he left the Family Court. He said this was consistent with Dr Canaris’ theory that when people gave up work they sometimes gave up situations where they felt valued, and suffered accordingly. In that regard, Mr Johnson submitted as follows:
“Now either he felt valued or he didn’t feel valued. You can’t have it both ways. So that’s the first point, first absence of depression in 1999, that’s the 30 September 1999. Second point, stressors in the work place generally before 1999. Third point, that tension that I’ve referred to in relation to the 1999 experiences. Fourthly the fact that the stressors in the work place were not objectively severe in the sense that Dr Lewin came to, ... we’re not talking here about somebody who has seen somebody shot. We’re not talking about somebody who has had a close friend affected.
We’re talking about well known events in the court that we all might have read about in the newspapers but events which didn’t really touch him personally at all and he of course continued working.”
99. As to the severity of the stressors and the alleged abuses by litigants, Mr Johnson submitted that Mr Alexander was exaggerating and could not identify any bruising which had occurred, neither had he reported any incident to State or Federal Police. He submitted that Mr Alexander’s evidence that he had been accosted in the street by hostile litigants who remembered him, was not credible.
100. Mr Johnson also referred to Mr Alexander’s evidence submitting that the Applicant had agreed his condition had worsened after he left the Court, and his replies to Mr Johnson in cross-examination that he did not think he could have worked in the years after he left the Court. He also referred to Mr Alexander’s evidence that the Applicant gave evidence of not knowing when he became psychologically or psychiatrically ill, and did not, at the time, associate the stressors he now claimed, to have caused his illness.
101. In closing, Mr Johnson submitted that the Applicant’s embellishment of stressors not be given much weight by the Tribunal, but that it rely on the medical evidence, in particular that of Dr Lewin. He submitted on behalf of the Respondent that “.... there was no injury as defined in the Act. If there was any injury from time to time it was a notional injury which was temporary and which did not sound in any incapacity ....”.. In regard to the concept of temporary aggravation or a temporary injury, he referred the Tribunal to Australian Postal Corporation v Bessey [2001] FCA 266.
THE TRIBUNAL
102. The Tribunal noted by way of background, that Mr Alexander claimed compensation for anxiety disorder suffered in connection with stressors suffered at the Family Court. The claim was refused (Exhibit R1: T15 & T23).
103. The Tribunal was mindful of sections 4, 14 and 7(4) of the Act, the latter with regard to the date of injury.
104. There was considerable discussion at the Hearing regarding the onset of Mr Alexander’s anxiety condition, and the Tribunal noted that in his claim at T3, Mr Alexander had, with the assistance of Mr Carrick, completed Question 15(a) as follows:
Question 15(a): “What date did you first have medical treatment for your injury/illness?”
Mr Alexander: “Feb 1986 – but misdiagnose
8/99 – properly diagnose for first time”
105. After hearing all the submissions and considering the evidence, the Tribunal accepted that whilst Mr Alexander sought medical assistance for breathing difficulties, and what he thought were bronchial problems, and had been instructed in breathing techniques by his general practitioner in 1982, he had not associated these with any psychological or psychiatric condition. Mr Alexander’s further evidence which the Tribunal also accepted, was that in 1986 he had sought assistance from Dr Lau for what he thought were respiratory problems, and not any psychological condition. The Tribunal accepted that although Mr Alexander felt stressed and anxious given the events of the 1980s at the Family Court and had a fear of being attacked, all of which he detailed for the Tribunal, it was in 1995 that he felt he could no longer cope and resigned from the position of court officer. It was undisputed that he then worked in the records and legal sections until 1999. The Tribunal accepted also that on 30 September 1999 Mr Alexander suffered a panic attack for which he attended at Dr Low’s surgery and after which he did not return to work. Dr Low referred Mr Alexander to Dr Girgis who continues to see Mr Alexander monthly.
106. After certain submissions as to what Mr Alexander’s psychological or psychiatric state was when he joined the Family Court, and comment from the Tribunal, it was agreed that Mr Alexander had a life-long personality disorder with anxiety symptoms in 1976, rather than an anxiety disorder.
