Barwick and Comcare
[2005] AATA 1049
•21 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1049
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/388
GENERAL ADMINISTRATIVE DIVISION ) Re LYLE BARWICK Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 21 October 2005
Place Canberra
Decision The decision of Comcare made 11 October 2004 that it is not liable to pay compensation to Mr Barwick for the depressive disorder suffered by him is affirmed.
..............................................
CATCHWORDS
COMPENSATION – claims – “depressive disorder” – whether materially contributed to by employment - Applicant experienced various other stressors outside of his employment – lack of evidence supporting claim that work caused the injury – injury not compensable – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 19
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Australian Postal Corporation v Barbara Bywater [1997] 747 FCA (11 August 1997)
REASONS FOR DECISION
21 October 2005 J.W. Constance, Senior Member
INTRODUCTION
1. Mr Barwick is a senior Public Servant who has had a long and successful career, initially with the Department of Social Security and then with Centrelink.
2. Unfortunately 2002 was a difficult year for him. He experienced difficulties at home and at work and by mid 2003 he was diagnosed as suffering from depression. This illness caused him to be totally unfit for work for many months. Even now he has not returned to full-time work.
3. Mr Barwick has made a claim for compensation for this incapacity under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare has rejected his claim and Mr Barwick has sought a review of that decision.
4. For the reasons set out I am not persuaded that Mr Barwick’s depression was contributed to in a material degree by his employment with Centrelink. The decision of Comcare will be affirmed.
FACTS
5. Unless otherwise stated, the following findings of fact are based on the evidence of Mr Barwick. I am satisfied of these facts on the balance of probabilities.
6. Aside from part-time jobs as an undergraduate student, Mr Barwick’s whole working career has been with the Australian Public Service. He joined the Department of Social Security in 1978 and transferred to Centrelink in 1997. By 2002 he had reached an Executive Level 1 position.
7. Prior to 2002 Mr Barwick had managed well at work and had not suffered any psychiatric illness. He rarely had any cause to seek medical assistance.
8. In January 2002 Mr Barwick and his wife separated by agreement but continued to live under the same roof with their daughter. Following the separation Mr Barwick and his wife negotiated issues relating to their separation, including Mr Barwick’s continuing relationship with his daughter and the settlement of family property. These questions were resolved by the registration of an agreement in the Family Court in December 2002. Mrs Barwick and their daughter left the family home in late 2002 and moved to Melbourne. Mr Barwick has always been very close to his daughter.
9. Mr Barwick gave evidence that during 2002 “there were a whole range of separate issues at work.” He said that realignment (by which I understood him to mean organizational change) was taking place within his own section and at a higher level at a much faster rate than usual.
10. In August or September 2002 Mr Barwick was given a new project at work. He described this as “a no-goer” and told his superiors of his view. Nevertheless he was told to proceed with the project which he did until it was abandoned at about the end of the year.
11. Between November 2002 and January 2003 Mr Barwick was given another new project following his having expressed a desire to try a new work area. Mr Barwick continued to have staff to assist him with this project. Mr Barwick received no special training in this area but he did have access to appropriate manuals.
12. In mid March 2003 Mr Barwick visited his daughter in Melbourne.
13. Mr Barwick first sought medical help on 18 March 2003 when he consulted a local general practitioner, Dr Ng. Dr Ng’s notes of 18 March 2003 [1] record “tough divorce recently work OK”. This was Mr Barwick‘s first visit to Dr Ng. He later referred Mr Barwick to Dr Lubbe, Psychiatrist, who diagnosed him as suffering from major depression.
[1] Ex. R1.
14. In March or early April 2003 Mr Barwick was given yet another new task, again in an area in which neither he nor his staff was experienced. He arranged the recruitment of Ms Debra Barnes, a friend from interstate to assist him with this work. Unfortunately Ms Barnes suffered from an illness which worsened, and on 1 May 2003 she left the position after only 3 days. At the time Ms Barnes blamed Mr Barwick for the recurrence of her illness and there has been little contact between them since.
15. Comcare called Mr Fletcher, who was Mr Barwick’s manager from March 2002 until November 2003 and from July 2004 until December 2004. In his statement of 29 March 2004 [2] Mr Fletcher said that ‘Lyle appeared very happy that Debra had taken the job and was beginning to look keen and focused for the first time in quite a while.” However when Mr Fletcher spoke to Mr Barwick as to why Ms Barnes was not at work on 1 May 2003 Mr Barwick became very distressed and said that Ms Barnes was ill and had to return to Brisbane. Mr Barwick was absent for ½ day of that and the following day and for the next week.
[2] Ex. R4.
