Caldwell and Comcare
[2008] AATA 450
•30 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2005/384
GENERAL ADMINISTRATIVE DIVISION ) Re PHILLIP CALDWELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member
Date 30 May 2008
Place Canberra
Decision 1. The reviewable decision of Comcare made 30 November 2005 is set aside.
2. In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 Comcare is liable to compensate Mr Caldwell in respect of an injury being a psychiatric condition which first resulted in the impairment of Mr Caldwell on 23 December 2003 and which was contributed to in a material degree by his employment by ActewAGL.
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Caldwell.
..................[signed]...................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – whether ‘disease’ contributed to in a ‘material degree’ by employment by employment – whether disease a result of ‘reasonable disciplinary action’ – whether disease a result of ‘failure to obtain a benefit’ – whether injury caused by ‘serious and wilful misconduct’ – injury contributed to in a material degree by employment – decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14
Adams and Australian Postal Corporation [1993] AATA 355
Comcare v Calipari [2001] FCA 1534
Comcare v Eames [2008] FCA 422
Comcare v Sahu-Khan [2007] FCA 15
Commission of Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Re Elvin and Comcare (1998) 51 ALD 706
Re Hardman and Inco Ships Pty Ltd (2006) 92 ALD 663
Inco Ships Pty Ltd v Hardman [2007] FCA 1138
Johnson v Marshall Sons & Co Ltd [1906] AC 409
Kelly and Comcare (2006) 93 ALD 658
Weigand v Comcare Australia (No 2) [2007] FCA 237
REASONS FOR DECISION
INTRODUCTION
4. Mr Caldwell is seeking a review of a decision by Comcare to deny liability to compensate him for an injury which he says was contributed to by his employment as a switcher employed by ActewAGL. For the reasons which follow the decision shall be set aside and a decision accepting liability will be substituted.
FINDINGS OF FACT
5. Unless otherwise stated the following findings of fact are based on the evidence of Mr Caldwell. We are satisfied of the facts found on the balance of probabilities.
6. In 1985 Mr Caldwell started work with the predecessor of ActewAGL as a cable layer. He qualified as a linesman in 1990 and from that time onwards he was accustomed to working with live electricity lines, protected by safety gloves. Later he obtained his "A" grade qualifications which allowed him to work with live lines without supervision.
7. Mr Caldwell worked as a linesman until he qualified as a switcher about 1999. The task of a switcher is to disconnect and restore power to a site and to ensure that the site is safe. The work includes submitting the necessary paperwork associated with the switching tasks as well as advising the linesmen working on the job. Initially Mr Caldwell qualified as a low voltage switcher which entitled him to work with lines carrying up to 415 volts. In time Mr Caldwell gained qualifications to work with all low voltage equipment except capstans. A capstan is a circuit breaker. It is highly conductive and the capstan is “live” when closed. Capstans are no longer installed in the Australian Capital Territory in new installations. During his training (some years prior to 2002) Mr Caldwell was told that capstans were “deadly circuit breakers” and to be careful of them.
8. In 2002 Mr Caldwell was a switcher working with eight senior crew engaged in pole replacement. As well as undertaking the necessary work in relation to the switching of the power he worked with the linesmen replacing defective poles. During the months leading up to 3 April 2002 Mr Caldwell’s workload increased to the point that he felt that it was "getting away on him a bit." On occasions he had insufficient time to properly complete all of the tasks for which he was responsible. During part of this period the crew had one member less than its normal complement. This added to Mr Caldwell’s work load.
9. Mr Winchester was employed by Actew AGL as a Works Implementer from October 2001 until 31 August 2002. In this position he distributed the work for approximately four teams, including the team of which Mr Caldwell was a member. [1] Mr Winchester described the method of allocation of work as follows:
“When a job is created, Asset Performance, another part of the organisation, puts a "blue work pack" together. Each blue work pack contains a job description, the job location, a drawing, the tasks required and related asset clearances, for example, Telstra. This blue work pack is then given to the Resource Planner who then allocated to the Works Implementer (my role at the relevant time), who then allocates it to the relevant Team Leader.