107. The Tribunal then moved to consider section 7 of the Act, noting that it is concerned with diseases, and makes provision for circumstances that are peculiar to disease cases as distinct from injury cases. Included among these provisions are those to be found in subsection (4), which deal with latent disorders. The subsection is in the following terms:
“(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
108. Section 7(4) of the Act sets a deemed commencement time. It fixes the date of a disease for legal purposes, whether or not from a medical point of view, the disease was previously in existence.
109. The purpose of section 7(4) of the Act is to deal with medical conditions that do not become apparent until some time after the initiating cause. An example as given by the Tribunal in Otis (supra) would be melanoma occurring considerably after the prolonged exposure to sun. Another example given was (as in Otis (supra)), the gradual progression of an impairment of deafness until associated tinnitus drove the sufferer to seek medical treatment for the whole condition. The subsection exists for the purpose of ensuring that applicants affected by conditions which have a long maturation period are not prejudiced compared with those who are immediately affected by traumas. The Tribunal in Otis (supra) decided that the Applicant’s claim fell within the terms of the subsection and was consistent with the purpose and intent of the subsection.
110. In the case of Mr Alexander, the Tribunal noted that he first sought medical assistance for a panic attack associated with his anxiety disorder on 30 September 1999 (Exhibit A14 Medical Certificate of Dr Low indicating depression). It was undisputed that he has not been back to work since that day, and the Tribunal accepted his evidence that he could not work from that time on.
111. The Tribunal was mindful that the Applicant did not nominate a particular event in connection with his claim. He had claimed stressors during his employment at the Family Court, including the conflict he described with a Judge and a Registrar and the aggressive behaviour of the litigants towards him both in and outside the precincts of the Court, the general prevailing atmosphere of fear and threat which prevailed in the 1980s, the assassination of Opas J, the bombing of the Court and Judges’ homes, and the threatening behaviour of Mr Lee towards him. The Tribunal noted that Mr Alexander worked with Mr Lee from 1981 until Mr Lee was dismissed for assaulting his supervisor in 1991.
112. Notwithstanding Mr Johnson’s submissions that Mr Alexander had given evidence of his condition worsening after he left the Family Court, the Tribunal was satisfied from the evidence that it was the prospect of attending the Tribunal to give evidence that caused Mr Alexander to be more anxious. In fact an application was made by Mr Carrick on behalf of Mr Alexander before the Hearing that because of his anxiety, he rely on his Affidavit and not give oral evidence.
113. The Tribunal then moved to consider the main medical evidence regarding Mr Alexander as follows:
· Dr Lewin who diagnosed a life-long anxiety condition with a history of severe and episodic anxiety symptoms periodically since childhood. Dr Lewin described as follows: “The natural history of an anxiety disorder is for it to follow a fluctuating course that the intensity of the symptoms varies over time and that happens regardless of circumstances. There tend to be episodic flare-ups at various times in the life cycle.” He also described trait anxiety in relation to Mr Alexander, “a core sort of biological type vulnerability rather than something that is essentially because of adversity of environmental precipitants.” As to causation, he said that the condition was clearly established long before Mr Alexander commenced work with the Family Court. Minor stressors, he opined, are ubiquitous in life and don’t lead to any ongoing change although they might lead to a minor transient increase in anxiety symptoms over a short period of time. He added that the manifestation of Mr Alexander’s illness was a process of ageing and those sorts of factors – it was “episodic and fluctuating” he said.
· Dr Canaris opined that Mr Alexander had trait anxiety from his youth. Although he stated that his history of the Applicant’s childhood was somewhat different from that recorded by Dr Lewin, he agreed that the childhood had been difficult, and that this would have reinforced any constitutional tendency to anxiety. He endorsed the view of cumulative stresses having effects as compared to a single stress of similar magnitude. He described the breathlessness and tightness in the chest Mr Alexander reported suffering at the Court from the mid 1980s as typical of persons unable or unwilling to admit their weakness or vulnerability and disorder. Dr Canaris opined that the illness would have been established by the time Mr Alexander left the position of court officer to transfer to clerical work in 1995.
· Dr Girgis diagnosed PTSD, a severe condition of anxiety/depression state associated with panic disorder not arising out of a life long anxiety state, and considered it work related. Dr Girgis continues to see Mr Alexander monthly.
