Baker and Telstra Corporation Limited and Anor
[2008] AATA 1136
•19 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1136
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200400656, 2007/0520
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER BAKER Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
And
COMCARE
Respondent
DECISION
Tribunal Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member Date19 December 2008
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
.............Signed..................
Deputy President
CATCHWORDS
COMPENSATION – occupational asthma – psychological condition – no evidence that asthma was brought on as a result of the applicant’s employment with Telstra – applicant’s evidence is inconsistent and not credible – no basis for medical opinions of occupational asthma - decisions under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
19 December 2008 Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member Introduction
1.The applicant, Mr Christopher Baker, has asthma. The first issue we have to decide is whether his asthma is occupational. Unless it is, his case fails. If Mr Baker does have occupational asthma we will be required to determine which of the respondents, Telstra Corporation Limited or Comcare, is liable to pay him compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). There is, as well, an issue about the relationship between Mr Baker’s mental state and his employment.
2.For the present, it is a sufficient explanation of the case put forward by Mr Baker to say that he claims that his asthma is the result of exposure to dust, gases, toxins and other substances during his employment with the predecessors in title to Telstra[1]. He says that he suffers from a depressive disorder which was contributed to by exposure to dust in the workplace and exacerbated by his occupational asthma.
[1]Mr Baker was originally employed by the Postmaster General’s Department and later by the Australian Telecommunications Commission (Telecom). For simplicity, and despite the fact the he never worked for Telstra, we will refer to his employment as having been with Telstra unless it is necessary to identify a particular employment.
The uncontroversial background
3.We start by recording some matters that are not in dispute.
4.Mr Baker was born in 1949. In May 1965 he commenced employment as a telegram boy with what was then the Postmaster General’s Department. He remained in that employment until June 1969. Mr Baker does not suggest that any occurrence during that employment had any relevance to the present proceedings.
5.As best as can now be determined having regard to the passage of time, Mr Baker was employed by the PMG (or its successor, Telecom) between July 1970 and July 1971, from October 1971 to April 1973, and between July 1973 and January 1975 with an entity described in the material as N Q Constructions[2]. He re-joined Telecom in May 1976 and remained in that employment until September 1988 when he was made redundant. There is controversy about the nature of his employment, and the tasks he was required to perform, during the 1970s and 1980s. We deal with that controversy below.
[2] It was, nonetheless, a part of Telecom.
6.In January 1987 Mr Baker injured his left knee in the course of his employment when he was working in a manhole. He sought compensation for injuries said to have been occasioned to his left knee and his back in that incident. In May 1989 this tribunal affirmed a decision refusing Mr Baker compensation for his claimed back injury.
7.Mr Baker’s next employment was as a taxi driver in the early 1990s. Then, between May 1993 and April 1994 Mr Baker was employed as a residential care officer dealing with persons said to be “intellectually disabled and physically violent”[3]. Mr Baker says that he suffered personal injury when he was assaulted and abused in the course of that employment. In January 1996 solicitors acting for Mr Baker commenced proceedings against the State
of Queensland in the Brisbane Registry of the District Court of Queensland, seeking to recover damages for breach of contract, negligence and breach of statutory duty. Those proceedings were ultimately settled.
[3]Exhibit 25, paragraph 1(c).
8.In early 2001 Mr Baker appears to have had a concern about having been exposed to asbestos in the course of his employment with Telstra. He was referred to Dr Roger Allen, a thoracic and sleep disorders physician, who saw him in April and May 2001. Dr Allen did not diagnose asthma.
9.Next, there was an incident in August 2001 when, Mr Baker says, a Brisbane City Council bus which he boarded drove off before he was able to be seated with the result, he says, that he was thrown about injuring his back. He consulted solicitors in relation to recovering damages for that injury.
10.During 2002 Mr Baker consulted Dr Ian Brown, a chest physician, who diagnosed chronic bronchitis and late onset asthma.
11.In December 2002 Mr Baker lodged a claim with Telstra’s compensation insurer for “continuous chest infections, shortness of breath, bronchitis, asthma, swollen lungs, wheezing cough, depression, psychological problems and sleeping difficulties” which he said were “associated with exposure to asbestos products and other unknown dust substances” during his employment with Telecom. The claim was rejected in December 2003. That decision was affirmed on reconsideration on 17 June 2004.
12.After that decision Mr Baker’s solicitors suggested a referral to see Dr Maurice Heiner, a consultant thoracic and sleep physician. Dr Heiner made the first diagnosis of occupational asthma in July 2004. The proceedings against Telstra seeking a review of the reconsideration decision were commenced in the Tribunal in August 2004[4].
[4]Q200400656.
13.In May 2006 Mr Baker lodged a similar claim with Comcare against the possibility that that entity might be liable for his claimed conditions. That claim was rejected and that decision affirmed on reconsideration on 16 February 2007. The proceedings against Comcare seeking a review of that decision were commenced in the Tribunal on 27 February 2007[5].