The Team Leader is the local job supervisor who directs the team on-site, organises materials allocates resources in conjunction with the Works Implementer. The switcher is responsible for investigating and organising the electrical system to be isolated to carry out the work including notifying through the normal mailing process customers affected by the isolation. The Team Leader and switcher usually scope the job prior to the programmed day."
[1] Ex.R1, doc.B6.
We accept this evidence.
10. On 25 March 2002 Mr Calwell informed Mr Winchester that he was having difficulty in properly completing all of the work allocated to him, including the paper work to which he was required to attend prior to undertaking a particular switching operation. Mr Caldwell’s concerns were not addressed prior to the accident.
11. Mr Winchester agreed that it was possible that Mr Caldwell raised these concerns with him although he did not recall this. He said that if the concerns were raised he would have taken steps to address them in the days and weeks following. [2] Mr Caldwell was far more certain in his evidence in this regard than was Mr Winchester and we prefer the evidence of Mr Caldwell.
[2] Transcript 6.2.08 pp-25-26.
12. The accident involving Mr Caldwell, to which we will refer in more detail later, occurred on Wednesday 3 April 2002. The preceding Friday to Monday was Easter. On Good Friday and Easter Saturday Mr Caldwell worked considerable periods of overtime necessitated by storm damage to power lines.
13. On 3 April 2002 Mr Caldwell got out of bed at 4 am in order to be at the work site by around 5.30 am so that he could carry out the switching work to enable the crew of linesmen to replace a defective pole. He had been told that the job required the establishment of a backfeed line to provide an uninterrupted power supply to businesses at the nearby Mawson Shopping Centre. Mr Caldwell understood that the job needed to be completed by 8am when an expected increase in the demand for electricity in the Centre may overload the backfeed. As a result Mr Caldwell felt under some pressure to have his work and that of the crew, completed within this timeframe. The crew with which Mr Caldwell was to work that morning was not his usual crew.
14. It was a requirement of ActewAGL that before Mr Caldwell started the switching operation that morning he would have submitted two forms to the Control Centre which supervised all switching work. The first of these was a System Switching Request which requested permission to disconnect and reconnect the power supply for the purpose of carrying out the allocated work. [3] Mr Caldwell submitted this form on 26 March 2002,[4] although he dated it 27 March 2002. The form has a notation indicating that the Control Room received the request on 26 March 2002.
[3] Ex.R1, doc.B6, attachment A.
[4] Statement of Robert Winchester Ex.R1 doc.B6.
15. The second form which was required to be lodged by the switcher was a “Disconnection and Reconnection Instruction for the Low Voltage Network”. This form was intended to provide further details as to how the job was to be carried out and was normally completed by the switcher after he had attended the site and considered the scope of the work allocated. Mr Caldwell did not lodge this form in relation to the switching he carried out on 3 April 2002. He gave evidence that had not had time to attend the site to scope the work and that he forgot to lodge the form. Mr Caldwell said also that at the time his understanding was that as he was not an emergency switcher the Control Room was required to refuse permission to proceed with a job for which there was no such form. We accept this evidence. There is no evidence to suggest that the Leading Hand undertook any scoping of this job and we are satisfied on the balance of probabilities that he did not.
16. The Switching Request has the following notation printed by hand:
“No LV DNR submitted with SSR”.
We accept the evidence of Mr Caldwell that these words were not added by him and were not on the form when he submitted it. We are unable to determine who added these words or when they were added.
17. When Mr Caldwell opened the substation on the morning of 3 April 2002 it was still dark. He worked by torchlight. On opening the substation he found that it contained capstans, equipment which he knew he was not authorized to operate. In answer to a question whether he knew what to do to isolate the power using the capstan links Mr Caldwell gave the following evidence, which we accept:
“To do the switching on that, no I wasn't up to speed on it. No, but through all the years as a linesman you just did it. I was always hands-on and I thought if I was really careful I could have -- could have done it without a dangerous situation occurring." [5]
[5] Transcript 4.2.08 p-40.
18. In order to complete the switching operation Mr Caldwell had to loosen a tumbler which formed part of the capstans. As he was endeavouring to undo the tumbler using multigrips an electrical flash-over occurred. Mr Caldwell was thrown backwards out of the substation. He lost consciousness for a short time. His hair and eyebrows were singed and he suffered a laceration to one of his fingers. His eyes were sore from the flash. Mr Caldwell was wearing insulating gloves at the time.
