Burnham and Comcare
[2003] AATA 1054
•17 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1054
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/62
GENERAL ADMINISTRATIVE DIVISION ) Re HUGH BURNHAM Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date17 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim by Hugh Burnham for compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988. ..............Signed................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
COMPENSATION – application made in 2002 in relation to work events in 1985 – whether respondent prejudiced
Safety, Rehabilitation & Compensation Act 1988: ss 53, 124
Compensation (Commonwealth Government Employees) Act 1971: s54
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Hugh Burnham, the Applicant, to review a decision to reject a claim made on 22 April 2002 for compensation for a condition described as “severe post-traumatic stress disorder – depression (suicidal)” on the ground that the Applicant’s claim was not made as soon as practicable after he became aware he was suffering from a psychiatric illness.
2. The Applicant claims that he suffers from Post Traumatic Stress Disorder (PTSD) as a result of experiencing harassment, bullying, working with x-rays, hazardous chemicals and radio-active materials, when he was employed by the CSIRO in the mid 1980s.
3. The following matters are not contentious and the Tribunal finds as follows:
(a)Hugh Burnham was born on 2 January 1961.
(b)He was first employed by the CSIRO on 13 July 1983 as a government trainee.
(c)He qualified to be made a “permanent” employee at CSIRO on 25 November 1983 – but it was not immediately confirmed because he had a history of suffering from depression.
(d)He was eventually confirmed as a permanent employee on 1 November 1984.
(e)He resigned from the CSIRO on 20 February 1985.
4. The records show that between mid 1984 and late 2002, Mr. Burnham has been treated by approximately 44 different medical practitioners on a total of about 180 occasions, including the following psychiatrists for the following corresponding periods:
Doctor Number of Period
OccasionsI.C. Pitts 25 15.9.84 to 21.10.85
I.V. Jackson 5 10.6.87 to 28.11.88
W.H. Orchard 5 1.7.91 to 24.7.91
H.R. Hewland 9 4.9.01 to 20.8.02
5. The available psychiatric reports contain the following material relevant to this review:
Dr. Robyn Hewland, 4 September 2001
“His talk included: ‘In my final year (1977) at Campbell Grammar (private, Victoria), from a teacher. All my complaints to my parents were disregarded. They were never there for me. I was left feeling different, as if homosexual, but found out later I wasn’t. I have run away for years, tried courses at University but never completed any. At CSIRO I took heroin (1983), but none for past 10 years. A psychiatrist abused me too then. I’m so exhausted, running on empty. At 40 I feel as if not grown (since abuse). I’ve been so angry, anti-authority, into protest marches, and now against world economy, but stay on the internet till 2 am, to avoid memories.’ He was refused unemployment benefit as had moved to a high unemployment area here, 7 months ago!
I aroused hope, and explained PTSD symptoms from sexual abuse, biological basis of depression and medication, and that the brain can be retrained, with repetition, via new protein molecules in positive paths. I gave him 14 tabs of zoloft 50 mg, and, a Sickness Benefit form for 12 months.”
Dr. Bill Orchard, 24 July 1991
“I have left it with Hugh that I will see him again at any time provided he wishes to go along with what I recommend. I enclose a copy of his MMPI and a personality test. Despite Hugh’s pleasant style initially, in interview he frequently became unrealistically aggrieved and very sullen. He has distinct mood swings with suicidal tendencies and rage reactions and this story, combined with his psychotic MMPI suggested to me that he could disintegrate in intensive psychotherapy if he was not under the protection of some biological treatment. I believe that he has the potential to respond quite significantly to lithium medication and that he has a bipolar illness. He would not countenance a trial on this even though it was made clear to him that the medication was not addictive, he would see how it affected him commencing in approximately five days time and he would be free to go off it as the consumer.
Eventually I left the situation open with him to return if he wanted to give the lithium a trial. He has been given the name of half a dozen skilled psychotherapists and I will be happy to write a referral to them if he telephones.
He is a rather tragic young man and drugs have obviously contributed to his self destruction. He is now deeply envious and has limited hope that any one can help him. He might be reached without drugs by a very gentle therapist particularly a woman.”
Dr. Ian Pitts, 2 September 2002
“Hugh was referred to me for counselling, in Melbourne, in February 1985. I was aware that he had been prescribed stellazine, an anti-psychotic drug, by another Psychiatrist.
During the time I saw him, he was in an extremely agitated state and suffering from severe depression. He had a very disturbed sleeping pattern and experiencing hallucinations (about intruders at night) and anxiety attacks. I had difficulty determining, over that short period, whether some of his experiences were of a real or paranoid nature.
At that time, Hugh did not make me aware of any childhood trauma which may have contributed to his mental stage.
He certainly informed me of his physical work environment and his heightened anxieties about work relationships. I spent a good deal of time trying to resolve those stressful issues and to seek a delay in any decision regarding resignation. I believed that, in his state of mind, it was best that he try to solve the existing problems rather than to enter an unstable ‘out of work situation’.
