Bannerman and Comcare
[2010] AATA 678
•8 September 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: A 200700010
General Administrative Division )
Re: William Bannerman
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Professor RM Creyke, Senior Member
DATE: 10 September 2010
PLACE: Canberra
DIRECTION:
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application. The reference in paragraph 82 to ’24 October 2004’ should read ’24 October 2003’.
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Professor RM Creyke, Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 678
ADMINISTRATIVE APPEALS TRIBUNAL ) No A 200700010
)
GENERAL ADMINISTRATIVE DIVISION )
Re WILLIAM BANNERMAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member
Dr M Miller AO, Member
Date8 September 2010
PlaceCanberra
Decision The decision under review, the Respondent’s rejection of liability for the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), is affirmed.
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Professor RM Creyke, Presiding Member
CATCHWORDS
COMPENSATION – section 14 liability – nature and diagnosis of Applicant’s conditions – whether ‘excessive work and travel’ in employment - whether Applicant’s condition was materially contributed to by employment – whether impairment or incapacity as a result of condition
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 7(4), 14(1)
Comcare v Mooi (1996) 69 FCR at 444
Comcare v Sahu-Khan (2007) 156 FCR 536
Re Albanese and Comcare [2004] AATA 768
Wiegand and Comcare [2002] FCA 1462
8 September 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member
Dr M Miller AO, Member
1. Mr William Bannerman was employed between 2000 and 2008 by the Defence Materiel Organisation (DMO), an organisation within the Department of Defence (the Department), as a technical project officer.
2. On 28 September 2005 he made a workers’ compensation claim for ‘vertigo – presumed viral labyrinthitis’ which he claimed was caused by excessive work and travel. He later extended the claim to include a ‘stress’ condition, or anxiety.
3. His claim was rejected in a decision of 19 December 2005, a decision upheld on review on 12 December 2006.
4. On 12 January 2007 Mr Bannerman sought review of that decision by the Tribunal.
Issues
5. The following issues were identified:
·From what conditions did Mr Bannerman suffer?
·Whether Mr Bannerman suffered a ‘disease’ and hence an ‘injury’ within the meaning of section 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act)?
·If so, whether any conditions suffered by Mr Bannerman were materially contributed to by his employment with the Department?
·Whether Mr Bannerman suffered any impairment or incapacity for work as a result of his conditions?
·Whether Comcare is liable to pay compensation for the ‘injury’ under section 14 of the Act.
Background
6. Mr Bannerman was employed as a technical project officer by the Department at the relevant times. He joined the Land 75 Battlefield Command System Project Office in September 2000 in the Hardware Development Team. As part of his duties as a project officer he was required to travel to monitor Department of Defence hardware development projects. Prior to this position, Mr Bannerman had done an apprenticeship in structural engineering for a number of years and completed three of four years of his Bachelor of Engineering in Electronics and Communications.
7. Mr Bannerman said that in August 2003, due to staff shortages, he was doing the work of four people. Officially the Hardware Development Team was headed by an Army major with engineering qualifications, together with three civilians who were Australian Public Service Level 6 (APS 6) officers. One of the civilians was competent in technical work; another was responsible for network issues. Mr Bannerman was involved with upgrading the hardware for the electrical equipment used in Army vehicles. During 2002, the team lost a civilian staff member who was not replaced. In April 2003, the Army Project Manager was posted and was not replaced until January 2004. In August 2003, the last member of the team was promoted and left, leaving Mr Bannerman as the only remaining team member of the Hardware Development section.
8. As a result, Mr Bannerman said his workload increased and became unmanageable from August 2003. He said he was expected to be technical leader, business manager, to deal with training, and to work with senior management for the first time. He claimed that some of the technical networking tasks, such as writing tender documents and revising templates for an upcoming contract, were outside his expertise and that he requested training, which was denied. He said in evidence that he asked continuously for additional staff during 2003. He also asked the Systems Engineering Manager, Mr Konstanty (Stan) Pasturczak, for Additional Responsibility Pay during this period if he was to be involved in drafting the contracts for the hardware. Mr Pasturczak refused the request and told Mr Bannerman to just ‘do what you can’. Mr Pasturczak then gave the contract documentation task to the Professional Service Providers.
9. Mr Bannerman’s responsibility was to ensure that the hardware incorporated into Command Posts, armoured vehicles and support vehicles was suitable for safe and secure communication with the central Army system. This was technical work and required co-ordination with the Army over testing of products. He was also involved in the process of ensuring the technical integrity of its land materiel in accordance with TRAMM–L (Technical Regulation of ADF Materiel Manual – Land). This accreditation system was introduced formally in mid 2003, although informally it had been in operation earlier. As an aspect of that accreditation process, Mr Bannerman had to ensure that the specifications for the hardware were ‘fit for purpose’.
10. At this time, Mr Bannerman also occasionally clashed with Mr Pasturczak over technical issues. In particular, Mr Bannerman disagreed with the reappointment, against his recommendation, of the chief supplier company for hardware relating to the Land 75 Project. Mr Bannerman had lobbied for the firm not to be reappointed since he believed the firm’s failure to deliver was causing frustrating delays. He also said Mr Pasturczak excluded him from meetings, refused to accept his ‘message’ that the supplier company should not have its contract renewed with Defence, and that the excessive work and travel caused his symptoms.
11. Mr Bannerman said as a consequence of his workload and the staff shortages he became tired, rundown and got sick. He had recurring flu like symptoms for three weeks in April 2003, viral illness for four days in July 2003, and influenza for ten days in September 2003. From October 2003 he became incapable of travelling by road or air due to vertigo symptoms and nausea. Mr Bannerman said in the second half of 2003 his blood pressure increased and remained high for several months until December 2003. He was also concerned about a possible heart problem and that he might have giardia. At that time, he was also suffering nausea, vertigo, stomach problems and diarrhoea.
12. Mr Bannerman tried to go to Sydney at Christmas 2003 but became very ill with nausea, and was unable to eat, talk, or rest. He had to visit the emergency department at The Canberra Hospital just after Christmas. Mr Bannerman said his symptoms occurred with ’no fixed pattern or duration’. He also said they were aggravated by ‘any movement, heat, stuffy air’, and when there was a ‘limited horizon’, for example, during night driving, or on rainy or foggy days.
13. Nonetheless, during 2003 and early 2004 he continued to work, with periods of leave. His work conditions improved with the arrival in January 2004 of the new Army major in charge of his team and a new project director, Major Toohey. However, his vertigo condition deteriorated in the first half of 2005 and by July 2005 he emailed his supervisors to say that his ‘illness has continued with a vengeance, so much so that I cannot guarantee my ability to attend work or even log in from home for any day, or part thereof’ and that he was only managing ‘40% of normal working hours’.At that point, since he had run out of leave, he said he was seeking a Medical Case Manager. His situation began to improve at that point and, by 17 May 2006, he noted that his condition ‘seems to be easing’.
14. In July 2005, Mr Bannerman sought permission to do home-based work. Dr Alan Cowan, his treating general practitioner, provided a medical certificate in support on 5 July 2005. On 2 August 2006 his house was inspected for security, occupational health and safety, and general suitability and was found not to be satisfactory. Mr Bannerman then had one young child and was told he needed to have child care when he was working at home.
15. Defence policy required the person involved in home based work to spend at least 2/5 of their usual weekly hours of duty at the office and Mr Bannerman by then was limited, on medical grounds, to working at the office four hours per week. Accordingly he could only do 1 hour and 36 minutes a week at home and this had insufficient benefits for management, given the resources required to establish a home-based work environment. Accordingly, Mr Pasturczak said he could no longer support Mr Bannerman doing home based work because the project was time critical and required travel.
16. An Initial Needs Assessment Report by Ms Sally Cole of Lisa Castles & Associates, dated 22 December 2005, recommended ‘rehabilitation intervention … once home based work opportunities have been identified by the employer’. The symptoms identified as disabling were nausea, dizziness, and intermittent sinus problems.
17. At the hearing, Mr Bannerman was asked why it was not until mid-2005 that he attributed his vertigo to work. His response was that the ear, nose and throat specialists whom he had consulted said that the condition could disappear within a few months, and it was only when those deadlines had passed that he began to search for other causes.