19. Mr Caldwell estimates that he took five to ten minutes to regather his thoughts. He then walked to the back of his truck which was nearby. By this time the Leading Hand had arrived and Mr Caldwell told him what had happened. It appears that Mr Caldwell disconnected the back feed, informed the crew that the job was not proceeding and telephoned the Control Room and advised that the job was cancelled. He did not advise the Control Room of the incident. Mr Caldwell has some recollection of these actions but it is not clear.
20. At his request Mr Caldwell was then taken to The Canberra Hospital as he did not feel well. He was in hospital for about six hours and was then driven to his home by his work co-ordinator. We will set out further findings as to the events of the days following the incident when we deal with particular issues.
21. Following the incident ActewAGL appointed a Switching Review Committee to investigate the incident and to recommend to the Chief Executive what, if any, disciplinary action should be taken against Mr Caldwell. As a result of the report and recommendations of the committee the Chief Executive advised Mr Caldwell of the following by letter of 30 May 2002:
·you shall be suspended from switching for a period six(6) months and should not undertake these duties until such time you are assessed as competent;
·at the completion of this suspension you will be fully re-assessed in written and practical requirements of switching on the ActewAGL Distribution Network;
·In accordance with Clause 14.1 .3 - Discipline Procedure of the Enterprise Agreement, this letter is a Stage 2 -- First Written Warning;
·you will be demoted to Electrical Worker paypoint 6.3 for a period of six months, effective from today. You will be required to undertake all tasks consistent with this paypoint. [6]
[6] Ex.R1, B2.
22. Action was taken against Mr Caldwell accordingly. We shall set out further findings as to events which occurred after Mr Caldwell received the letter when we deal with particular issues.
23. On the basis of the evidence of Mr Maher we find that in 2002, [7] after a person had not been engaged in switching duties for a period between three and six months, ActewAGL required that person to be reassessed before resuming those duties. In Mr Caldwell’s case the requirement for assessment at the end of the suspension period was imposed as part of the disciplinary process. However once the assessment had taken place, regardless of the result of that assessment, the disciplinary process was at an end.
[7] Transcript pp-75 and following.
24. Mrs Caldwell gave evidence that during the 16 years of her marriage to Mr Caldwell prior to the accident he did not exhibit any “odd or worrying behaviours.” [8] However Mrs Caldwell said that following the accident Mr Caldwell was “very reserved, quiet, stunned” and that “you couldn’t talk work really. He would, sort of, get a bit agitated.” [9] Having observed Mrs Caldwell give evidence we are satisfied that she was a truthful witness and we accept her evidence.
[8] Ex.R1, doc.B8.
[9] Transcript 6.2.08 p-3.
25. On the basis of the evidence of Mrs Caldwell and the medical evidence to which we refer later in these reasons, we are satisfied that after the accident Mr Caldwell’s mental state gradually deteriorated and that in December 2003 he engaged in unusual behaviour and became delusional. In March 2004 he was diagnosed as having suffered a psychotic episode in December 2003.[10].
[10] Ex.R1, doc.A1.
RELEVANT LEGISLATION
26. We have to determine whether Comcare is liable to compensate Mr Caldwell in respect of an injury in accordance with section 14 of the Safety, Rehabilitation andCompensation Act 1988.
27. Section 14 of the Act relevantly provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
28. “Injury” is defined in subsection 4(1). The relevant parts of that definition are:
(a) a disease suffered by an employee;
…
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
29. “Disease” is also defined in subsection 4(1):
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
30. “Ailment” is defined also:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
THE ISSUES
31. The following issues arise for determination.
1)Has Mr Caldwell suffered a “disease”, ie. an ailment “that was contributed to in a material degree” by his employment by ActewAGL?
2)If so, was the disease suffered by him “as a result of reasonable disciplinary action” taken against him?
3)If not, was the disease suffered by him as a result of his “failure … to obtain a … benefit in connection with his … employment” ?
4)If Mr Caldwell suffered an injury was it caused by his “serious and wilful misconduct”?