[5] 2007/0520
The case for mr baker
14.The case that Mr Baker advances may be shortly stated. He says that in the period between May 1965[6] and September 1988 he was employed by Telstra in a variety of capacities including that of linesman’s assistant, linesman, storeman and cable jointer. In those occupations, he says, he was repeatedly and heavily exposed to a variety of substances that are well-known to cause occupational asthma, that is, asthmagenic agents. During his employment, he says, he suffered continually from chest infections and other symptoms of asthma, but his asthma was not properly diagnosed until he saw Dr Heiner in 2004. His constant illness, and the inability of medical practitioners to diagnose the cause of the illness, led him to become depressed. The causal relationship between employment and depression was put on an alternative basis in final submissions on behalf of Mr Baker but for the reasons we develop below we would not permit Mr Baker to pursue this alternative case.
[6]This is the date in paragraph 4 of Mr Baker’s Statement of Facts and Contentions, although in his evidence Mr Baker accepted that his initial years of service as a telegram boy could not have exposed him to any relevant substances.
15.It is said that the occupational asthma and the depression (diagnosed as dysthymia) have the necessary connection with Mr Baker’s employment.
16.There is medical support for the diagnosis of occupational asthma. Dr Heiner and Dr Allen both make that diagnosis[7]. In addition, Dr Gary Larder, a consultant psychiatrist, has expressed the view that Mr Baker’s psychiatric condition has been contributed to by his employment. But it is accepted that the accuracy of each of the opinions expressed is dependant upon the accuracy of the history given by Mr Baker.
[7]The diagnosis was also made by a Dr Samarawickrama but his report was not relied upon by the applicant.
The case for telstra and comcare
17.The argument advanced by Mr Elliott QC who led Mr Carey for Telstra, and by Mr Howe QC who appeared for Comcare, had four essential elements:
(a)that Mr Baker did not have either the length or extent of exposure to toxic substances that he claimed to have had;
(b)that, contrary to the history given by Mr Baker to medical practitioners and in his evidence, he did not have any significant history of chest complaints whilst employed by Telstra. Indeed, it was said, the contemporaneous records are to the contrary;
(c)that Mr Baker had a demonstrated pattern of reporting symptoms falsely to suit the purposes of the particular consultation; and
(d)that as a consequence of these matters we could not be satisfied that Mr Baker’s evidence, or his reporting of symptoms to medical practitioners, was truthful or accurate.
18.These propositions put Mr Baker’s credibility very much in issue and it is convenient to look first at that issue. As it seems to us Mr Baker cannot succeed unless we regard his evidence and the histories given, particularly to Dr Heiner, Dr Allen and Dr Larder, as essentially truthful and accurate. For the reasons that follow we are unable to so find; indeed, were it necessary to do so, we would conclude that Mr Baker’s evidence was demonstrably untrue. Accordingly, it seems to us to be desirable to first examine the bases on which Telstra and Comcare submit we ought reject Mr Baker’s evidence.
The extent of exposure
19.It is not open to doubt that in the course of his employment with Telstra Mr Baker was exposed to asthmagenic agents. Formaldehyde (the active agent in creosote), epoxy resins, dusts, ketones and solder – substances to which Mr Baker says he was exposed – are all asthmagenic agents. The case for Telstra and Comcare was that he had significantly and deliberately overstated his exposure to such agents, both as to the periods of employment in which that exposure could have occurred and the extent of exposure during times when there was a potential for exposure.
20.Mr Baker’s evidence in chief was given, in the main, by an affidavit dated 31 May 2007[8]. At the outset of his evidence he swore that he had read the affidavit earlier that day and that its contents were true and correct to the best of his recollection. The affidavit dealt with the extent of his exposure to asthmagenic agents by reference to particular tasks and periods as follows[9]:
(a)linesman’s assistant – from about 1968 to 1972;
(b)linesman – from about 1973 to 1978;
(c)storeman/field material operator – from about 1979 to 1983;
(d)lines serviceman (training programme) – from about 1984 to 1985;
(e) cable jointer – from about 1986 to 1989.
[8] Exhibit 6.
[9] Exhibit 6, paragraph [4].
In the body of his affidavit Mr Baker deals with the extent of his exposure to asthmagenic agents by reference to these periods.
21.In the period from 1968 to 1972 Mr Baker says that as a linesman’s assistant he was exposed to formaldehyde “approximately two times per week on average … for an approximate duration of two hours”, to Roundup (a weedkiller) “approximately three times a year” for about half a day on each occasion, to epoxy resins approximately “three times per week” for an “approximate duration of 15 to 20 minutes”, to glues on a daily basis with “at least an hour of exposure each day on average”, to solvents “three to four
times per week, for an approximate duration of an hour each time” and to asbestos dust on “one full day per week on average”. Additionally Mr Baker says that he was exposed to ceiling dust in commercial and residential buildings on a regular basis and to gases of unknown origin as a linesman’s assistant and linesman.
22.It is immediately apparent from Mr Baker’s employment history that he could not have had the extent of exposure to any of these materials during the period from 1968 to 1972 that he has claimed. His initial employment as a telegram boy ceased in June 1969. He accepted that he had no exposure to asthmagenic substances during that period of employment. His next employment with Telstra was for 11 months between July 1970 and July 1971 and then from October 1971 to April 1973[10], in both instances in “the Lines Section”. Whilst we do not accept the submissions by Telstra[11] and Comcare[12] that Mr Baker was not employed in any “Lines” capacity during the whole of this period, it is certainly the case that the period of relevant employment was significantly less than that claimed by Mr Baker.