18. Mr Bannerman lodged a workers’ compensation claim on 28 September 2005. The claim was rejected by Comcare on 19 December 2005. In his request for reconsideration of the initial Comcare decision dated 20 July 2006 Mr Bannerman expanded his claim to include a stress disorder. Evidence of work pressures was apparent in Dr Knox’s report of Mr Bannerman saying he was ‘angry and hurt’ because of workplace issues relating to the reappointment of a hardware supplier which had not performed satisfactorily, and the extra travel and workload which he told Dr Knox meant ‘My health began to fall apart’.
19. Mr Bannerman said in evidence that he had previously been healthy, was sociable, rode a motorcycle, had a boat, and was involved in other sports. So when he became ill continually with a condition for which there seemed to be no effective treatment, these health problems, as Dr Gertler reported him saying, ‘scared the hell out of him’. Mr Bannerman confirmed this at the hearing. Mr Bannerman said his father had died in his early 60s and the health problems he, Mr Bannerman, was experiencing in 2003 to 2005 led him to become very anxious about his own health. In evidence he said he was sure he told his then supervisor, Mr Pasturczak, that the reason he was taking time off was because he was stressed.
20. Mr Bannerman’s attendance records show that in the 12 months from 1 April 2003 until 1 April 2004 he worked 19 times for 8.5 hours or more in a single day. The Tribunal notes that standard public service hours are 7.5 hours per day. Hours worked in addition to the standard hours accrue as ‘flex’ time, which can be accessed at a later time to take paid time off work, provided there are sufficient flex credits and managerial approval. The Tribunal also notes that Mr Bannerman’s flex records show he worked, on average, less than the standard 7.5 hours per day. He did travel on weekends and outside normal working hours on a number of occasions in this period.
21. A report dated 15 November 2006 by Mr Geoff McVeigh, an officer in Defence Materiel Organisation to Lieutenant Michael Toohey, Project Director of the Land 75 Project, in response to Mr Bannerman’s request for reconsideration, did not recommend upholding his claim and objected to Mr Bannerman changing the claimed illness to include a stress claim ‘without medical support’.
22. On 15 November 2006 Mr Bannerman also brought a harassment claim against Mr Pasturczak claiming he had been bullied. A ‘quick assessment’ was conducted in response to the claim which found no evidence of harassment. Mr McVeigh, in his report, expressed the opinion that Mr Bannerman’s harassment claim was in response to Mr Pasturczak commenting that Mr Bannerman was not subjected to excess work demands or travel requirements.
23. Mr Bannerman was asked at the hearing why there was no claim for stress until after his claim for vertigo had initially been rejected on 19 December 2005. In response he said that he had ‘misconstrued the intent of components within the Comcare Claim Form’, that the wording was provided by his GP, and that he intended ‘fatigue’ to indicate ‘stress’.. He also said that there was medical evidence that all the symptoms referred to in that initial application, including vertigo, high blood pressure and bowel problems had been medically attributed to stress. At the hearing he said initially he did not know his conditions could be stress-related which was why he had not mentioned stress in his explanations for absences to Mr Pasturczak.
24. Mr Bannerman’s performance reports until February 2003 were uniformly good. However, the report for the six months to February 2004 records him ‘not demonstrating a clear understanding of APS values and assurance’ and that he would need to review his ‘career training and direction’ and for there to be revisions of his Key Expected Results (KERs).
25. A report from Ms Altair Isdale, a former Major and Mr Bannerman’s supervisor from August 2001 to April 2003, noted his technical competence and that his ‘ethical standards were exemplary’. She said that he was ‘required to travel more than the other team members’ but that his workload ‘was no greater than the other members of my team’.
26. Major Ian McDonagh was Mr Bannerman’s supervisor throughout 2004 and became a personal friend. His report, dated 22 September 2006, noted Mr Bannerman’s technical expertise, that he was the expert on certain aspects of the hardware project, and that his work ethic was high. He said that Mr Bannerman was ‘forthright and technically precise’. In relation to workload, he said ‘the Hardware section was vastly under manned, the tempo was high and the changes due to the new Army Regulatory Framework were complex and made for a demanding time’. These changes, although before his arrival, would he said, ‘have been very stressful for any one staff member’.
27. Mr Bannerman had tried rehabilitation and a graduated return to work in 2006 but this was not successful. Following the refusal of home based work, Mr Bannerman effectively ceased working for Defence on 11 October 2006. Following his cessation of work, Mr Bannerman initially claimed to be on long service leave, but eventually his leave ran out.
28. Around this time Mr Bannerman was investigated for a breach of the APS Code of Conduct. He fought those charges until 2008, including in an action at the Australian Industrial Relations Commission, which he terminated prior to the case being concluded. In October 2008 his employment with Defence was formally terminated. He has not worked since.
Medical evidence
29. Dr Peter Fletcher, a locum at Mr Bannerman’s local practice, said he had seen Mr Bannerman on several occasions between 24 October 2003 and 13 February 2004. In his 24 October 2003 clinical records, Dr Fletcher notes that Mr Bannerman ‘has a lot of pressure in his job causing various aches in the body, nausea, loss of concentration, disturbed sleep and some marital pressure’. His blood pressure reading at the time was high, at 165/100. He said Mr Bannerman’s symptoms ‘didn’t fit with any one condition’ and he noted in his hand written report of 26 August 2006 that it was likely that they ‘were psychosomatic and related to stressful conditions at work’.
30. Dr Fletcher’s reports referred to dizziness, vertigo and nausea. His clinical notes showed Mr Bannerman as suffering hypertension problems until at least February 2004. In February 2004, there is a reference to dizziness and in October 2003, to nausea. Dr Fletcher also suggested he may have had symptoms of giardia. His notes on 5 December 2003 say that Mr Bannerman ‘has sorted things out at work’ and on 9 January 2004, ‘No stress at present’ but that nausea ‘has persisted’. An attempt to travel for work in March 2004 resulted in extreme nausea and time off work.
31. On 26 August 2006, Dr Fletcher, reported that Mr Bannerman ‘was having issues at work’ and since he ‘did not respond to the usual treatments’ for his symptoms, ‘I did advise him at that time to try to find ways to resolve the workplace issues’. In a further report dated 4 July 2010 Dr Fletcher said that Mr Bannerman’s elevated blood pressure at the time he saw him ‘seemed to be independent of whether or not he had stress at the time’. He also said ‘To my knowledge, vertigo is not caused by stress’, and that ‘it would appear that the relationship between his symptoms and reported work stress is not established’.
32. At the hearing, Dr Fletcher noted that ‘stress’ was not a medical diagnosis but a term used by patients. He confirmed that he would never make a diagnosis of ‘stress’ on a first consultation since the diagnosis depended on observation over a period of time. He said that he was not confident that his report of these events on 26 August 2006 was necessarily correct since he did not have access to his clinical notes at the time he wrote it and the references to ‘work pressures’ were as reported to him by Mr Bannerman. He also said that Mr Bannerman’s hypertension appeared to be of the ‘essential’, not ‘reactive’ variety. He concluded his evidence by saying that in his opinion Mr Bannerman’s health problems were not due to his employment.
33. A diagnosis of ‘? viral labyrinthitis’ was first made at the emergency department at The Canberra Hospital on 10 January 2004. The Hospital noted on that occasion that Mr Bannerman said he had been suffering from nausea and vertigo for over two months. Mr Bannerman was referred by the Hospital to its ear, nose and throat clinic. The clinic reported possible viral labyrinthitis and/or early Meniere’s disease. Sally Cole, from Lisa Castles and Associates, rehabilitation consultants, also reported that Mr Bannerman said his symptoms were ‘first noticed in September 2003’.
34. Dr Roger Tuck, consultant neurologist, reported to Dr Cowan on 29 March 2004 that Mr Bannerman’s general examination was ‘unremarkable’.He added ‘I doubt that the problem is primarily neurological’ but his symptoms ‘suggest a vestibular problem’. He reported Mr Bannerman as saying ‘he had been “anal” about his health since his father died at an early age, and he has an annual checkup’.