MEDICAL EVIDENCE
Dr Tran, Consultant Psychiatrist
32. Mr Caldwell’s general practitioner Dr Sood referred Mr Caldwell to Dr Tran for psychiatric assessment. This assessment was carried out in March 2004. In her report of 22 March 2004 Dr Tran stated that Mr Caldwell presented with “a three month history of psychotic symptoms, delusions and hallucinations at the background of family history of psychiatric disorder, possible early emotional problems, a fragile sense of self, unresolved losses and separations and some work difficulties…[m]y provisional diagnosis for Phillip Caldwell is a psychotic episode …” [11]
[11] Ex.R1 A1.
Dr Corcos, Consultant Psychiatrist
33. Dr Corcos assessed Mr Caldwell in May 2004, but it should be noted that the assessment was not for the purpose of determining the cause of his mental condition. In the opinion of Dr Corcos at the beginning of 2004 Mr Caldwell suffered a psychotic mental illness, a precipitant of which was the accident at work. Dr Corcos also identified the change in his position at work as a pressure operating on Mr Caldwell at the time.[12]
[12] Ex.R1 A2.
Dr Knox, Consultant Psychiatrist
34. Mr Caldwell was assessed by Dr Knox in September 2004. This assessment was at the request of ActewAGL. At the time Dr Knox did not find any evidence that Mr Caldwell had a significant mood disorder. He described Mr Caldwell’s condition as complex and was unable to make a firm diagnosis. He suggested further testing be carried out.[13]
[13] Ex.R1, A4.
35. In October 2006 Dr Knox was provided a number of clinical records and reports of other professionals relating to Mr Caldwell and asked to provide his further opinion. Dr Knox did not examine Mr Caldwell further. Having reviewed the documents provided Dr Knox reported the following:
·in his opinion it was likely that Mr Caldwell had suffered a Psychotic Disorder associated with some degree of Depressive Disorder;
·Mr Caldwell’s employment with ActewAGL was likely to have contributed to his illness.[14]
[14] Ex.Ri, A18.
Dr Morice, Consultant Psychiatrist
36. Mr Caldwell was admitted to The Canberra Hospital under the care of Dr Morice in October 2004. After testing of Mr Caldwell Dr Morice was able to exclude organic mental disorder. He was of the opinion that Mr Caldwell suffered Major Depressive Disorder. Following Mr Caldwell’s discharge from Hospital he consulted Dr Morice on a further three occasions, the last being in July 2005. Dr Morice reported that some early improvement, which he attributed to medication, was not maintained in July 2005.[15]
[15] Ex. R1 A14.
37. Dr Morice reported further:
“…he did demonstrate unusual and atypical (for him) behaviour that could have stemmed, even indirectly, from his electrocution. Equally, the changes observed in him could have been of a predominantly psychological nature.”
Dr Stern, Consultant Psychiatrist
38. Dr Stern assessed Mr Caldwell at the request of his solicitors in May 2005. In his report of 20 May 2005[16] Dr Stern expressed the opinion that:
·Mr Caldwell was suffering from Major Depressive Disorder and Delusional Disorder caused by the incident on 3 April 2002;
·his change of duties aggravated his depression and paranoia;
·at the time Mr Caldwell was incapacitated for all work by reason of his psychiatric condition.
[16] Ex.R1 A7.
39. Having reassessed Mr Caldwell in August 2006 Dr Stern reported that :
·Mr Caldwell still suffered from a major depressive disorder and delusional disorder although there had been an improvement with treatment;
·his psychiatric state was still related to the incident of 3 April 2002 “and the resultant disciplinary action”;
·Mr Caldwell may have an underlying biological or genetic disposition to these disorders.[17]
[17] Ex.R1 A16.
Dr Saboisky, Consultant Psychiatrist
Dr Saboisky assessed Mr Caldwell in June 2005 at the request of Comcare. He diagnosed Mr Caldwell as suffering residual delusional disorder which was a biological condition. He was of the opinion that Mr Caldwell’s employment was not causally linked to his psychological state but that he probably had a predisposition to the condition.[18]
[18] Ex.R1, doc.A9.