[10]Exhibit 2, page 297.
[11] Exhibit 75, paragraph 15.
[12] Exhibit 76, paragraph 18.
23.Mr Baker’s affidavit describes his next period of employment as that of linesman “from about 1973 to 1978”. The text of his affidavit gives details of the extent of exposures during that period. The Telstra employment records show that during this period Mr Baker was employed between July 1973 and January 1975, a period of about 18 months, and that he rejoined Telstra as a temporary lines assistant at the Nundah depot in May 1976. That temporary position was made permanent in November 1978. Despite that classification it is apparent from the employment documents that from 1978, probably early 1978, Mr Baker was working at the District Store and that his duties there did not involve the activities of a lines assistant. Documents from that time describe him in the stores role as spending “approximately 20% of his time outdoors”.
24.Again, Mr Baker’s affidavit considerably overstates the length of his service as a lines assistant, and thus the opportunity for exposures of the types attributed by him to that role, during the period from 1973 to 1978.
25.Between 1979 and 1983 Mr Baker says that he was working within the store in an essentially clerical capacity. His affidavit describes quite minimal opportunity for exposure to asthmagenic substances during that time, although it must be said that during his oral evidence he described considerably greater potential exposures. It would seem that he worked in the store until March 1984 when he commenced training as a linesman.
26.This training went from March 1984 to July 1985. Mr Baker’s affidavit does not suggest any exposures during this period; indeed he describes how masks were available to him whilst undergoing training.
27.Mr Baker describes the final period of his employment as that of cable jointer from about 1986 to 1989. The material demonstrates that any exposure ceased no later than February 1987 when Mr Baker went on sick leave as a consequence of an accident in January 1987. Mr Baker’s employment with Telstra ceased when he was retrenched in September 1988.
28.It is to be borne in mind that Mr Baker was attempting to recall dates up to 40 years after the event and we should not be critical of Mr Baker if he has difficulties in doing so. But our concern is that Mr Baker’s affidavit does not suggest that there was any doubt or uncertainty about the dates which he set out and which are recorded in paragraph [20] above. Mr Baker’s affidavit does not contain any hint of equivocation about these matters where common sense suggests that, in the absence of documents, he cannot have been doing other than making an estimate of the years of his employment with Telstra. His failure to do so strongly suggests that Mr Baker was, at best, reckless in giving this detail in his affidavit.
29.But what emerges is that Mr Baker did not work for Telstra for 24 years exposed to the asthmagenic agents of which he complains but for a far shorter period, probably in the order of eight years.
30.Importantly, the opinions of Dr Heiner, Dr Allen and Dr Larder were informed by similar histories, that is, of lengthy exposure to asthmagenic agents.
The history of chest complaints
31.Classically, the presence of one or more of wheezes, chest tightness, shortness of breath and cough are suggestive of asthma. The medical evidence was that the key to the distinction between occupational asthma and constitutional asthma is the existence of a close temporal relationship between the symptoms of asthma and exposure to asthmagenic agents. Dr Heiner, whose expertise in the area is undoubted, put the matter in this way:
“The symptoms of occupational asthma are identical to those of non-occupational asthma and, hence, the challenge is to understand the nature and degree of workplace exposures and to make a temporal association between the asthma and the occupation.”[13]
[13] Exhibit 19, page 4.
32.Mr Baker’s case is that there was that temporal association; however, Telstra and Comcare submit that the association is not demonstrated by the objective evidence; they submit that the objective evidence demonstrates the absence of that association.
33.It will be recalled that Mr Baker’s employment with Telstra spanned the period from 1965 to 1988 and that his exposure to asthmagenic agents was, at best, in the period from 1971 to early 1978. The symptoms of which Mr Baker complains are shortness of breath, fatigue, chest tightness and recurring chest infections. His affidavit says that these symptoms began during his employment with Telstra and that during that employment he:
“went from being a very healthy and fit man to being short of breath and very prone to chest infections …
…
What I am certain of is that I had a chronic cough, constant wheezing and continuous chest colds and chest infections which began during my employment with Telstra and worsened during my employment with Telstra.”
34.Mr Baker says that, despite this history, he tried to avoid going to doctors but that when he did he was simply told of his coughing and wheezing that was “unlucky” and that he had “flu and cold like symptoms”.
35.Mr Baker first saw Dr Heiner in July 2004. According to Dr Heiner, Mr Baker reported having first developed respiratory symptoms “in the 1960s”. Dr Heiner recorded the history given to him in these terms:
“Soon after working for PMG (later Telstra) he noted that he started to develop respiratory symptoms. These first symptoms were mainly coughing when exposed to dust and the products of soldering and the inhalation of gases and other chemicals that he was exposed to in buildings, manholes and when constructing pits.