35. Dr Alan Cowan, Mr Bannerman’s general practitioner, provided a report on 13 December 2005, and stated he could not improve on the diagnosis of ‘vertigo, presumed viral labyrinthitis’ but pointed out that this was a ‘diagnosis of exclusion’. In his view the diagnosis remained ‘presumptive but “unproven”’. The report said that vertigo started in October 2003 and has persisted and Dr Cowan was not able to provide how long the symptoms would continue. In his opinion, it would be possible, if a person was ‘working unreasonably long hours’, for the person to be more susceptible to infections. He noted that Mr Bannerman claimed that his travel for work induced his vertigo and nausea.
36. His clinical notes during 2004 and 2005 show Dr Cowan trying various medications for Mr Bannerman’s conditions, particularly the nausea, vertigo, elevated blood pressure, and diarrhoea. He also referred Mr Bannerman for CAT (computer axial tomography) scans and for an MRI (magnetic resonance imaging). In the context of the presumed diagnosis of viral labyrinthitis, there is a comment from him that ‘It is odd’ that there was no tinnitus or hearing loss, nor sufficient indicators for Meniere’s disease.
37. On 15 March 2005, his notes say ‘Has recurrent vertigo and nausea for 17 months’. There is a reference to ‘Very upset about work arguments’ on 13 October 2006. On 1 November 2006, he noted Mr Bannerman’s blood pressure was ‘good on the whole’… but ‘quite upset about responses from his employers’. On 14 December 2006 he noted ‘Anxiety – hyperventilation – upset, emotional’. Try ‘paroxetene, daily and Stemetil’.
38. Dr Cowan’s medical certificate on 5 July 2005 said Mr Bannerman was suffering from ‘vertigo, presumed viral labyrinthitis’ related to his fatigue from a ‘heavy workload and shortage of staff’. He confirmed that Mr Bannerman was then unable to drive, but was fit for modified duties at home. He said Mr Bannerman was ‘unable to carry out many routine movements or activities.’ Mr Bannerman identified these as including vacuuming, general house cleaning, gardening, cooking, washing, and walking dogs. Dr Cowan provided medical certificates that Mr Bannerman was unfit for work between 15 August 2005 and 31 October 2005.
39. Dr Cowan provided two other short reports. The first on 31 May 2007, confirmed that Mr Bannerman ‘suffers from vertigo and related nausea attacks, aggravated by motion and environmental factors’. In the second, on 21 July 2007, he said there were ‘several presumed viral illnesses preceding the onset of vertigo in 2003’. However, despite saying ‘there is no injury’, Dr Cowan estimated Mr Bannerman’s level of permanent impairment under the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2006) (Guide) as 20 per cent. He confirmed that Mr Bannerman had an anxiety state and possibly depression which he said appear ‘to be secondary to his symptoms and to the ongoing dispute with his employer’.
40. A report by Ms Sally Cole, dated 4 October 2006, notes that at a medical review on 28 September 2006, attended by Dr Cowan and Mr Bannerman:
The appropriateness of referral to an alternate physician who specialises in the type of condition, or referral to a rehabilitation physician was discussed but Dr Cowan did not consider that this was necessary nor would there be any other benefits.
The possibility of psychological overlay impacting on the client’s current medical condition was also discussed but, again Dr Cowan did not consider this to be a factor and did not consider that any referral for psychological assessment was necessary.
41. Mr Bannerman had CAT scans on his head on 12 March 2004, and 27 April 2005. On both occasions there was no abnormality other than sinusitis. An MRI on Mr Bannerman’s brain and internal auditory canal on 25 June 2004 identified sinus disease alone.
42. Dr Hilton Stone, ear, nose and throat surgeon, initially reported on 25 August 2005, that Mr Bannerman’s ears appeared normal, but his symptoms were ‘suggestive of a peripheral vestibular problem’. In a subsequent report dated 31 March 2009, following a consultation with Mr Bannerman on 4 February 2009, Dr Stone reported that the prolonged nature of Mr Bannerman’s condition, and the lack of hearing symptoms and normal vestibular tests told against a diagnosis of viral labyrinthitis. He recommended an update on Mr Bannerman’s neurological state to ensure that his problem was ‘not the start of a progressive neurological problem’. He said he could not hypothesise a cause of his condition, but said that as his symptoms have continued for six years, this points ‘to a psychosomatic disorder’. At the hearing he agreed that it was possible that initially Mr Bannerman had balance problems caused by vestibular problems in his ear but said that the better current view was that the viral labyrinthitis was negated.
43. An audiology assessment by Dr William Vass, dated 22 June 2007 only revealed ‘mild sensorineural hearing loss bilaterally’.
44. A report by Dr John Walker, consultant ear, nose and throat surgeon, on 28 June 2007 said that the history provided by Mr Bannerman indicated ‘his symptoms of vertigo and associated nausea are related to a presumed attack of viral labyrinthitis in September 2003’. However, ‘[he] cannot relate such attack to any work related cause’. A non-work related factor which he considered relevant was the ‘severe virus infection in September 2003’. In his view the prognosis ‘of vertigo secondary to virus labyrinthitis in general is usually that the condition will gradually resolve with time but may be temporarily precipitated by any intercurrent virus infection’.
45. Dr John Saboisky, consultant psychiatrist, reported on 17 August 2007 that he had seen Mr Bannerman on 16 August 2007. He diagnosed ‘some mild symptoms of an adjustment disorder with angry and anxious mood as a result of conflict in the workplace’. In Dr Saboisky’s opinion Mr Bannerman had symptoms of an adjustment disorder prior to the development of acute labyrinthitis. Dr Saboisky said the labyrinthitis was not caused by anxiety, but was ‘certainly contributed to by the tensions and conflicts he has felt in relation to his employment and his inability to obtain home-based work’. He did not believe the symptoms of his adjustment disorder were sufficient to prevent him working. Under Table 5.1 of the Guide he assessed his permanent impairment as 5 per cent.
46. On 15 December 2006, Dr Graham George, consultant psychiatrist, provided a report to Health Services Australia. He diagnosed generalised anxiety disorder, initially brought on by vertigo, and somatoform disorder as the Axis 1 psychiatric disorder, obsessive personality traits as an Axis II disorder, and the related vertigo (presumably caused by labyrinthitis) as the related Axis III medical problem. He reported that Mr Bannerman’s vertigo ‘came on in the context of work stress several years ago’. In his view, it was ‘not uncommon that a troubling symptom such as vertigo could cause the generation of generalised anxiety disorder and even, a somatoform disorder’.
47. In a subsequent report dated 11 December 2008, Dr George said Mr Bannerman reported to him that he currently drank 7-12 bottles of beer a day which had been his custom for the previous 12 months. Mr Bannerman said his drinking had increased after his ‘unfair dismissal’. In this report, Dr George diagnosed alcohol dependence/alcohol abuse and noted that although he had previously diagnosed Mr Bannerman with generalised anxiety disorder, according to the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM IV) ‘functional psychiatric disorder cannot be diagnosed in the presence of alcohol dependence’ and that ‘[s]ymptoms of alcohol intoxication and withdrawal can mimic symptoms of anxiety’. Dr George was not prepared to say that Mr Bannerman’s current condition was related to his original condition, nor whether it was directly related to his work environment. Nor was he prepared to say whether the condition was permanent.
48. At the hearing Dr George agreed that somatoform disorder can develop at any time. When asked whether Mr Bannerman’s generalised anxiety disorder could have developed because of his health problems, he said that Mr Bannerman may have had a predisposition to anxiety. He agreed that the fact that Mr Bannerman was ‘anal’ about his health was a feature of Mr Bannerman’s personality traits.
49. Dr William Knox, consultant psychiatrist, reported on 3 November 2009 and noted Mr Bannerman’s ‘focused concern about his physical health’ and that he ‘does not have strong insight into possible psychological aspects of his poor health and behaviour’. Dr Knox said Mr Bannerman had reported a panic attack ‘probably in 2006’ which resulted in him calling an ambulance. The health workers who attended believed the episode was one of anxiety and panic and that he should be treated. That suggestion had been confirmed by his then general practitioner, Dr Dorothy Russell, who suggested he should see a psychologist.