Dr Plummer, Registered Psychologist
40. Dr Plummer had 14 consultations with Mr Caldwell between July 2005 and September 2006. These consultations were for treatment. In a report of 4 September 2006 Dr Plummer expressed the following opinion:
“I believe that the work accident that occurred in April 2002 contributed to a change in Phillip’s ability to deal with stressful events. As he was taken off the work that he knew, received little recognition for the accident at work, and without the constant support from his wife (because of his mother in law’s illness and later death); the stressful events continue to grow. As it happened, Philips view of the world was at odds with others’ view, including his workmates and his family, this further added to the stress. As each event added more pressure, Philip’s ability to deal with the stress in an acceptable manner decreased and his feelings of being out of control increased. All of this led to increasingly erratic behaviour and possibly delusional thoughts. As he continues to gain more control of his life, to be able to predict when he is becoming more erratic, and to understand the triggers better he will continue to get better and be more able to return to the workforce. He will need to continue with the exercise and other health regimes." [19]
[19] Ex.R1 A17.
Dr Lawrence, Consultant Psychiatrist
41. Dr Lawrence was Mr Caldwell’s treating psychiatrist when he was hospitalized for a month in November/December 2005. Mr Caldwell continued to consult Dr Lawrence after his discharge from hospital. Dr Lawrence provided a report of 11 July 2006 after he reviewed reports from Dr Warfe, Dr Knox, Dr Stern, Dr Saboisky and Dr Morice.[20]
[20] Ex.R1, doc.A15.
42. Dr Lawrence reported:
I want to draw attention to this period immediately following the electrocution. Given that Phillip had placed a huge investment in emotional terms into his work and his conscientious approach which he has obviously displayed this was a major psychological blow to him. I would like to emphasize this point. To give it some relevance I have enclosed a statement that Phillip wrote out concerning this event which will indicate the depth to which he felt that he had let everyone down. The words “What a disgrace” are written really large … in my view it appears that this event that Phillip experienced at work was a major blow to his sense of self worth and self confidence and self respect. As I mentioned above none of the other reports as I see have focussed on this issue concerning Phillip. I think it is a major issue. The fact that he was told that he should return to work the following day dismisses any emotional impact that this event may have had on him… [o]ver the course of the next year or so there is no record of Phillip having been given any help in coming to terms with what he felt “was a disgrace” and the development of his illness and psychosis which ensured [sic] may well have been his own idiosyncratic way of dealing with what had happened to him
Discussion between Drs Knox, Stern, Morice, Lawrence and Saboisky
43. With the agreement of the Tribunal and arranged by the parties’ legal representatives, the psychiatrists referred to above discussed together their respective views as to Mr Caldwell’s condition and its probable cause. By agreement between the parties only Dr Knox gave evidence. He informed the Tribunal of the views of each of the practitioners expressed during the discussion. Having considered the earlier reports of the practitioners we do not consider that their respective views have changed as a result of their discussion. It should be noted that the procedure adopted in this case is not that commonly followed when the Tribunal hears concurrent evidence. However, in this case it enabled the hearing to be expedited and the parties to save costs. It was an appropriate procedure in the circumstances of this case.
44. Dr Knox informed us that all but Dr Saboisky were of the opinion that the various incidents in the workplace (being the accident and related events) contributed to the development of Mr Caldwell’s illness. Drs Knox, Stern and Lawrence thought the workplace incidents made a material contribution to the illness, Dr Morice was of the view that that they did not. It is important to note in this regard that the question of whether a contribution is material is a matter of interpretation of the Act rather than for expert opinion and we will treat it accordingly.
45. Dr Knox reported:
“..... four out of five of the doctors had felt that those matters, those post initial accident matters, the whole wash up of it all in the workplace in the next year or two, that they had been significant in bringing about playing a part in Mr Caldwell’s illness and his disabilities. Four out of five said yes they thought it played a part, but ultimately Dr Morice backed off and said it wasn't material." [21]
[21] Transcript 5.2.08 p-61.
DETERMINATION OF THE ISSUES
Issue 1. Has Mr Caldwell suffered a “disease”, ie. an ailment “that was contributed to in a material degree” by his employment by ActewAGL?
46. Comcare concedes that Mr Caldwell has suffered a mental illness being a psychotic disorder and we are satisfied on the basis of the evidence of the medical and other health professionals that this is a proper concession to be made. Such an illness is an “ailment” within the meaning of the Act; the question is whether Mr Caldwell’s employment “contributed in a material degree” to the ailment.