In early 1985 I was in the process of relocating to Sydney and, unfortunately, could not offer ongoing support. I felt that Hugh would benefit from becoming involved in a personal development group, I knew about, and recommended it to him.
It was most regrettable that I lost contact with Hugh at that critical time. I reiterate, however, that he was far too unwell, due to stress and depression, to attend work during the early months of 1985.”
6. The section 37 statement contains statements by Graham Black, Personnel Manager at CSIRO, and by Professor John Drennan, Director, Centre for Microscopy and Microanalysis, former supervisor of the Applicant at CSIRO.
7. Mr. Black states that a check of the Applicant’s CSIRO file fails to indicate any claim by him of having indicated to management that he had been subjected to harassment of any kind.
8. Professor Drennan stated that he remembers talking to the Applicant on numerous occasions about matters of a very confidential nature concerning his life, but the Applicant never mentioned anything about difficulties with other workers in the laboratory. Professor Drennan also went on to say that the laboratory environment was close knit and he believes that he would have known if there had been any consistent harassment. He is not aware of any harassment, nor of bullying.. He would have taken a particularly serious view of cases of bullying if there had been any.
9. I am satisfied that the claim for compensation relates to events which are alleged to have happened in 1983, 1984 or 1985. I am also satisfied that the Applicant was suffering from a psychiatric illness immediately prior to, during, and immediately after, his employment with CSIRO.
10. Consequently, any entitlement to compensation at the time of the contraction or aggravation of the Applicant’s psychiatric illness would have been covered by the Compensation (Commonwalth Government Employees) Act 1971 (the 1971 Act).
11. This claim was made on 22 April 2002, and is now covered by the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act). Section 124 of the 1988 Act allows for claims to be made in relation to injury, loss or damage suffered before the commencing day of the 1988 Act, if compensation was, or would have been payable to the Applicant in respect of that injury, loss or damage under the 1971 Act.
12. The legislation relevant to this claim is as follows:
1988 Act
“SECTION 53 NOTICE OF INJURY OR LOSS OF, OR DAMAGE TO, PROPERTY
53(1) [Notice required re injury] This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury;
….
53(3) [Defective notice] Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
SECTION 124 APPLICATIONS OF ACT TO PRE-EXISTING INJURIES
124(1) [General] Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
124(1A) [Earlier Acts] Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
124(2) [Where compensation would not have been payable] A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.
1971 Act
“Time for making claims for compensation
54. (1)Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
(2)If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is –
(a)in the case of a claim in relation to an injury to the claimant -
(i)the period of six months commencing on the day of the injury; or
(ii)if the claimant was not, immediately after the injury, aware that he had sustained an injury – the period of six months commencing on the day on which he became so aware;
(b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant – the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease;
….
(6) Where –
(a) a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section.”
13. The Applicant claims that he did not know that he had PTSD until it was diagnosed by Dr. Hewland in September 2001. He claims, therefore, that he has made his claim for compensation within a time frame commensurate with the expression “as soon as practicable after the employee becomes aware of the injury”.
14. The Tribunal is satisfied that the Applicant knew that he was suffering from a psychiatric illness in 1985. If he believed at that time that the conditions of his employment at CSIRO caused his condition, aggravated it, or in some way contributed to it, he should have made a claim for compensation in 1985 or within a reasonable time thereafter.
15. The Applicant has not notified his employer, nor made his claim as soon as practicable after he became aware of his illness. He certainly did not notify his employer nor make a claim for compensation within six months of contracting or experiencing an aggravation of his psychiatric illness.
16. The failure to make the claim does not stem from any of the factors set out in subsection 54(6) of the 1971 Act.
17. The Tribunal is satisfied that if this claim were treated as a sufficient claim, or as sufficient notice, the relevant authority would be prejudiced for the following reasons:
(a)If witnesses could be found to give evidence about working conditions at CSIRO in 1983, 1984 or 1985, they would be required to remember incidents which may or may not have occurred nearly twenty years ago. Their reliability would be most suspect in those circumstances.
(b)The Applicant had a psychiatric illness throughout the period 1983 to 1985, and has received medical treatment on a regular basis since. The Respondent has not had any chance to monitor the Applicant’s various illnesses over the past 20 years.
(c)Over the past 20 years, the Applicant may have had any number of experiences which could have caused, aggravated or contributed to his current level of disability. The Respondent would have great difficulty in discovering what factors have impinged on the Applicant’s mental state in that time.
18. The decision to reject this claim is affirmed.
I certify that the 18 preceding paragraphs are a true copy of he reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 9 July 2003
Date of Decision 17 October 2003
Counsel for the Applicant Mr. Burnham, himself
Counsel for the Respondent Mr. C. Clark
Solicitor for the Respondent Sparke Helmore
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