50. Dr Knox diagnosed anxiety and an undifferentiated somatoform disorder, but said that until Mr Bannerman undertook treatment, he was not prepared to say that the condition was permanent. In Dr Knox’s view, this condition was outside the boundaries of normal mental functioning and behaviour. He also noted that DSM IV is premised on a hierarchy of diagnoses and that a person with generalised anxiety disorder technically could not also be diagnosed with somatoform disorder.
51. In his view, the development of the conditions was due to ‘the unhappy situation with the Department of Defence, particularly the heavy workload, reduced work support, and the ongoing difficulties between Mr Bannerman and Mr Pasturczak’. As a result he said, ‘Mr Bannerman came to suffer from psychiatric illness overlapping with certain physical manifestations’. He also said Mr Bannerman had not referred to other significant stressor events, although he said there may have been underlying personality traits. He also noted that Mr Bannerman had not been psychiatrically or physically unwell prior to his time at Defence.
52. At the hearing, Dr Knox agreed he only had Mr Bannerman’s account for his conclusions about the link between the workplace and Mr Bannerman’s symptoms. He also agreed that, since Mr Bannerman did not volunteer any information about stressors other than those in his workplace, he did not consider alternatives. Nonetheless, he said there were clearly conflicts for Mr Bannerman concerning the letting of the contract to the existing hardware supplier and that it would have been improbable that Mr Bannerman became unwell without a stressor. In cross-examination he did not accept that Mr Bannerman’s concerns about his health would have been a sufficient stressor. As he said ‘I doubt that [his condition] would have developed the way it did without other work factors’.
53. A consultant psychiatrist, Dr Robert Gertler, provided a report for Comcare on 19 February 2010. Dr Gertler described Mr Bannerman as suffering:
… a chronic anxiety state. This manifests itself primarily in the form of ongoing and varying somatic complaints. … The symptoms which Mr Bannerman continues to experience as part of the ongoing chronic anxiety state, developed whilst he was employed with the Department of Defence in reaction to certain stressors.
These symptoms in his opinion were ‘outside the boundaries of normal mental functioning and behaviour’.[1]
[1] Comcare v Mooi (1996) 69 FCR at 444.
54. In Dr Gertler’s view, Mr Bannerman’s ‘symptoms of anxiety appear to have increased in the context of increased pressures at work and a lack of a supportive environment’ and that his diagnosed condition ‘was contributed to in a material degree by his employment’. Dr Gertler also expressed the view that Mr Bannerman’s possible viral labyrinthitis was no longer a factor in his symptoms, given the clean bill of health provided by the ear, nose and throat experts and the audiology examination. He also noted that Mr Bannerman’s report to him of 10 beers a night indicated he was abusing alcohol and this would need to be dealt with prior to any attempts at psychological treatment.
55. In a supplementary report of 1 July 2010, Dr Gertler was asked to assume first that Mr Bannerman’s workload was not excessive, second that in 2003 to mid 2006, Mr Bannerman attributed his symptoms of nausea and vertigo to a viral condition which may have been caused by labyrinthitis, third, that he did not complain of stress, and fourth, that he did not consider his physical symptoms were due to a psychological condition or to stress. Dr Gertler’s response was:
… in noting the …. assumptions, I would alter my opinion as to the significance of work in the causation of Mr Bannerman’s chronic anxiety state. I would have to assume that his diagnosed condition was not contributed to in a material degree by his employment with the Department of Defence.
56. At the hearing Dr Gertler agreed that the first assumption was directly contrary to Mr Bannerman’s story and his perceptions and it was his perceptions which were relevant. As to the second assumption, he said that all the advice at the time was that viral labyrinthitis was the cause of his vertigo/nausea and this was relevant to his symptoms. He suggested that the labyrinthitis could have brought on the undifferentiated somatoform disorder and he noted that at the time Mr Bannerman was also trying to cope with stresses in the workplace.
57. Dr Gertler said that Mr Bannerman’s vertigo sensitised him to the development of an anxiety disorder. He said vertigo created room for the anxiety to develop, that Mr Bannerman’s vertigo was the symptom of choice to express the anxiety, and that a person’s personality structure can predispose a person to anxiety. He said that people who somaticise their anxiety often have poor insight into the causes of their disorders, as was the case with Mr Bannerman. He also agreed that events in the workplace were causal ‘to some extent’.
Other evidence
58. Mr Pasturczak provided two written statements, one dated 25 June 2010 and another undated, and he also gave oral evidence. Mr Pasturczak said he hired Mr Bannerman for the position in the hardware team of the Land 75 project because he was the best candidate. In his view Mr Bannerman was professional, provided good technical solutions, and interacted reasonably well with people although he was not a great socialiser at work. He said Mr Bannerman was forthright – an important quality in someone on whom one relied for technical knowhow – direct, honest and thorough. Prior to the workers’ compensation claim in 2005 he believed Mr Bannerman had no personal issues with Mr Pasturczak, and that he had no other work-related issues.
59. He explained that the failure to hire more staff when Mr Bannerman’s team became depleted was due to funding restrictions within Defence and that other teams suffered too. He denied that Mr Bannerman had been under extra work pressures in 2003. In the period prior to October 2003, when the supplier with which Mr Bannerman was not happy had been between contracts, there was no need for contract or design work, no emails, or telephone calls to the company to follow up on progress. This markedly reduced the workload on the hardware team. He also denied excluding Mr Bannerman from meetings, since he said in this period he was not focusing on hardware issues and the meetings he had were about software matters.
60. He conceded that Mr Bannerman had written a 9 page specification document in 2003, but that it went to an external provider to turn it into a 45 page tender document. This larger document was being reviewed by Mr Bannerman during 2003 and into 2004. He also denied that Mr Bannerman had ever said to him that he had too much work to do. He said that the project director and he had agreed, given the staffing shortages and Mr Bannerman’ health problems, that they would not ask Mr Bannerman to do extra work until the new major arrived in January 2004. He said he told Mr Bannerman that he was only to do what work he could manage.
61. In relation to the TRAMM accreditation system, he said this would have increased Mr Bannerman’s workload but that Mr Bannerman had been doing the work informally pre-mid 2003 when the requirements were formalised so he would have been familiar with them. Mr Bannerman was not asked to undertake the safety element of the criteria, only the ‘fit for purpose’ element.
62. In cross-examination Mr Pasturczak said he could not recall Mr Bannerman telling him in 2003 that he was stressed. Mr Pasturczak thought he was suffering from flu but said that in October 2003 Mr Bannerman told him it was viral labyrinthitis. However, he did believe he was suffering fatigue in October 2005.
63. Major Ian McDonagh, Mr Bannerman’s immediate supervisor in the period January to December 2004, provided a written statement dated 20 July 2006, and gave oral evidence. In his report he said that in early 2004 Mr Bannerman was ‘actively seeking medical assistance/solutions to his Vertigo symptoms’. He recalled one field trip in early 2004 when Mr Bannerman had to drive to Albury and that ‘following this trip Bill suffered vertigo attacks that rendered him very ill’. He said that Mr Bannerman, although ill, was committed to completion of the project and ‘often … took work home and worked out of hours to complete time critical documentation reviews’. He said the workload was high and ‘this was due to significant contractual changes within the project but more aligned with the lack of personnel within the Hardware Section prior to my arrival’. He maintained this view at the hearing. He also noted the need to include changes to the specifications required by the new regulatory regime and that these were required in a short time frame. He praised Mr Bannerman’s technical precision, his attention to detail and said his work ethic was strong. Major McDonagh acknowledged that he and Mr Bannerman had become friends during his time on the project.
64. Major Brocklehurst took over from Major McDonagh and was Mr Bannerman’s supervisor from January to December 2005. He said he got on well with Mr Bannerman. When he took over he became aware that Mr Bannerman had health issues but said Mr Bannerman had explained that these were related to a viral infection which caused nausea when he travelled. Mr Bannerman had also attributed his condition to the amount of flying he did over the previous 18 or so months. Major Brocklehurst said Mr Bannerman did not travel during 2005. Major Brocklehurst also said that Mr Bannerman had not said to him that he felt stressed by work, nor did he attribute his health problems to stress.