114. Dr Mattelani diagnosed anxiety state with depressive features and opined in December 1999 that Mr Alexander was not fit to return to any duties within the next two to three months, and opined: “.... I believe he is unsuitable to return to the records section as this will almost certainly initiate a recurrence or an aggravation of his condition.” The Tribunal noted that contrary to Mr Johnson’s submissions that Dr Mattelani had reported that Mr Alexander was “happy” in his report at Exhibit A13, this had been taken out of context, and should have read:
“He asked for a transfer and eventually was transferred to the record section. … eventually went to work in the legal section 1995. His duties were mainly of a general filing duties and getting files from one location to another and a bit of photocopying. He was happy as there was no contact with the public and no stress. … However, in August this year he was transferred to the record section and found it very difficult to work there as there were too many people in the way and was not quite sure why he was transferred there but was informed he will only be there for 5 weeks. …. he is unsuitable to return to the records section as this will almost certainly initiate a recurrence or an aggravation of his condition. …”
115. The Tribunal, in considering whether Mr Alexander suffered a disease pursuant to the legislation, noted the decision of Drummond J in Comcare v Mooi (1996) 137 ALR 690, who, in respect of whether Mooi’s condition was a compensable ailment, held it could be a physical or mental ailment, defect or morbid condition. His Honour held that:
“In my opinion, the expressions used in the Safety Rehabilitation and Compensation Act 1988 to define the various forms of mental condition that can amount to “injuries” compensable under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’ s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. …
There has been a continuous liberalisation of the requirements to be satisfied by Commonwealth employees to be entitled to workers’ compensation. But the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee’ s capacity to work is no more compensable than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness.”
116. Guided by Drummond J, the Tribunal had to determine whether any condition Mr Alexander suffered was outside the bounds of normal mental functioning and behaviour.
117. The Tribunal considered the various diagnoses made by the doctors whose evidence was before it. The Tribunal accepted the opinions of Drs Lewin and Canaris that Mr Alexander had a life-long anxiety state, a disease pursuant to the Act, and accepted that on 30 September 1999, the Applicant suffered a panic attack, sought medical assistance, and did not return to work.
118. The Tribunal noted Mr Johnson’s reference to Australian Postal Corporation v Bessey (supra) and was satisfied from the medical evidence that Mr Alexander did not suffer a temporary aggravation of his anxiety disorder. There was nothing temporary about it.
119. The Tribunal was satisfied that there appeared to be no injury simpliciter able to be established pursuant to the legislation, and agreed there was none claimed.
120. The Tribunal moved then to consider that as Mr Alexander had suffered a disease, whether his employment had materially contributed to it within the terms of the legislation, and whether it was therefore compensable.
WHETHER MR ALEXANDER’S EMPLOYMENT MATERIALLY CONTRIBUTED TO HIS CONDITION OF ANXIETY DISORDER
121. The Tribunal had then to ascertain whether the disease the Applicant suffers, that is anxiety disorder, was materially contributed to by his employment. In doing so, the Tribunal was mindful that the principal cases in which the phrase “material contribution” was interpreted included: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36; Westgate v Australian Telecommunications Commission (1987) 17 FCR 235; Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173; and Commonwealth Banking Corporation v O’Neill (1988) 9 AAR 170.
122. The Tribunal was mindful that for Mr Alexander’s employment to have materially contributed to his condition, or to the aggravation of his condition, a causal link between the two would have to be found. The Tribunal was mindful that is not enough that the condition began, or became worse, at the same time as particular events happened in the workplace. The Tribunal must be satisfied that those events actually caused the condition or its aggravation. Mr Alexander’s employment did not need to be the only cause of his condition as claimed, and as submitted by Mr Carrick, but its role must not have been insignificant.
123. The Tribunal noted that in the case of Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 a decision made pursuant to the Commonwealth Employees (Compensation) Act 1971, (“the 1971 Act”), it was held that once the causal link was established on the balance of probabilities and was not left in the area of conjecture, "it matters not that the contribution be large or small." The Tribunal in Treloar (supra) had based its reasoning on the High Court’s approach in Federal Broom (supra).