…
The coughing was soon associated with tightness of the chest and shortness of breath. He then developed chest colds each and every time he developed a cold or a flu. The chest colds were frequently complicated by bronchitis and lasted for weeks. In fact, for the last 25 years he states that he has not been free of symptoms. He has not ever smoked, and has been taking various medications, the most recent of which have included Seretide and Becatide.”
36.This account is quite inconsistent with the records available from the time. The material before us included most, but not all, of Mr Baker’s sick-leave records. They do not demonstrate the pattern of illness reported to Dr Heiner, indeed they demonstrate that Mr Baker took sick leave for colds, flu and similarly described illnesses in line with what Dr Heiner described as the average. Those records show that generally Mr Baker had around two to three days per year sick leave for “influenza” and “severe cold”, “severe chest cold” and similar descriptions. The worst year was 1981 when he had six days leave. Importantly, the records show that on three occasions Mr Baker appears to have had two consecutive days leave, otherwise the duration of his sick leave was always for a single day or less.
37.There is no evidence from any of the doctors to whom Mr Baker complained but who, on his case, misdiagnosed him as having “flu and cold like symptoms”. There is a single reference in July 1987 to “bronchial asthma” (as Mr Baker reported it to Telstra’s occupational nurse) which had been brought on by swimming with a cold as part of a rehabilitation programme arising from the January 1987 incident. The detailed report from that programme is absent any reference to symptoms of the kind that Mr Baker says now that he was experiencing throughout his employment with Telstra.
38.What there is, and what appears significant to us, is the evidence leading up to the eventual diagnosis of occupational asthma by Dr Heiner in 2004.
39.Dr Andrew Springfield was Mr Baker’s general practitioner in early 2001. In January of that year he referred Mr Baker to see Dr Roger Allen, a thoracic and sleep disorders physician, for “further investigation of asbestos exposure and cough”. Dr Allen, to whom a possible diagnosis of asthma had been suggested, found that he “had normal flow volume loops”, a conclusion that told against a diagnosis of asthma as did a negative histamine provocation test. What emerges from Dr Allen’s reports is that the focus of Mr Baker’s concerns was his potential exposure to asbestos. The report contains no reference to exposure to other dusts, chemicals or gases.
40.Next, Mr Baker saw Dr Ian Brown, a chest physician, between May and October 2002. Dr Brown’s conclusions, in a report to Mr Baker’s solicitors, were expressed in this way:
“The clinical impression is of chronic bronchitis and asthma which is of late onset. The physiological measurements indicate a significant improvement in the level of airways obstruction but there is ongoing cough, sputum production and wheeze which are slower to settle. Although there are significant ongoing symptoms there is no significant ongoing impairment in terms of lung function or radiological studies. I do not believe that the current symptoms can be attributed to his asbestos exposure in the workplace.”
Again, the focus of the report is on the potential exposure to asbestos. There is only a passing reference to exposure to dust.
41.In December 2002 Mr Baker lodged a claim for compensation with Telstra for “continuous chest infections, shortness of breath, bronchitis and asthma, swollen lungs, wheezing cough, depression, psychological problems and sleeping difficulties”. Reference was made to “exposure to asbestos products and other unknown dust substances” during his employment. Eventually he was seen by Dr J L McKeon, a thoracic and sleep physician, in August 2003. The history given to Dr McKeon was recorded as follows:
“Chris has had recurrent chest tightness and wheezing for about 25 years. Asthma was diagnosed a couple of years ago. He is on Ventolin and Seretide for asthma. He has a cough productive of sputum which gets worse during respiratory infection. He thought that he had three to four episodes of prolonged cough and sputum during the year each year. He coughs up sputum for more than three months of the year each year. He has had episodes of haemoptysis [[14]] which started in about 1985 associated with episodes of acute bronchitis. He denied pneumonia. He denied hayfever or chronic rhinosinusitis.”
[14]Coughing up of blood.
Dr McKeon’s report excluded any occupational connection with his symptoms. His view was that the symptoms were consistent with chronic asthma, unlikely to be related to employment. Exposure to asbestos and dust is the focus of the report.
42.On the basis of that report Telstra rejected Mr Baker’s claim for compensation in December 2003. It was after that rejection that Mr Baker first referred to the potential of exposure to gases and other toxic substances. Those references were made when Mr Baker sought reconsideration of the decision in May 2004 after Mr Baker, with the assistance of the State Library,
had undertaken research into the causes of asthma and bronchitis.
43.After the earlier determination had been affirmed Mr Baker’s solicitors wrote to him regarding his prospects of success in a review of the decision in this Tribunal. They expressed the view that there was insufficient evidence to justify an application; however they noted that Dr Heiner’s name had been given to Mr Brown by his trade union. Dr Heiner, it was said, “might support a connection between your symptoms and your exposure to dust …”
44.The following month Mr Baker saw Dr Heiner and gave a history, seemingly for the first time, of exposure to dust and the products of soldering and the inhalation of gases and other chemicals. Informed very much by that history and Mr Baker’s account of his exposure to asthmagenic agents, Dr Heiner made a diagnosis of occupational asthma.