65. He said he noticed some friction between Mr Bannerman and Mr Pasturczak over work issues but it was nothing personal. He said Mr Bannerman was ‘passionate’ and could become ‘obstinate if decisions were ultimately taken in opposition to an idea he championed’. He also noted that ‘We all, including [Mr Bannerman] harboured an element of frustration’ about the time the Project was taking. In his opinion the project was adequately staffed to carry out its functions. He noted that Mr Bannerman took increasing amounts of time off during 2005 before beginning extended leave. He concluded:
It is my belief that throughout 2005 [Mr Bannerman] was still attempting to find out exactly what medical condition was causing his symptoms. My strong recollection is that he attributed his symptoms and increasing inability to work to a viral condition, and never attributed it to workplace stress.
Consideration
66. Comcare, in its initial decision indicated that the delays in prosecuting his claim made Mr Bannerman vulnerable to dismissal of his claim under section 53 of the Act. Reliance on that provision was upheld on review by Comcare, although the reviewer went on to decide the substantive issues. At the hearing, the section 53 issue was not pursued by Comcare.
Nature of condition the subject of claim
67. Viral labyrinthitis. The first issue is to decide what condition or conditions are the subject of this claim. Late in 2003, Mr Bannerman suffered an injury in the form of vertigo like symptoms and nausea. He claimed workers’ compensation for these symptoms on 28 September 2005. The symptoms were tentatively labelled ‘vertigo – presumed viral labyrinthitis’. That label was first suggested on 10 January 2004 when Mr Bannerman visited the emergency department at The Canberra Hospital and was subsequently accepted, with qualification, by other medical experts.
68. Subsequent CAT scans, an MRI, and audiometric testing did not identify any organic cause of the condition. As a consequence, medical experts have come to doubt the diagnosis. Nonetheless, the medical experts concede he may have suffered such a condition and since recovered.
69. Dr Tuck, a neurologist, said that Mr Bannerman had a ‘vestibular problem’, that is, a condition affecting nerves in the ear which affect balance, and can cause dizziness. Dr Fletcher noted he suffered from nausea and vertigo and dizziness. Dr Cowan confirmed that Mr Bannerman suffered from vertigo and nausea and in the relevant period from 2004 to 2007 was actively involved in trying to find a panacea for the conditions. The emergency department at The Canberra Hospital in January 2004 noted he had balance problems and could not walk in a straight line, and that turning quickly induced vertigo. Dr Stone, an ear, nose and throat expert, initially diagnosed ‘a peripheral vestibular problem’ but later recanted from that diagnosis. However, he acknowledged at the hearing that it was possible that Mr Bannerman had vestibular problems initially but no longer did so. A similar view was taken by Dr Walker, another ear, nose and throat expert.
70. Of the psychiatrists who provided evidence, Dr Saboisky acknowledged that Mr Bannerman had suffered acute labyrinthitis; Dr George referred to his vertigo; Dr Knox to his ‘physical manifestations’, presumably referring to his vertigo and nausea; and Dr Gertler to Mr Bannerman’s possible viral labyrinthitis although he said it was no longer a factor. At the hearing, Dr Gertler agreed that all the medical advice initially was that viral labyrinthitis was the cause of Mr Bannerman’s vertigo and nausea.
71. On balance, the Tribunal is satisfied on the basis of the medical evidence that initially Mr Bannerman suffered from a vestibular problem, diagnosed as possible viral labyrinthitis. However, in the light of subsequent audiometric, CAT scan and MRI testing, the Tribunal also accepts that Mr Bannerman’s vertigo and nausea conditions, to the extent symptoms continue, are no longer due to vestibular problems or labyrinthitis.
72. Stress disorder. In July 2006, following rejection by Comcare of his claim for ‘presumed viral labyrinthitis’, Mr Bannerman amended his request for reconsideration to include a claim for a stress disorder. There is considerable medical support for diagnosis of some form of psychological condition and counsel for Comcare conceded he does suffer such a condition. The Tribunal, however, must identify the nature of that condition.
73. Dr Fletcher did not attempt a diagnosis in his clinical notes in late 2003 and early 2004 but did note Mr Bannerman’s symptoms ‘were psychomatic’. Dr Tuck doubted that his problems ‘were primarily neurological’, which suggested some level of psychological cause. Dr Cowan said Mr Bannerman had an anxiety state and possible depression which were secondary to his symptoms. Dr Stone said the length of time his symptoms had continued suggested a psychosomatic disorder.
74. Of the psychiatrists, Dr Saboisky diagnosed adjustment disorder; and Dr George generalised anxiety disorder and somatoform disorder. Later Dr George changed his diagnosis to alcohol dependence/alcohol abuse given Mr Bannerman's alcohol consumption patterns and the principle in DMS IV that 'functional psychiatric disorder cannot be diagnosed in the presence of alcohol dependence'. Nonetheless, at the hearing he did not cavil at questions which assumed either that Mr Bannerman had a generalised anxiety disorder or somatoform disorder. Dr Knox diagnosed anxiety and an undifferentiated somatoform disorder; Dr Gertler said Mr Bannerman was suffering a chronic anxiety state.
75. Following discussion at the hearing, the Tribunal is satisfied, given the predominant medical evidence, that Mr Bannerman suffered an anxiety disorder and an undifferentiated somatoform disorder. The latter disorder was in the 'undifferentiated' category since Mr Bannerman's symptoms did not fully meet the criteria for somatoform disorder, notably that the condition generally arises prior to the person turning 30. Mr Bannerman was over thirty before he suffered symptoms. The two disorders are linked.
76. It was agreed that Mr Bannerman’s conditions of anxiety and undifferentiated somatoform disorder were outside the boundaries of normal mental functioning.[2] This was the conclusion of Dr Gertler, and Dr Knox. The Tribunal accepts that view, given the history of Mr Bannerman's increasing withdrawal from his workplace, his lack of social contact, his inability to perform even domestic tasks and on occasion, to drive, and his continuing physical manifestations of symptoms of nausea, vertigo, as well as his increased alcohol consumption.
[2] Ibid.
77. At the hearing, the counsel for Comcare said there was no dispute that Mr Bannerman’s stress condition was an ‘ailment’,[3] that the condition was outside the boundaries of normal mental functioning and behaviour, and accordingly that he was suffering a ‘disease’.[4] As a consequence he had suffered an ‘injury’.[5] The Tribunal so finds. Comcare also conceded Mr Bannerman was ‘incapacitated for work’.[6] That means the sole issue was whether, as at the date of injury, the disease being an ailment ‘was contributed to in a material degree by the employee’s employment’.[7]
The dates of the injuries
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 4(1) – definition of ‘ailment’.
[4] Act s 4(1) – definition of ‘disease’.
[5] Act s 4(1) – definition of ‘injury’.
[6] Act s 14(1).
[7] Act s 4(1) – definition of ‘disease’.
78. Viral labyrinthitis. The date of injury is either the day when ‘the employee first sought medical treatment for the disease’ or ‘the disease … first resulted in the incapacity for work’.[8] The initial claim was for ‘vertigo – presumed viral labyrinthitis’. Mr Bannerman said he first sought medical treatment on 3 September 2003 for symptoms which later were diagnosed as vertigo. Mr Bannerman stated in his workers’ compensation claim dated 28 September 2005 that there was ‘supposed entry of virus to vestibular system’ in September 2003. Comcare’s decision of 19 December 2005 found that the date of injury was 5 July 2005, the date on which medical evidence from Dr Cowan of the condition was provided. The reviewable decision of 12 December 2006 simply affirmed the decision under review.
[8] Act s 7(4).
79. There is no question that Mr Bannerman suffered a viral condition on 3 September 2003 which prevented him working for three days. According to the clinical notes of Dr Fletcher, that was also when he first suffered ‘acute high blood pressure’ and ‘excessive bowel activity and soft stool’. There is a medical certificate dated 4 September 2003 for ‘viral illness’.
80. On 24 October 2003, the clinical notes of Dr Fletcher refer to ‘various aches in the body, nausea, loss of concentration, disturbed sleep’ but no mention of dizziness or vertigo. However, in October 2003, a handwritten medical certificate by Dr Fletcher notes ‘recurrent dizziness’. On 9 January 2004, ‘nausea’ was again referred to by Dr Fletcher. Mr Bannerman in his statement of 8 June 2007 says he experienced sensations of travel sickness, dizziness as well as nausea in flights to Melbourne he took in September and October 2003 and during travel by road to Victoria, in October 2003.