47. We are satisfied on the balance of probabilities that the accident on 2 April 2002 and the events which followed in Mr Caldwell’s workplace contributed to his illness. We have reached this conclusion on the basis of the medical evidence to which we shall refer, the facts already found and the following additional facts of which we are satisfied on the balance of probabilities.
Additional findings of fact.
48. Mr Caldwell remained in hospital for several hours after the incident. The hospital records do not appear to show the actual time of discharge, but the last treatment recorded that day was 11.15 am.[22] When he was discharged he was given a medical certificate that he was unfit for work from 3 April 2002 to 10 April 2002.[23] This certificate was issued by Dr Elliott who treated Mr Caldwell in the Emergency Department. Upon his discharge Mr Caldwell was driven to his home by Mr Winchester (a fellow employee).
[22] Ex.R1, doc.C2.
[23] Ex.R1, doc. B2.
49. After Mr Caldwell arrived home, and before 2.30 pm when Mrs Caldwell arrived, Mr Caldwell was visited by Mr Maher, the Safety Officer from ActewAGL. Mr Maher told Mr Caldwell that he (Mr Maher) had 24 hours in which to make a report to Comcare. At the time Mr Caldwell was still feeling “very groggy”,[24] and Mr Maher observed that he appeared to be “shocked”. [25] Mr Maher also advised both Mr and Mrs Caldwell that Mr Caldwell should not consult Dr Sood but should see a specialist to be arranged by ActewAGL. Mr and Mrs Caldwell were reluctant to agree to this proposal but were persuaded to do so by Mr Maher.
[24] Transcript 4.2.08 p-45.
[25] Ex.R1, doc.B3.
50. Having heard Mr Maher give evidence we are satisfied that he does not have an accurate recollection of the circumstances of Mr Caldwell attending Dr Warfe and to the extent that his evidence varied from that of Mr and Mrs Caldwell we prefer their evidence. We are satisfied on the basis of Mr Maher’s evidence that he was under instruction from his superior or superiors to have Mr Caldwell attend Dr Warfe (a Public Health Physician appointed by ActewAGL) as soon as possible and to endeavour to have Mr Caldwell return to work the day following the incident. We are satisfied that the motivation for these instructions was to minimize the effect of the incident on the employer’s safety records rather than to aid Mr Caldwell’s recovery as suggested by Mr Maher.
51. The following day Mr Maher drove Mr and Mrs Caldwell to an appointment with Dr Warfe. This appointment was arranged by ActewAGL. Without invitation by Mr Caldwell, Mr Maher was present during the consultation and informed Dr Warfe that ActewAGL would like to have Mr Caldwell return to work the following day. Despite Mrs Caldwell telling Dr Warfe that she did not believe Mr Caldwell was fit to work (with which Mr Caldwell did not disagree) Dr Warfe provided a certificate that Mr Caldwell was fit to return to work on light duties the next day being 5 April 2002. This was contrary to the certificate issued by Dr Elliott, Mr Caldwell’s treating doctor at The Canberra Hospital.
52. Following the appointment with Dr Warfe, Mr Maher was insistent that he drive Mr Caldwell to his appointments to have his hand re-dressed but Mrs Caldwell told him she would do this. The injury to Mr Caldwell’s hand was sufficiently serious to require several visits to the hospital for re-dressing.
53. Mr Caldwell gave evidence that he did not understand why Dr Warfe gave a certificate contrary to that issued by Dr Elliott and that he felt overwhelmed by the situation after seeing Dr Warfe. We accept this evidence.
54. Mr Caldwell did not return to work on 5 April 2002 as he did not feel well enough to do so. On 8 April 2002 he consulted his general practitioner, Dr Sood, who certified that he was unfit for work during the following week. Subsequently Dr Sood issued certificates that Mr Caldwell was unfit for work for a period of four weeks following the incident.
55. During the period Mr Caldwell was on sick leave recovering from the effects of the flash-over he was advised by Mr Maher that he had arranged a number of meetings for Mr Caldwell to attend. Mr Caldwell was informed that one of these meetings was with the Switching Review Committee. By reason of his ill-health Mr Caldwell was unable to attend this meeting.
56. Mr Caldwell did attend a meeting with Mr Maher and Mr Winchester on 18 April 2002 when they interviewed him as to the circumstances in which he was injured. Also at this meeting Mr Maher requested Mr Caldwell to provide a written statement for consideration by the Switching Review Committee the following day.