45.What emerges from this evidence is twofold – that such objective evidence as there is is inconsistent with the evidence of Mr Baker and the history given to Dr Heiner and that Mr Baker has not been a consistent historian. It is in that latter regard that we turn to the third contention raised by Telstra and Comcare.
The reporting of symptoms
46.The contention by Telstra and Comcare is that Mr Baker has a demonstrated pattern of providing untruthful or unreliable histories to medical practitioners in connection with other claims for compensation and the like. That pattern is said to be evident in relation to injuries said to have been sustained in an incident during his employment with Telstra in January 1987, the injuries said to have been sustained in the course of employment with the Queensland Department of Family Services commencing in 1993 and with injuries said to have been suffered in an accident on a bus in August 2001.
47.It seems clear enough that Mr Baker sustained an injury of some sort to his left knee in January 1987 while working for Telstra. His statutory declaration of 5 March 1987 records that he “banged [his] left knee” on a ladder as he was climbing out of a manhole. He did not report the accident at the time in order to preserve his section’s safety record. The injury became worse by 10 February 1987 by which time he was “experiencing low back pain from the heavy lifting and bending”. Mr Baker effectively ceased working for Telstra the following day.
48.The recounting by Mr Baker of this event and its consequences demonstrates significant changes in both the circumstances of the incident and its consequences.
49.In March 1987 Mr Baker completed an accident report which attributed the back pain to “twisted back while working with injured knee”. Then in May 1987 Mr Baker complained to Dr Dickinson, an orthopaedic surgeon, of low back pain “brought on because of awkwardness in bending and lifting as a result of his knee injury”.
50.Thereafter Mr Baker was examined by several medical practitioners in connection with a claim for compensation. In February 1988 Dr G N Askin reported having been consulted by Mr Baker a number of times in connection with his back pain. Dr Askin expressed the opinion that the back problem had “been aggravated by the incident that occurred at work when he slipped down the manhole …” In a report dated 14 December 1988 to Mr Baker’s then solicitors, Dr W B Maguire recorded this history from Mr Baker:
“He gives a history of a work accident in January, 1987, when he was climbing out of a man-hole and his boots slipped and his left knee struck the man-hole laddering.
He states that he fell approximately four and a half feet to the ground.”
51.A similar history was recorded by Dr J R Curtis in a report arising from an examination on 3 April 1990. The following month he saw Mr Salzman, a psychologist, who recorded a history that Mr Baker “slipped on a rung hitting his knee and back” and that at the same time “he felt a ‘twang’ in his back”. Finally, we note that in a letter to Telstra in January 1992 Mr Baker described how he had slipped and fallen four and a half feet when climbing down a manhole resulting in jarring to his back.
52.In the course of these medical examinations accounts were recorded of Mr Baker’s past medical history. On the account given to us by Mr Baker he had “a chronic cough, constant wheezing and continuous chest colds and chest infections” at the time of ceasing his employment with Telstra. He told Dr Larder that whilst employed at Telstra he “always seemed to be ill”. This is significantly at odds with the histories recorded by medical practitioners and the like consulted by Mr Baker in connection with his 1987 back injury.
53.Dr Maguire reported “Nothing significant” by way of past medical history and that Mr Baker had previously played cricket and table tennis but had been unable to do so since his accident in January 1987. Dr Enno Taemets, a psychiatrist, recorded Mr Baker’s description of himself as “an outgoing individual who enjoyed sports” and who described his physical health, apart from the claimed symptoms from the back complaint, as “quite good”. Dr Curtis noted that Mr Baker was “unable to resume playing social cricket, gardening and table tennis”.
54.Ms Helen Coles, an occupational therapist, who saw Mr Baker in March 1990, noted Mr Baker saying that:
“his previous interests included sporting, leisure and family activities, and he was very fit and active.
…
He said that he has not suffered from any previous relevant medical conditions.
…
He said he played social cricket and table tennis.
He stated that he had a social life made up of family activities including beach outings, drives, going to the park, fishing, picnics and friend group activities including playing cards and fishing.
He said that his hobby pursuits included repainting and remodelling his house, going to the races, gardening, going out to dinner and dancing.”
55.We have, as well, a report from Mr Derek Rintel, an occupational therapist employed by the Commonwealth Employment Service, who recorded Mr Baker as saying that he “enjoyed perfect health until his accident in January[[15]] 1987”. When that report was put to Mr Baker in the course of cross-examination he said that he had never seen the report. That denial was plainly false given that in January 1992 Mr Baker forwarded a copy of the report (and of the reports of Dr Askin, Dr Curtis, Mr Salzman and Ms Coles) to Telstra in support of a claim for an ex gratia payment. That letter makes explicit reference to a passage from the report of Mr Rintel.
[15]“June 1987” appears in typescript in the report but June has been crossed out in ink and replaced by January.