81. Vertigo or viral labyrinthitis is not mentioned until 10 January 2004 when The Canberra Hospital emergency department report noted Mr Bannerman’s presentation with ‘nausea, vertigo’ and loss of balance for ‘> 2 months’. That report lists ‘viral labyrinthitis’ as a possible diagnosis.
82. It is clear that Mr Bannerman’s symptoms puzzled the medical experts at the time and although no diagnosis of ‘presumed viral labyrinthitis’ was made until 10 January 2004, with hindsight it is apparent that the symptoms being experienced by Mr Bannerman at least from October 2003 persisted and were given a medical label in January 2004. For these reasons, the Tribunal finds that the date of injury for Mr Bannerman’s presumed viral labyrinthitis was 24 October 2004, when he first consulted Dr Fletcher about his nausea and dizziness.
83. Stress disorder. The stress claim was made on 20 July 2006 in Mr Bannerman’s request for reconsideration of Comcare initial decision. In that reconsideration he claimed the date of injury of his stress disorder should be 3 September 2003. He said that all his symptoms, including vertigo, high blood pressure and bowel problems, had been medically attributed to stress. The reviewable decision of 12 December 2006 did not specify a date of injury but by implication the 5 July 2005 was affirmed. Mr Bannerman had a medical certificate from 5 July 2005 that he was fit only for work at home.
84. In his clinical notes Dr Fletcher refers in his entry for 24 October 2003 to ‘lot of pressure in his job causing various aches in the body, nausea, loss of concentration, disturbed sleep’. That is the first possible reference to work-related stress. By 5 December 2003, however, Dr Fletcher’s entry is ‘sorted things out at work’ confirmed by his notes for [indecipherable day] January 2004 state ‘No stress at present’. In a further report of 4 July 2010 Dr Fletcher stated that in his opinion Mr Bannerman’s symptoms were not stress-related.
85. Dr Cowan appeared to have discounted any possibility of stress in his initial search for a cause for Mr Bannerman’ symptoms. The first reference to stress in his clinical notes is on 30 June 2005 when he states ‘Not much evidence of stress’. Thereafter there are no references to stress until 13 October 2006 when his notes record ‘Very upset about work arguments’ and on [indecipherable day] November 2006, ‘BPs good on the whole, [indecipherable] high readings induced by work emails etc. Quite upset about responses from his employers’. Then on 14 December 2006 his notes state ‘Anxiety, hyperventilation, upset, emotional’, and he prescribed an anti-depressive medication, ‘paroxetene’.
86. Dr Cowan’s clinical notes of 13 October 2006 refer to ‘work arguments’. Dr George’s report of 15 December 2006 diagnosed generalised anxiety disorder and noted that Mr Bannerman’s vertigo ‘came on in the context of work stress several years ago’ and it was ‘not uncommon that a troubling symptom such as vertigo could cause the generation of generalised anxiety disorder and even, a somatoform disorder’. Dr Knox’s report of 3 November 2009 referred to a panic attack Mr Bannerman suffered ‘probably in 2006’. The Tribunal notes that the psychiatrist’s reports are reliant on Mr Bannerman’s accounts and post-date the development of any stress-related disorder.
87. On the basis of this evidence, the Tribunal is not satisfied that there is sufficient evidence that Mr Bannerman suffered a stress disorder in 2003 or 2004. The stressful situations being referred to in Dr Fletcher’s reports are not references to a stress disorder. Moreover, it is not until the results of the CAT scans and the MRI were known and Dr Stone reported on 25 August 2005 that Mr Bannerman’s ears appeared normal, that medical evidence confirmed that earlier organic symptoms had disappeared. At what point, however, there should be a psychosomatic explanation for Mr Bannerman’s continuing symptoms has not been pinpointed.
88. In those circumstances, the Tribunal is prepared to accept 5 July 2005 as the date of injury for Mr Bannerman’s claimed stress disorder. The date reflects Dr Cowan’s certificate that as at that date Mr Bannerman was fit only for modified duties at home. Precision as to the date in this case has no effect on the legal criteria to be applied.
Whether any condition suffered by Mr Bannerman was materially contributed to by his employment with the Department of Defence?
89. The central issue is whether one or both of these injuries was materially contributed to by Mr Bannerman’s employment. The ‘disease’ which Mr Bannerman suffers, to be compensable, must have been ‘contributed to in a material degree by the employee’s employment’.[9]
[9] Act s 4(1) – definition of ‘disease’.
90. What is a ‘material degree’ was authoritatively discussed by Finn J in Comcare v Sahu-Khan.[10] He said the expression was intended to require that the contribution be more than a mere contributing factor.[11] As His Honour put it, the inclusion of the term ‘material’ imposed an ‘evaluative threshold below which a causal connection may be disregarded’.[12] Finn J concluded that the correct test for ‘in a material degree’ was probably best captured by the meaning in the Shorter Oxford English Dictionary as ‘4. In a material degree; substantially, considerably.’[13] He also pointed out that causal test required an evaluation of all the relevant factors.[14]
[10] Comcare v Sahu-Khan (2007) 156 FCR 536 at 542.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Id at 543.
Viral labyrinthitis
91. Mr Bannerman contends that the combination of staff shortages when he was trying to do the work of four people, heavy travel commitment and conflict with his supervisor produced a work load which was excessive. As a consequence he said he became fatigued, rundown, and suffered a series of illnesses including viral conditions. This led to the entry of a virus to his vestibular system. In turn this produced the vertigo, nausea and dizziness which led to the tentative diagnosis of viral labyrinthitis. The viral labyrinthitis condition prevented him travelling and, subsequently, from working.
92. Counsel for the respondent contends that Mr Bannerman’s ‘employment did not materially contribute to’ his condition. Rather the contention was that:
His mental condition developed as a consequence of his personality traits and the experience of the ‘crippling illness’ of nausea, vertigo and other worrying symptoms, the long search for a medical cure, the loss of his ability to work including his hope of working from home and the resulting loss of financial security.
93. The argument was that there was an organic base to his symptoms in late 2003 and early 2004, but over time this disappeared. At the same time, Mr Bannerman’s concern about his health coupled with his personality traits meant his symptoms mutated into an anxiety disorder.
94. The cases establish that a material contribution may be a matter of perception. As von Doussa J said in Wiegand v Comcare Australia:[15]
… it was open on the evidence for the tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.
[15] Wiegand v Comcare [2002] FCA 1464 at [31]. Followed by Deputy President Jarvis in Re Albanese and Comcare [2004] AATA 768 at [68].
95. As Wiegand indicates, the ‘incident or state of affairs’ must have some grounding in fact. As von Doussa J said: ‘A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.’[16] In combination, these principles mean that if someone holds a perception, even if irrationally based, that may still be compensable if it is founded in fact and it meets the correct evaluative threshold in the Act.
[16] Id at [24].
96. The incidents or states of affairs involved in Mr Bannerman’s claim are that he was subjected to heavy workloads due to staff shortages and travel requirements, compounded by stress due to conflict with his supervisor.
Workloads
97. During 2002, the hardware team lost one member; a second, the Major in charge, left in April 2003; and the third member of the team left in August 2003. Mr Bannerman was the sole remaining member of the team but only in the period August 2003 till January 2004 when Major McDonagh arrived.
98. Ms (former Major) Isdale, Mr Bannerman’s supervisor till April 2003, said in written evidence that Mr Bannerman’s workload was no more than other team members. In the period from August 2003, Mr Pasturczak said that he was preoccupied with software matters and was not imposing deadlines on the hardware team. Indeed, when Mr Bannerman was refused Additional Responsibility Pay when asked to do work developing contracts, Mr Pasturczak specifically said to him that there was no pressure and he was just to do what he could manage. The Tribunal accepts the evidence of Mr Pasturczak as a witness of truth.