16. On 29 May 2003 Dr Ng certified Mr Barwick to be unfit for work. After a time he returned to work but was unable to continue and was off work for a further period from July 2003 until December 2003. He returned to work on a graduated basis but this was not successful and he was off work from January 2004 until mid 2004. He has gradually returned to work since that time and is now working 4 days per week.
17. On 5 June 2003 Mr Barwick was assessed for his fitness for work by Dr Le Leu of Health Services Australia. Dr Le Leu reported that Mr Barwick was unfit for work by reason of an unknown condition.[3] He also reported that:
“He [Mr Barwick] says that, around January/February this year a whole lot of things ‘clicked at once’:
·he was separated and really misses his daughter aged 14; he only has one child and she went to live in Melbourne late last year;
·he had a whole lot of hassles at work;
·a friend of his is very sick and is probably going to die. She has complex regional pain syndrome producing pain all over the body (although that does not result in death that I know of).”
[3] Ex. A1,T4.
18. Mr Barwick felt that his health “was probably going down-hill” from late 2002. From this time Mr Barwick began to suffer problems with sleeping, his appetite decreased and he lacked concentration. He began to feel weary and became withdrawn. Comcare accepts that he was experiencing symptoms of depression from December 2002.
19. Mr Barwick felt that whilst he had responsibility for the various projects he had been given, he did not have the knowledge, resources or experience to carry them out, and as a result he could not meet his own standards. In giving evidence he said that he “lost a little bit of control” and could not keep up with his work. He said that while there were “other factors in the background, the thing that really got to me was work.”
20. Mr Fletcher gave evidence as to the work done by Mr Barwick during this period including the work involved in the special projects that Mr Barwick identified as causing him particular difficulties. In Mr Fletcher’s opinion all tasks required of Mr Barwick were within the capacity, both as to time and capabilities, of Mr Barwick and his team. Mr Fletcher agreed that on one project Mr Barwick had a need for extra staff. It was this project for which Mr Barwick’s friend was engaged, but was unable to continue in the position by reason of her illness.
21. Mr Fletcher confirmed that there had been a lot of changes in teams within the organization in the period December 2002 to June 2003 but he remained Mr Barwick’s team leader and most of the team stayed together.
22. From early 2003 Mr Fletcher worked at the desk next to Mr Barwick. He had arranged this deliberately as he had some concerns in relation to Mr Barwick’s performance. From this time he observed that Mr Barwick was having some difficulty applying himself to his work.
23. Mr Fletcher has approximately 25 years experience as a manager within the Public Service. Other than Mr Barwick himself Mr Fletcher is the person in the best position to comment on Mr Barwick’s work situation during the period Mr Barwick claims his work was contributing to his illness. Mr Fletcher impressed me as a witness who was giving his evidence fairly and objectively and I accept his evidence.
24. On 25 May 2003 when Mr Barwick was feeling particularly ill he consulted another general practitioner, this time at the Canberra After Hours Locum Medical Service. In the CALMS notes of 25 May 2003 [4] Dr Fletcher recorded a history from Mr Barwick in part as follows:
“Separated from wife + daughter since December 2002 – they live in Melbourne. He has been feeling stressed + depressed….A friend is very sick.”
[4] Ex. R2.
There is no reference in the notes to difficulties at work. Mr Barwick does not recall any such discussion.
25. In October or November 2004 Mr Barwick consulted another general practitioner, Dr Brown. Dr Brown referred him to Dr Knox, Consultant Psychiatrist. Dr Knox changed Mr Barwick’s medication and Mr Barwick says he has been feeling much better since.
STATUTORY BACKGROUND
26. Under sections 14 and 19 of the Act Comcare is liable to pay compensation for an injury suffered by an employee if the injury results in incapacity for work.
27. “Injury” includes “a disease” and “disease” means:
“(a) any ailment suffered by an employee; or
(b) the aggravation of such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”. [5]
[5] S. 4.
THE ISSUE
28. The issue for determination is whether the depression suffered by Mr Barwick was “contributed to in a material degree” by his employment.
FURTHER MEDICAL EVIDENCE
29. In her report of 22 June 2004 [6] Dr Lubbe stated that the aetiology of major depressive illness is multifunctional and that in her opinion in Mr Barwick’s case “the losses that he has suffered (loss of marriage, loss of daily contact with [his] daughter) and tensions at work would be the most obvious engendering factors.” In giving evidence Dr Lubbe said that Mr Barwick was “very upset” about his wife and daughter and that most of her discussions with Mr Barwick concerned them.
[6] Ex. A1, T30.
30. Dr Lubbe also stated that, as Mr Barwick’s psychiatrist, the important consideration for her was the nature of the problem rather than its causes. She agreed that it was difficult to tell the degree to which work factors contributed to his depression or if in fact they contributed at all.