56.Three things emerge from these matters:
(a)Mr Baker’s recounting of the circumstances of the January 1987 incident changes from one where there were no back symptoms, through to the back symptoms arising as a consequence of the knee injury, to a direct jarring of the back and from an incident in which he struck his knee to one where he fell backwards a distance of four and a half feet down the manhole. Shortly put, the account given to explain symptoms of pain in the back changed significantly over time;
(b)Mr Baker’s accounts of his previous medical and social histories are entirely inconsistent with the evidence he now gives, and the history given by him to Dr Heiner and Dr Larder. The picture painted prior to the accident in January 1987 is of a fit and active person with an active social and sporting life, yet on Mr Baker’s account now he was short of breath and prone to chest infections which lasted for weeks;
(c)Mr Baker attributed all that ailed him at the time to the claimed back injury suffered in January 1987.
57.A similar pattern emerges from the reports and other material prepared in connection with the injuries said to have been suffered whilst employed in the Department of Family Services.
58.In April 1994 Mr Baker completed a claim form seeking compensation for a condition described as “accumulative stress syndrome”. In May 1994 he was seen by Mr Peter Egan, a clinical psychologist, who recorded him as reporting:
“sleep and memory disturbance with marked anxiety and irritability, reduced appetite and a sense of helplessness”.
Mr Egan noted Mr Baker as stating that:
“he had no previous history of depression or anxiety states and found his current mental state confusing and concerning …”
59.The claim form records Mr Baker as not having previously suffered from any similar injury or condition.
60.Yet in May 1989 Mr Baker had reported to Dr Taemets that:
“over the past two years, he has been rather moody, angry, he has had trouble sleeping at night, suffers with episodes of depression…”
Similar histories had been given to Mr Salzman, attributing the “irritability, anger and depression” to the claimed back injury.
61.When taxed in cross-examination about the detail in the claim form Mr Baker explained that he “may have just ticked the wrong box”. Without more, that might have been an explanation for the claim form but no similar explanation is available in relation to his statement to Mr Egan that he had no previous history of the symptoms complained of by him in May 1994. Mr Baker said of this that he had not told any “deliberate lies”; however it is impossible to see it as anything else.
62.Mr Baker commenced proceedings against the State of Queensland for personal injuries and other losses suffered in the course of his employment. He pleaded, in his particulars of personal injury, that he had developed post-traumatic stress disorder with a concurrent depressed mood as a consequence of events in his employment. On 26 November 1998 he swore answers to interrogatories delivered on behalf of the defendant in those proceedings. Materially, he swore:
(a)that to the best of his recollection, prior to May 1993, he had been in good health during the previous 10 years, “apart from the usual coughs, colds and flus [sic] and other minor medical concerns”;
(b)that immediately prior to May 1993 he would consider his general health to have been reasonably normal;
(c)that prior to suffering the injuries subject of that claim he used to enjoy debating, socialising, playing cards with friends and fishing, among other things, none of which he could any longer do.
No mention was made in the answers to interrogatories, or in Mr Baker’s Statement of Loss and Damage filed in connection with the proceedings, of the previous treatment for irritability, anger and depression. We are unable to accept as truthful Mr Baker’s explanation that his answers about “usual coughs” etc meant usual for him. In the context in which the interrogatories were delivered and answered “usual” was intended to be regarded objectively, not subjectively. But the point, particularly in relation to this answer, is that it is a sworn account quite to the contrary of the history given to Dr Heiner and Dr Larder and to the contrary of the evidence given to us. As it happens, the notion that Mr Baker suffered only the “usual” number of these ailments is borne out by the sick leave records referred to in paragraph [36] above.
63.Importantly, there is no reference in the reports or other material of the debilitating pain or the psychiatric conditions arising from the January 1987 incident. It seems impossible to conclude that that omission is attributable to anything other than Mr Baker providing a selective and tailored history.
64.The third of the incidents occurred in August 2001 when Mr Baker was a passenger in a bus that started off before he had had a chance to take his seat. He consulted solicitors in relation to claimed injuries to his right leg and neck. Those solicitors sent him to see Dr Scott Campbell, a neurosurgeon, and Dr Andrew Byth, a psychiatrist. Additionally, the insurer had Mr Baker examined by Dr Peter Steadman, an orthopaedic surgeon, and by Dr Jill Reddan, a psychiatrist.
65.Dr Campbell recorded Mr Baker’s “social history” in these terms:
“Previous to the bus accident Mr Baker enjoyed playing table tennis and taking long drives and bush walks. He has not played table tennis since the accident for fear of aggravating the pain. He has attempted to drive long distances and bush walk once each but pulled up sore and has not tried since.”
Dr Steadman reported that Mr Baker denied “significant past medical history”.
66.What seems to us to be of greater significance is the recording by Dr Byth of Mr Baker’s past psychiatric history. It is not necessary to set it out in detail; it will suffice to note that no mention is made of the very significant earlier problems with depression said to have afflicted him in the two years prior to May 1989, nor of the “accumulative stress syndrome” said to have occurred in 1994. Reference is made to treatment with anti-depressants in 1989 but the cause is attributed to the breakup of a personal relationship. Similarly, reference is made to a recurrence of depression in 1998 but that was attributed to a medical condition, not the events said in 1994 to have caused him “accumulative stress syndrome”. Dr Byth, however, notes that at the time of the bus incident in August 2001, Mr Baker “was no longer taking antidepressants, was studying well, and leading an active sporting and social life”.