99. Mr Bannerman’s Attendance Diary for January 2003 to June 2004 shows that he did not work a standard working week of 37.5 hours from 10 March 2003 to 30 June 2004 except in two weeks: the weeks commencing 6 October 2003 and 13 October 2003. In April 2003 and May 2003 Mr Bannerman was absent for several weeks on either sick leave or annual leave; in July to December 2003, he had at least a week’s leave – either sick leave or annual leave – each month; in January, February and March 2004, Mr Bannerman also had between two and four weeks of leave each month.
100. Nonetheless, February, March and June 2003 and April to June 2004, were months in which he was neither ill, nor taking more than a few days’ leave, so they are potentially periods when he would have been working full-time, or, if under pressure, additional hours. He did not do so according to his Attendance Diary. That is, there was no sustained period during 2003 and mid 2004 when he would have been working excessive hours.
101. Even granted, as Mr Bannerman claims, and his claim is supported by Major McDonagh and Ms Isdale, that the Diary was not a complete record of his time spent on work duties, Mr Bannerman’s working hours do not suggest undue demands were being made on him in 2003 and 2004. The Tribunal does accept that Mr Bannerman was conscientious and did work outside the hours shown on his attendance record, but there is no concrete evidence of the number of hours or frequency of this ‘at home’ work.
102. In January 2004, Major McDonagh arrived and subsequently Major Toohey was also appointed to the Land 75 team. From that time, Mr Bannerman was no longer shouldering the hardware element of the Project alone. The Tribunal accepts that Mr Bannerman was conscientious about his work, technically precise, and his attention to detail was high. Maintaining standards such as these is demanding. At the same time, there is no evidence that it was his workload rather than a series of illnesses and Mr Bannerman's evident concern about his health issues and the inability to find a cause and appropriate treatment to prevent the recurrence of his vertigo and nausea which caused him anxiety, stress and made him tired.
103. Mr Bannerman’s claim of excessive workload over the period to July 2005 should be discounted. The claim of excessive workload is not sufficiently grounded in fact to have made a material contribution to his viral labyrinthitis.
Travel
104. Nor was Mr Bannerman’s travel schedule heavy. From the Attendance Diary and Mr Bannerman’s Flex Sheets, it appears that he travelled once to Darwin in January 2003, to Melbourne twice in February 2003, to Sydney once in March 2003, again to Melbourne once in April 2003, and he had another trip to Melbourne in June 2003 and a further trip on 30 June. He had a trip to Melbourne in September 2003, and two to Bandiana and Melbourne respectively in October 2003. In total that is less than one trip a month in 2003. Although Mr Bannerman undertook one trip by road for work in March 2004, when he also became ill from nausea and vertigo, that was the last travel for work he was required to do until he left the workplace.
105. So although Ms Altair’s written evidence said that in the period to April 2003, Mr Bannerman was required to travel more than other team members, that was prior to the period when Mr Bannerman became ill, and it is not clear from her statement what was the expectation on which this comparison was made. Mr Pasturczak in his statement to Comcare of 7 October 2005 said Mr Bannerman’s travel was ‘consistent with travel undertaken by other project members as the Army user base is spread across Australia’. In these circumstances, the Tribunal is satisfied that Mr Bannerman’s travel commitments were not excessive during 2003.
106. The Tribunal accepts that from January to April 2003 the team was down to three members, and from April to August 2003, only two members. In those periods, Mr Bannerman may have had to pick up some work on his return from travel since it could not be done by those remaining in Canberra. However, prior to August 2003, there was at least one other team member sharing the hardware team’s workload. The Tribunal also finds that Mr Bannerman had 59 days off work on sick leave in the 6 months between April and end of September 2003.
107. At the same time, the Tribunal accepts Mr Pasturczak’s evidence that he was aware of both Mr Bannerman’s health problems and the personnel shortages and that he had for that reason instructed Mr Bannerman not to take on an extra workload post August 2003 and only to do what he could manage. Accordingly, Mr Bannerman had been told he was not under any pressure during this period. Mr Bannerman's Attendance Diary indicates that he heeded this advice. There were also no tight deadlines looming since the hardware team had been working on the hardware installation kit since 2002 and although the specifications did need to be completed in draft form, these were not due until January 2004.
108. On balance the Tribunal is satisfied that Mr Bannerman’s perception that his travel commitments were excessive in 2003 so that he became fatigued is not sufficiently grounded in fact, especially given the normal travel commitments of those involved in defence work, spread as it is throughout Australia.
Conflict with supervisor
109. In evidence, Mr Bannerman stated that initially he had respect for Mr Pasturczak and regarded him as a ‘great guy’ and a ‘charismatic’ individual. The email from Mr Bannerman to Mr Pasturczak on 12 November 2005 was warmly jocular. Major Brocklehurst who was located in the same work station as Mr Bannerman in 2005 said although he noticed some friction between Mr Bannerman and Mr Pasturczak over work issues, it was not personal.
110. At the hearing, Mr Pasturczak denied that he had belittled Mr Bannerman and the Tribunal accepts his testimony. Mr McVeigh in his report found that of the persons he interviewed for the purposes of his report, none had ‘seen any inappropriate behaviour by Mr Pasturczak towards Mr Bannerman’. Indeed the comment is made that ‘there has been limited contact between the two’ which is consistent with the fact that Mr Pasturczak was Mr Bannerman’s direct supervisor for only four months between September and December 2003 and during that period was focused principally on software issues.
111. Another of Mr Bannerman's complaints was that Mr Pasturczak had excluded him from meetings. Mr Pasturczak said that this was only because the meetings were predominantly about software, not hardware, issues and there was little point in Mr Bannerman attending. The Tribunal accepts this as a plausible explanation for the exclusion.
112. Mr Bannerman said his perception of Mr Pasturczak had changed, leading him to bring the complaint of harassment against Mr Pasturczak in October 2006, a complaint which was not upheld. It was also hypothesised by Mr McVeigh in his report that the reason the relationship soured was that Mr Pasturczak, in the second half of 2005, retracted Mr Bannerman’s permission to work from home and also did not support the claims of excessive workload on which Mr Bannerman grounded his workers’ compensation claim. Mr Pasturczak said he was distressed and shocked to read Mr Bannerman’s accusations against him some time after Mr Bannerman ceased working in October 2005.
113. Mr Bannerman’s change of perception did not occur until over three years after the emergence of Mr Bannerman’s vertigo symptoms in 2003, and some time after the development of his stress symptoms in mid 2005. The Tribunal is satisfied that any contribution prior to then from any breakdown in relations between Mr Bannerman and Mr Pasturczak was insufficiently grounded in fact to meet the material contribution test.
114. In summary, Mr Bannerman’s perception of his heavy workloads, excessive travel requirements and conflict with his supervisor did not have sufficient grounding in fact for Wiegand purposes to establish that they caused his fatigue and led to his viral condition. Nor, despite Dr Cowan’s concession that it was possible for fatigue to make a person more susceptible to a viral infection, is there sufficient medical evidence of a link from fatigue to the virus from which Mr Bannerman suffered in September 2003 and which led to his vertigo and related symptoms. Accordingly these requirements could not be considered to have made such a significant or substantial impact on Mr Bannerman to have amounted to a material contribution for the purposes of the Act.
Stress disorder
115. Whether Mr Bannerman suffered a stress disorder due to his employment is the second issue. The causal chain suggested by Mr Bannerman led from his workplace to his viral illnesses and in turn to his psychological disorders. The finding of the Tribunal that the viral illnesses were not materially contributed to by Mr Bannerman’s workplace denies that foundational link existed. Nonetheless, the Tribunal has examined the relevant medical evidence on this issue.
116. Mr Pasturczak maintained that Mr Bannerman had never told him he felt stressed; Mr Bannerman was certain he must have done so. In particular Mr Pasturczak said he was unaware there were any personal issues between himself and Mr Bannerman until Mr Bannerman made the harassment claim against him in October 2006. Major Brocklehurst also said that in 2005 Mr Bannerman had not told him he felt stressed. Rather, he said Mr Bannerman attributed his symptoms to a viral condition.