31. A report by Dr Knox of 6 December 2004 [7] was tendered by Mr Barwick. Prior to writing that report Dr Knox had seen Mr Barwick on one occasion on referral from Mr Barwick’s general practitioner. His opinion was that “Mr Barwick has a chronic depressive condition with features of anxiety.…It would seem likely that Mr Barwick’s depression was significantly contributed to by workplace matters, on the background of the separation from his wife and access difficulties to his child.”
[7] EX. A2.
32. Dr Donsworth, consultant Psychiatrist, interviewed Mr Barwick on 16 March 2005 at the request of Comcare’s solicitors for the purpose of these proceedings. Dr Donsworth gave evidence and confirmed the contents of her report of 18 March 2005.[8] In her opinion the diagnosis of Mr Barwick’s condition is Major Depressive Disorder which developed around the end of 2002 and first became overt in March 2003. In her opinion “the symptoms of depression, which became overt in March 2003 had a secondary effect on Mr Barwick’s ability to cope with work.” [9]
[8] Ex. R6.
[9] Ex. R6.
33. In the opinion of Dr Donsworth Mr Barwick’s work did not contribute to the depression and there was no significant aggravation or acceleration of it caused by work. She gave as reasons for this conclusion that:
·when Mr Barwick stopped work there was no appreciable improvement in symptoms until several months later;
·the marriage breakdown, the court proceedings, the loss of living-together contact with his daughter, the need to take financial loans and his sudden single status were major contributing factors, although now denied by Mr Barwick;
·neither Mr Barwick nor Mr Fletcher were able to identify a particularly stressful situation at work which could be seen as a trigger to the onset of the illness;
·the illness of Ms Barnes with whom Mr Barwick had a friendship which was of considerable importance to him.
REASONING
34. As there has been no acceptance by Comcare of liability for the illness suffered by Mr Barwick I must be persuaded that, on the balance of probabilities, Mr Barwick’s employment contributed in a material degree to the depression he suffered. However once the link is established as a matter of fact, the extent of the contribution does not matter: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323. Although the Court was dealing with the 1971 Act these principles are equally applicable to the present legislation: Australian Postal Corporation v Barbara Bywater [1997] 747 FCA (11 August 1997).
35. Considering all of the evidence I am not satisfied that Mr Barwick’s depression was contributed to in a material degree by his employment. The views of the various medical practitioners vary and I am not persuaded that one is preferable to the others.
36. Mr Barwick has argued that I should prefer the views of Dr Lubbe and Dr Knox to those of Dr Donsworth as the former are his treating doctors. Whilst this a factor for consideration I also take into account that Dr Lubbe agreed that as a treating psychiatrist she was concentrating on the problem more than its cause. Further, she acknowledged the difficulty in determining whether work factors in fact contributed at all. Dr Knox became a treating specialist, but at the time he wrote the report in evidence he had only assessed Mr Barwick on one occasion and he did not indicate in his report that he had considered all of the factors considered by Dr Donsworth.
37. Dr Donsworth provided a detailed report and assessment of the various stressors to which Mr Barwick was subject. She remained firm in her views when she gave evidence and her opinion was strengthened by the further information she was provided concerning the depth of the friendship between Mr Barwick and Ms Barnes. She was unaware of this information when she wrote her report.
38. There are a number of incidents which in my opinion support Dr Donsworth’s view as being an equally reasonable alternative opinion to those upon which Mr Barwick relies. Those which I have taken into account are:
· the extent of the personal stressors experienced by Mr Barwick in 2002;
· that his symptoms were first experienced at about the time his wife and daughter left the home and moved to Melbourne;
· that Mr Barwick first sought medical assistance immediately after his visit to see his daughter (who he “really missed”) in March 2003;
· at his first visit to his general practitioner he apparently referred to his marriage break up but indicated that his work was “OK.”;
· he felt particularly ill shortly after the incident involving Ms Barnes and when he sought medical help he did not refer to his work but to his separation and to the illness of his friend;
· Mr Barwick’s poor work performance may have been a result of his depression rather than a cause of it;
· Mr Barwick was not subject to undue work pressures for an employee of his experience and with the level of support that was provided to him.
39. For these reasons I am not persuaded that on the balance of probabilities Mr Barwick’s illness was contributed to in a material degree by his employment by Centrelink.
DECISION
40. The decision of Comcare made 11 October 2004 that it is not liable to pay compensation to Mr Barwick for the depressive disorder suffered by him is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member
Signed: .........................................................................
Associate (Melanie Wade)
Date/s of Hearing 17-19 October 2005
Date of Decision 21 October 2005
Solicitor for the Applicant self-representedCounsel for the Respondent Lorraine Walker
Solicitor for the Respondent Australian Government Solicitor
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