67.Dr Byth recorded Mr Baker’s hobbies prior to the August 2001 incident as “swimming, going to the beach, square dancing and fishing”. He was said, as well, to have enjoyed “weightlifting, socialising and attending the cinema”. He could no longer follow these activities, he told Dr Byth, because of his neck and back pain.
68.Dr Reddan saw Mr Baker in October 2003. She noted:
“Mr Baker reported that he has had a life long aversion to taking tablets and attending doctors, as he experiences significant anxiety and trepidation going to doctors. He stated that his asthma is currently under reasonable control with the use of the inhalers.”
Dr Reddan’s report suggests that no mention was made to her of the claimed back injury in 1987 or the claimed assaults in 1993 and 1994 or of the psychological consequences said to have arisen from these events.
69.The account of Mr Baker’s health given to Dr Reddan is to be contrasted with the history recorded only two months earlier by Dr McKeon in the terms set out in paragraph [41] above. It is also to be contrasted with the history given to Dr Heiner in July 2004 set out in paragraph [35] above.
Our impressions of mr baker
70.We accept that Mr Baker may have found the task of giving evidence somewhat daunting and that the lengthy cross-examination by two experienced leading counsel was likely to have been stressful. But even after making allowances for these difficulties we were left with considerable concerns when observing Mr Baker give his evidence. Frequently his answers were non-responsive; frequently he was argumentative, that is, wanting to give an answer that was both non-responsive and suited the case he wanted to make out; frequently he appeared unwilling to answer simply quite simple questions, particularly in circumstances where the answer, when finally given, put his evidence in an unfavourable light.
71.The evidence given by Mr Baker regarding his dealings with the psychologist Mr Rintel provides a good example. When Mr Baker was initially asked whether he recalled seeing Mr Rintel around August 1997 he said, “the name is familiar but I don’t recall the actual appointment”. Without any prevarication or hesitation he denied having ever seen a report from Mr Rintel. “I have never seen a copy of any report” he said. When he was again asked whether he recalled attending upon Mr Rintel he chose not to answer that question, instead he responded by saying “as requested by Centrelink”.
72.Then when shown Mr Rintel’s report and the reference in it to him having enjoyed “perfect health until [the] accident in January 1987” he said:
“I don’t recall the actual conversation but I thought he was talking about, you know, general health. Any sort of serious things, you know. At that stage, you know, coughs, colds and chest infections to me wasn’t a serious affliction at that time.”
There is, of course, an inherent contradiction in that answer – if Mr Baker did not recall the actual conversation then seemingly he ought not be able to recall what he thought Mr Rintel was asking about. But what is of similar significance is the subsequent cross-examination of Mr Baker that demonstrated, contrary to his denial, that he must have had possession of the report from Mr Rintel and that a passage from it was extracted in his letter to Telstra seeking an ex gratia payment.
73.These, and many similar instances during Mr Baker’s evidence, made an unfavourable impression upon us.
Our conclusions
74.We are then left well short of being satisfied that we could rely upon Mr Baker’s evidence or upon histories that informed the opinions of Dr Heiner, Dr Allen and Dr Larder. The analysis above demonstrates the following:
(a)on the most charitable view open Mr Baker was reckless in swearing to his account of the history of his exposure to asthmagenic agents;
(b)there is no contemporaneous evidence to support the history of symptoms that Mr Baker says existed; what evidence there is points to the contrary conclusion;
(c)time and time again Mr Baker gave accounts, including sworn accounts, of his medical history that is diametrically opposed to the account he now gives;
(d)additionally, there is a demonstrated tendency on the part of Mr Baker to attribute his symptoms, then said to be current, to the complaint then being made.
75.It is not necessary for us to determine whether, as Telstra and Comcare submit, Mr Baker was an untruthful (rather than merely an unreliable) historian. It will suffice to say that the pattern that emerges from the reports prepared in connection with earlier claims strongly supports the contention that the earlier reporting of symptoms and history was demonstrably false and knowingly so. There is reason to conclude that that pattern has been repeated in the present case.
76.In these circumstances we are not able to be satisfied of the reliability of the opinions of Dr Heiner, Dr Allen and Dr Larder because we are not satisfied that the histories that informed their opinions were reliable. Thus we are left in the position that we are not satisfied that Mr Baker suffers from occupational asthma, nor are we satisfied that his psychiatric condition, as reported on by Dr Larder, was materially contributed to by his employment with Telstra.
77.Having reached those conclusions we find some comfort in the fact that Dr McKeon and Dr Brown, and Dr Allen in his earliest reports, each reach a similar conclusion informed by histories much more closely aligned with the contemporaneous records.
78.We should also add that we have reached these conclusions without regard to the report of Lee Beames dated 3 September 1997, the reports of Dr Martin Nothling dated 9 August 1994 and 30 November 1994 and the sets of Mr Baker’s clinical notes on which the question of admissibility was reserved. That material was, at best, of marginal relevance and would not, in any event, add anything to our conclusions about Mr Baker’s reliability. We reject the tender of those documents.