124. The Tribunal was mindful of Rodriguez v Telstra Corporation Ltd [1999] FCA 1400, a decision of Spender J where his Honour held:
”… if the experience in the workplace and the incidents that occurred during his employment at Telstra had as a response his major depressive disorder, and if the workplace relationship and Mr Rodriguez’s perception concerning aspects of that relationship were a material contributing factor to the disease, that is sufficient to entitle him to compensation.”
125. The Tribunal considered Mr Alexander’s claim, and the evidence of the medical witnesses before the Tribunal. The Tribunal has already stated above that it accepted the medical opinions of Drs Lewin and Canaris in regard to diagnosing a life-long anxiety disorder on the basis of the history of the Applicant’s childhood and anxieties reported by him, and discussed by the two psychiatrists abovenamed. On this basis, the Tribunal has rejected the evidence of Dr Girgis as to the origins of the anxiety disorder.
126. The Tribunal accepted also Mr Alexander’s evidence regarding the stressors at the Family Court including the conflict between himself and a Judge and a Registrar. The Tribunal noted also that Mr Fitzpatrick, a co-worker also referred to the events of the 1980s (T5 and T6):
· The fatal shooting of Opas J
· The bombing of the residence of Gee J
· The bombing of the Parramatta Registry
· The fatal shooting of the wife of Watson J
· Lack of security at the Court
· Verbal and physical abuse by litigants at and outside the Court
· Threats of violence by Mr Lee
· Crowding in the premises and other poor working conditions
· Shooting of a litigant by her husband
127. The Tribunal noted also that Senior Member Lewis in O’Donohue v Comcare [2000] AATA 664, who found for Mr O’Donohue in relation to his claim for compensation, said in relation to his workplace at a not unrelated time:
“The Tribunal finds that the abovementioned work environment provided the psychological climate within which the Applicant developed a pathological stress reaction superimposed on a low-grade depression that had been emerging over the previous few years arising from the Applicant’s perception of chronic overwork …
The Tribunal also finds that during this period before, during and after 1993, he existed in a management environment in which he was barely tolerated …
The Tribunal finds on the evidence that the Applicant’s feelings of resentment, hostility, anger and bitterness are integral to his depressive illness, which continues to plague him and at the time of the hearing it was ongoing. They arise directly from the litany of experiences he had while in the employ of the Court which, together, have caused this depressive condition. …”
128. The Tribunal considered whether Mr Alexander’s condition was aggravated by the attitudes and events he encountered. The Applicant’s perceptions with regard to the Judge, the Registrar and Mr Lee, all of whom he had conflict with, the bomb threats and bombing of the building (albeit when he was not present), and the attitudes of the litigants were all perceived by him as stressors.
129. Mr Johnson’s submissions were that these were not major stressors which caused a compensable condition. The Tribunal noted from Van Houten v Comcare (AAT 12339, 24 October 1997) for example, that if Mr Alexander perceived a work contribution but that perception was false, then that situation attracted no liability of the Respondent. In that regard, the Tribunal noted that Senior Member Beddoe had stated in Van Houten:
“It does not follow, in my view, that because the applicant developed these adverse perceptions about his employment with consequential stress and depression that the employment made a material contribution to the applicant’s condition of major depression.”
130. However, the Tribunal was satisfied that in Mr Alexander’s case, the perception was not false at all.
131. In reaching a conclusion regarding whether there was a causal connection and contribution by the workplace to Mr Alexander’s condition, the Tribunal took into account the various events he encountered as discussed above, and accepted the evidence of Dr Canaris that:
“Basically, the more life events you have and the more adverse life events you have the greater your likelihood of precipitating psychiatric illness. So the consequent cumulative stresses in my view are not a spurious one.”
... the more stresses you have the more vulnerable you become to the next stress and one of the concepts that we have in our understanding of the evolution of mood disorders and anxiety disorders is a notion called kindling. Now this is a notion borrowed from the epilepsy literature and this says that each individual has a threshold of stress tolerance and if you exceed that threshold in a given instance that person will develop, as Dr Lewin describes, an episode of minor psychiatric illness. However, multiple such episodes in fact lead to a progressive lowering of that threshold ...