57. On or shortly after 20 April 2002 Mr Caldwell received a copy of a report by the Committee. This report erroneously stated that Mr Caldwell was not wearing the correct gloves at the time of the incident.
58. Mr Caldwell described what he perceived to be the effect on himself of the accident, the subsequent actions of Mr Maher and Dr Warfe and the receipt of the report of 20 April 2002 :
·Lost confidence in all my ability and needed someone around all the time. I relied heavily upon my wife in this period of time. I also relied upon my family.
·I could not discuss the accident with my family.
·I was told I had no emotion of my situation, I seemed to have lost all my normal emotion.
·I was physically and mentally very shaken up by the accident. I did not feel my employer had taken that seriously.
·I was particularly upset that Dr Warfe had not supported me. I felt, again, that he was belittling the accident to me.
·ACTEWAGL, through Michael Maher, tried to control the situation both in relation to me seeing their specialist, Dr Warfe, and also returning to work.
·ACTEWAGL, and particular [sic] Michael Maher, tried to play down the seriousness of the accident.
·My wife had to tell representatives and employees from ACTEWAGL to leave me alone while at home on a sick certificate.
We accept this evidence.
59. On 2 May 2002 Mr Caldwell provided Mr Maher with a handwritten statement and a response to the report. On 13 May 2002 the Switching Review Committee issued an amended report in which it deleted the reference to Mr Caldwell not wearing protective gloves at the time of the incident. There was also a change as to the circumstances of Mr Caldwell’s not having attended a meeting of the committee. Otherwise the report was the same as had been previously issued. On 30 May 2002 Mr Caldwell received the letter from his employer advising him of the action to be taken against him.
60. We accept Mr Caldwell’s evidence that as a result of receiving the letter and the taking of the action it foreshadowed his confidence was affected badly and that after receiving the letter he was extremely upset and felt depressed.[26]
[26] Ex.R1 doc.B2.
61. Mr Caldwell returned to work in early May 2002. He was employed as a linesman having been stood down from switching duties. In August 2003 he was promoted to the position of implementor with responsibility for allocating work between three gangs. He was removed from this position in April 2004 and was told his work had deteriorated. Mr Caldwell then returned to work as a linesman until September 2004 when he was transferred to the position of storeman. He regarded this transfer as a demotion and his confidence was again badly affected. He described the new position as “alien” to him. He could not see anything positive in the position. On 24 September 2004 Mr Caldwell left his work without notice and has not worked since.
62. In September/October 2004 Mr Caldwell was a patient in the Psychiatric Ward at The Canberra Hospital under the care of Dr Morice. He described this time as “the worst 23 days of my life.” [27] In November/December 2005 he was admitted to the psychiatric unit of Calvary Hospital. On this occasion he was treated by Dr Lawrence.
[27] Ex.R1.doc.B2.
Consideration of the evidence of the health professionals
63. All of the health professionals, except Dr Saboisky, agree that Mr Caldwell’s employment by ActewAGL contributed to his psychotic disorder. Although Dr Saboisky is a very experienced and senior practitioner, we prefer the views of the remaining practitioners, particularly as they include treating practitioners who had greater opportunity to observe Mr Caldwell than did Dr Saboisky. We have also taken into account the evidence of Mrs Caldwell that during her marriage to Mr Caldwell she had not observed any behaviour by him which indicated any abnormal mental functioning but that from the time of the incident his manner changed. Her evidence and the evidence of Mr Caldwell as to his reaction to the events of 3 April 2002 supports our view that the timing of the development of the psychotic disorder (December 2003) was more likely than not to have been contributed to by the employment factors of the previous twenty months rather than to have been entirely unrelated.
64. Next it is necessary to consider whether the contribution of Mr Caldwell’s employment to his injury was a contribution “in a material degree” in accordance with the definition of “disease” in section 4 of the Act. In their joint discussions Drs Knox, Stern and Lawrence maintained their respective views that the employment had been “significant” in bringing about Mr Caldwell’s illness. Dr Plummer also supported this view. Dr Morice was of the opinion that the contribution was not “material.” We found the detailed analysis of the increasingly significant effect of work factors by both treating practitioners ( Dr Lawrence and Dr Plummer) persuasive. They had the opportunity to assess Mr Caldwell during a number of consultations. They both refer to the cumulative effect of the initial incident and the subsequent events which is consistent with the evidence of both Mr and Mrs Caldwell as to Mr Caldwell’s reaction to those events.