The alternative psychiatric case
79.In the course of her closing submission Ms Frizelle, counsel for Mr Baker articulated for the first time a case based upon the contention that Mr Baker’s psychiatric condition was caused by a fear that he may contract, or may have already contracted, an asbestos-related illness arising from his exposure to asbestos during his employment with Telstra. Counsel for Telstra and Comcare objected to that contention being raised at that time.
80.We will not permit Mr Baker to seek to put his case in this way. We do so for two reasons – because the case has not been put in this way at any time prior to closing submissions and because the case lacks any adequate evidentiary foundation.
81.As to the first of these matters it is undoubtedly the case that exposure to asbestos has always been a feature of Mr Baker’s case. But the psychiatric case has never been articulated as being one where the potential for contracting asbestos-related illnesses was the cause of Mr Baker’s psychiatric condition. The case that was put throughout is well summed up by the question posed to Dr Larder by Mr Baker’s solicitors in these terms:
“Whether in your opinion Mr Baker’s psychiatric condition was caused by or exacerbated by his exposure to dust in the workplace or his diagnosis or symptoms of occupational asthma being continuous chest infections, shortness of breath, bronchitis, swollen lungs, wheezing, coughing and sleeping difficulties.”
It was that question that Dr Larder answered and it was Dr Larder’s answer to that question that formed the basis of Mr Baker’s case as articulated in his statement of facts and contentions and as opened.
82.The alternative case was not articulated until closing addresses. To allow Mr Baker to rely upon it after all the psychiatric evidence had been given would be unfair to Telstra and to Comcare. We note, in that regard, that no application was made by Mr Baker to recall Dr Larder to allow the alternative case to be considered by him.
83.But in any event, and likely as a consequence of the fact that the alternative case was never part of the case advanced by Mr Baker, we would reject the alternative case as being unsupported by any evidence. At its highest, the evidence points to Mr Baker being “worried” as to the possible consequences from exposure to asbestos. But as Drummond J explained in Comcare v Mooi[16] what needs to be demonstrated is a condition “outside the boundaries of normal mental functioning and behaviour”.
[16] (1996) 69 FCR 439.
84.Apart from Mr Baker’s own articulation of his emotional responses, the totality of medical opinion on the point appears to be the following exchange in the evidence-in-chief of Dr Larder:
“Doctor, can you confirm or deny whether or not during the latest consultation with Mr Baker there was any reference in relation to – being his exposure to the asbestos products and dust and the like if that also was in your first report ?‑‑‑Yes. On 12 September 2008 I asked Mr Baker if any of the doctors had diagnosed him or told him that he has asbestos disease. I should say at that point that he had been talking to me about a long list of documents he had. He said, “I’ve been exposed to epoxy resin products, PVC solvents”, and he went on for about 20 lines telling me all the things he had been exposed to and where and so on. But I asked him, when he said
We used to cut asbestos pits on windy days, we were never given any goggles or masks.
I asked him:
“Well, have you been diagnosed with any asbestos disease?
He said:
No, I don’t have mesothelioma because the doctor says and this is one of the things that really worries me, it could take up to 30 years before it comes out.
He said:
Just because I don’t have it right now that doesn’t mean to say in five or 10 years time it won’t turn into that.
Then got another report from someone high up in Telstra he says and started telling me about – he says:
This report talks about Telstra’s lack of safety practices and none of the safety equipment was available for us to use.
So that was the reference after a long history given to me by Mr Baker about his chemical exposures, where he actually talks specifically about asbestos. He told me he was worried about getting mesothelioma.
What impact would that have long-term in relation to his psychiatric condition?‑‑‑Well, it’s another straw, if you like, that can contribute to stressing the camel’s back, as they say. To what extent, given all the other issues that are on his mind and worrying him and so on, I cannot say for sure. But I wouldn’t discount it as being one of the issues that will bother him from time to time.”
85.Some reliance is placed upon the report of Dr Leong, however the passage relied upon appears to be no more than Dr Leong’s recording of Mr Baker’s complaints. Dr Leong’s conclusion seems to us to be quite plainly against the existence of any connection between Mr Baker’s condition and his employment, however that connection is sought to be drawn. Dr Heiner records, as the fact, that Mr Baker was worried about long-term exposure to asbestos. That falls well short of being a medical opinion about a state of mind “outside the boundaries of normal mental functioning and behaviour”.
86.For this reason as well we would reject the late attempt to pursue the alternative case.
Conclusion
87.It follows that we would affirm the decisions under review.
I certify that the preceding 87 paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member
Signed: ......................Signed.............................................
Jacqueline Woods, AssociateDates of Hearing 29 & 30 September 2008, 1, 2, 3, 6, 9, 10 & 31 October 2008
Last submissions received 13 November 2008
Date of Decision 19 December 2008
Counsel for the applicant Ms A Frizelle
Solicitors for the applicant Turner Freeman
Counsel for the Telstra Mr P D Elliott QC and Mr M Carey
Solicitors for Telstra Sparke Helmore
Counsel for Comcare Mr T Howe QC
Solicitors for Comcare Australian Government Solicitor
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