Now, one of the issues with this man is that he does have already a vulnerability and so I think it is reasonable to say that he would probably have developed such episodes sooner than somebody of entirely normal fortitude but I think someone of entirely normal fortitude sooner or later exposed to this long enough would have been at substantial risk of a psychiatric disorder, of perhaps not quite the same magnitude but certainly an enduring psychiatric disorder as opposed to something transient.”
132. The Tribunal noted Dr Lewin’s views regarding the progression of Mr Alexander’s life-long anxiety which the Tribunal accepted he had when he commenced employment at the Family Court, and rejected Dr Lewin’s assertions that the stressors described by Mr Alexander were minor. In that regard, the Tribunal was mindful that Dr Lewin concentrated in his report and indeed in his assessment of Mr Alexander, on the Applicant’s early history with only minor comment on the work situation at the Family Court. He opined as follows:
“Firstly the question of causation, the condition was clearly established long before he commenced work, let alone before he started with this particular employer. The condition which I described is an episodic condition and expect that it wax and wane in severity over time. So the events outlined in the document in terms of events at work are, in my view, not relevant in terms of causation. The question of whether life experiences in general and these life experiences in particular led to a change in the clinical course of an anxiety disorder such as the one I’ve described is a more complex question. The general view which I hold is that minor stressors are ubiquitous in life and don’t lead to any ongoing change although they might lead to a minor transient increase in anxiety symptoms over a short period of time, hours and days. ...”
133. The Tribunal finds that there was material contribution of the workplace to Mr Alexander’s condition of anxiety disorder which he now suffers, with the date of onset commencing in the 1980s but pursuant to section 7(4) of the Act, on 30 September 1999.
134. Accordingly the Tribunal finds that the Applicant suffered an injury, a disease, which was aggravated by his work at the Family Court pursuant to section 4 of the Act. The Tribunal accepted the evidence that Mr Alexander has been unable to work and has been incapacitated since that time. Liability must be accepted pursuant to section 14 of the Act, and the reviewable decision set aside.
PERMANENT IMPAIRMENT
135. Depending on the dates held to be relevant, the issue of whether Mr Alexander is permanently impaired may be decided pursuant to section 39 of the Compensation (Commonwealth Government Employees) Act 1971, and then pursuant to the transitional provisions in section 124 of the 1988 Act, by reference to sections 24 and 27. The date of any impairment which may have become permanent before 1 December 1988 may trigger the involvement of the 1971 Act which did not however, provide for compensation for psychological or psychiatric injury.
136. In that regard the Tribunal noted the Applicant’s claim form at T3 in which he had, with the assistance of Mr Carrick replied to Question 15(a): “What date did you first have medical treatment for your injury/illness? Feb 1986 – but misdiagnose - 8/99 - properly diagnose for first time.”
137. Mr Johnson submitted, referring to T9 and T14 of Exhibit R2 that there had been no reviewable decision on permanent impairment, and that therefore on the authority of Lees v Comcare (1999) 56 ALD 84, the Tribunal did not have jurisdiction to review permanent impairment. If liability was found, he submitted, then the matter should be remitted to the Respondent for decision.
138. The Tribunal accepted that there had been no reviewable decision on permanent impairment on the merits, and decided to remit the matter to the Respondent for its consideration.
DECISION
N2001/824: The Administrative Appeals Tribunal (“the Tribunal”) sets aside the decision of Comcare, the Respondent in these proceedings, dated 5 March 2001, which was affirmed by the decision of Comcare dated 21 May 2001 to deny liability for the compensation claim of the Applicant, Mr Robert Alexander. In substitution therefor, the Tribunal finds that the Respondent is, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, liable for compensation on and from 30 September 1999, to the Applicant for injury sustained during the course of his employment.
N2002/628: The issue of permanent impairment of Mr Alexander is remitted to the Respondent for its consideration.
Costs: Costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the Tribunal’s Practice Direction.
I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr J Campbell, Member.
Signed: ……………[Sgd – Kwai-Ling Wong]...............
Associate
Dates of Hearing12, 13 August 2002 and 12 December 2002
Date of Decision 5 May 2003
Solicitor for the Applicant Geoffrey Edwards and Co
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Dibbs Barker Gosling
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