117. Mr Pasturczak was Mr Bannerman’s direct supervisor only between September and December 2003, although from January 2005 he was also the second level supervisor for the civilian members of the various teams involved in the Land 75 project. Moreover in the latter part of 2003 Mr Pasturczak’s evidence was that he was focused on the software, rather than the hardware elements of the project. Nonetheless, he only had a small team to manage, and since he presented at the hearing as a caring and thoughtful manager, the Tribunal is satisfied that had Mr Bannerman been complaining of stress, Mr Pasturczak would have known of it. Similarly, had Mr Bannerman believed prior to his request for reconsideration of his Comcare claim in July 2006 that his vertigo was due to work it is unlikely that he would not have so informed Mr Pasturczak earlier.
118. Mr Pasturczak acknowledged that Mr Bannerman had been unhappy about the decision in the second half of 2003 to award the hardware contract to the previously appointed company. However, this was not a decision of Mr Pasturczak’s and he did point out to Mr Bannerman that Mr Bannerman’s second option contractor would be appointed if the contractor which had been reappointed did not perform. Mr Bannerman may also have been unhappy to be refused Additional Responsibility Pay in August 2003. However, since the work involved was then allocated to the Professional Service Provider, that source of irritation was removed.
119. The principal conflict between Mr Bannerman and Mr Pasturczak appeared to relate to Mr Pasturczak’s denial in October 2005 in response to Mr Bannerman’s compensation claim, that Mr Bannerman was subject to pressure or excessive workloads. Another stressor was the decision by Mr Pasturczak in the latter part of 2005 withdrew support for Mr Bannerman to work from home. These decisions were taken for legitimate work related reasons and took into account that in accordance with Mr Bannerman’s work restrictions and Defence policy on working at home, Mr Bannerman was prevented from making a sufficient contribution to the project. They are accordingly defensible and although Mr Bannerman may have been unhappy about them, he had worked sufficiently long to understand the justifications.
120. Dr Fletcher refers to problems at work in 2003 but that these problems had resolved by early 2004. Dr Fletcher’s later evidence denies any impact of Mr Bannerman’s workplace on his stress-related conditions. Dr Tuck in March 2004 said he doubted that Mr Bannerman’s symptoms were ‘primarily neurological’ implying a psychosomatic element. These are the only references to stress in the workplace prior to the middle of 2005. Dr Cowan’s clinical notes refer to upsets at work in October, November and December 2006 including circumstances in December 2006 which were sufficiently serious as to warrant him prescribing an anti-depressant. The psychiatrists who provided reports which referred to work issues first saw Mr Bannerman in December 2006 (Dr George), August 2007 (Dr Saboisky), November 2009 (Dr Knox), and February 2010 (Dr Gertler).
121. In other words, apart from Dr Fletcher’s reports in late 2003 and early 2004 and the elliptical reference to psychosomatic disorder in Dr Tuck’s report in early 2004, the reports of the other medical experts who comment on stress in the workplace are not contemporaneous records of what was concerning Mr Bannerman during the critical periods in 2003 to 2005 when his viral labyrinthitis and stress conditions developed. Any stress from Mr Bannerman’s conflicts with Mr Pasturczak also appeared to occur in the second half of 2005.
122. In light of these facts, the Tribunal does not consider that Mr Bannerman’s employment made a material contribution to Mr Bannerman’s physical or psychological symptoms in the period to 5 July 2005 when Mr Bannerman first lodged a workers’ compensation claim.
123. That leaves the issue of whether stressful circumstances at work made a material contribution to Mr Bannerman’s stress-related condition in the period from 5 July 2005 to July 2006 when he left the workplace. On 20 July 2006 Mr Bannerman submitted a statement to Comcare for its reconsideration of his compensation claim and requested compensation for a stress-related disorder. In that claim Mr Bannerman appears to tie his stress-related claim closely to his other conditions. He says:
Vertigo and associated nausea are the only substantive reasons I can not continue the full extent of my duties, hence the claim and associated medical certificates focussing on this facet of my illness.
124. He claimed that where he had earlier referred to ‘fatigue’ that should be interpreted as ‘stress’. Since the Tribunal has found that there is insufficient evidence to link Mr Bannerman's fatigue with his workplace, this finding would equally apply to his stress-related condition in the period mid-2003 to 2005. Nonetheless, the Tribunal considers the evidence of the medical experts on this issue in relation to the period mid 2005 to July 2006.
125. What caused Mr Bannerman’s disabling symptoms was a matter of considerable doubt. Dr Fletcher had expressed the opinion from his treatment of Mr Bannerman in late 2003 to early 2004 that his symptoms were ‘psychosomatic and related to stressful conditions at work’. However, by the hearing he had changed his mind and concluded that Mr Bannerman’s health problems were not due to employment.
126. Dr Tuck’s reports imply that the primary cause of Mr Bannerman’s symptoms may have been psychological and suggests as an alternative cause Mr Bannerman’s ‘anal’ concerns about his own health. He did not give evidence at the hearing, nor did he attempt a more precise diagnosis of a psychological condition. Accordingly the Tribunal gives little weight to his comments.
127. Dr Cowan was apparently reluctant to acknowledge any non organic cause for Mr Bannerman’s symptoms until July 2006, when he noted an anxiety state and possibly depression. It was not until November 2006 and December 2006 that Dr Cowan's clinical notes refer to Mr Bannerman being upset from work issues to an extent requiring anti-depressant medication. That is outside the period being considered. In any event, Dr Cowan said the conditions of depression and anxiety state were ‘secondary to his symptoms and to the ongoing dispute with his employer’. It is not clear what is meant by ‘secondary’ in this report. Assuming it means there is some connection but it is not the principal cause of the symptoms, his opinion does not support the connection being ‘material'.
128. Dr Stone posited a psychosomatic disorder but gave no opinion as to its cause. Dr Saboisky suggested that Mr Bannerman’s ‘mild adjustment disorder’ resulted from ‘conflict in the workplace’ but the symptoms were insufficient to prevent him working, suggesting that even if there was a connection it was minimal. Dr George initially diagnosed generalised anxiety disorder, brought on by vertigo and somatoform disorder with obsessive personality traits related to vertigo, both conditions being traceable to employment. However, in his December 2008 report he altered his diagnosis to alcohol dependence/abuse and was not prepared to say that the alcohol related condition was linked to employment. Rather he favoured Mr Bannerman’s predisposition to anxiety, and his personality traits as causal.
129. Dr Knox was prepared to link his diagnosis of undifferentiated somatoform disorder and an anxiety disorder to Mr Bannerman’s unhappiness with work, his heavy workload, reduced work support and his conflict with Mr Pasturczak. Under cross-examination he maintained the view that his psychiatric conditions were linked to work. However, he also accepted that Mr Bannerman’s personality traits, and concerns about his health might also have been stressors. He did not attempt to allocate the proportion of contribution to any of these stressors.
130. Dr Gertler also initially attributed Mr Bannerman’s ‘chronic anxiety state’ to Mr Bannerman’s workplace. At the hearing, faced with a hypothesis that Mr Bannerman’s workload and travel requirements were not excessive, he agreed that employment would not have made a ‘material contribution’ to these conditions. He posited that the vertigo, and Mr Bannerman’s personality traits could have contributed, but reiterated that the workplace would only have contributed ‘to some extent’.
131. In summary, the predominant medical evidence does not support that Mr Bannerman’s stress disorder was caused by conditions in his workplace post July 2005. Even if it is possible, as Dr Cowan hypothesised, for fatigue to enhance susceptibility to illness, and it is noted that Mr Pasturczak conceded that Mr Bannerman was fatigued in the latter part of 2005, whether Mr Bannerman’s illnesses were due to that factor is too speculative to satisfy the Tribunal to the requisite standard. On that basis, the medical evidence supports the Tribunal’s earlier findings.
132. In conclusion, the Tribunal finds that Mr Bannerman's conditions of viral labyrinthitis and stress were not materially contributed to by Mr Bannerman's employment. The decision under review is affirmed.
I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .............[sgd]..................................
AssociateDate/s of Hearing 5 – 8 July 2010
Date of Decision 8 September 2010
Counsel for the Applicant Wayne Sharwood
Solicitor for the Applicant Maurice Blackburn
Counsel for the Respondent Ellenne Forde
Solicitor for the Respondent Sparke Helmore
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