65. For the foregoing reasons we are satisfied on the balance of probabilities that Mr Caldwell suffered from a “disease” within the meaning of the Act
66. On the evidence before us Mr Caldwell was first impaired by the disease on 23 December 2003 when he suffered the delusion that he had acted inappropriately. Pursuant to subsection 7(4) of the Act he is taken to have suffered the disease on that day.
Issue 2. Was the disease suffered by Mr Caldwell “as a result of reasonable disciplinary action “taken against him?
67. To determine what, if any, action is to be classed as “disciplinary action” it is necessary to consider in detail the documentary provisions establishing the relevant disciplinary process: Commission of Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 37 FCR 75; Comcare v Eames [2008] FCA 422.
68. The disciplinary provisions applicable to Mr Caldwell in April and May 2002 are contained in Part 14 of the ACTEW Corporation Limited Enterprise Agreement 1999.[28] A copy of this agreement was provided by Comcare at our request after the addresses had concluded. It was taken into evidence with the consent of Mr Caldwell. Part 14.1.1 sets out specifically when disciplinary procedure may be initiated. It provides:
Depending on the severity of the inappropriate behaviour, the disciplinary procedure may be initiated at any stage 1, 2 or 3; or may also include summary dismissal. Where demotion or dismissal may be contemplated, a full investigation of the circumstances should be undertaken, with the employee and union able to confront and counter any evidence of the inappropriate behaviour.
[28] Ex.T1.
69. The letter from ActewAGL of 30 May 2002 advised Mr Caldwell that it constituted a Stage 2 - First Written Warning. On this basis we are satisfied that the disciplinary action against Mr Caldwell commenced on 30 May 2002. As he was required to be reassessed as part of the disciplinary process the disciplinary action ceased when the first assessment took place.
70. On the basis of the evidence which led us to conclude that Mr Caldwell’s employment contributed to his illness we are satisfied that the disciplinary action (being part of his employment) was also a contributing factor. As the action taken was in accordance with the disciplinary process provided by the Agreement and taking into account the serious consequences of his actions we are satisfied that the disciplinary action was reasonable. Mr Caldwell did not argue otherwise.
71. However for the exclusionary provisions of the definition of “injury” to apply we must be satisfied that the disciplinary action contributed to Mr Caldwell’s illness “in a material degree”. Weigand v Comcare Australia (No 2) [2007] FCA 237. In this decision the Federal Court applied the “more demanding requirement of contribution than had conventionally been considered to be the case’’. The Court had applied this requirement in relation to the definition of “disease” in Comcare v Sahu-Khan [2007] FCA 15.
72. In Comcare v Sahu-Khan Finn J said:
Bearing in mind that the course of the statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger casual relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluaton”)
(iii) whether this will be so in a given case will be a matter of fact and degree.
73. Having considered all of the evidence in this case we are not satisfied on the balance of probabilities that the disciplinary action taken against Mr Caldwell contributed to his illness in a material degree. Whilst we are satisfied that the disciplinary action made a contribution we are unable to be satisfied as to the extent of that contribution.
74. The discussion between the five psychiatrists, as conveyed to us by Dr Knox, was inconclusive on this point. The line between an agreed view of the group (if there was one) and the views of Dr Knox was unclear.
75. Turning to the individual reports, in May 2005 Dr Stern expressed the opinion that the change of duties (being part of the discipline imposed) aggravated the depression and paranoia. He did not refer to the contribution (if any) which the change made to the psychotic disorder.[29] In August 2006 he reported that “his psychiatric state is still related to the electrocution at work on 3 April 2002 and the resultant disciplinary action.” [30] Dr Stern agreed that there may be an underlying biological or genetic predisposition. He did not express an opinion as to the extent of the contribution of the disciplinary action to Mr Caldwell’s psychiatric state.
[29] Ex.R1, doc.A7.
[30] Ex.R1, doc.A16.
76. Dr Lawrence placed particular emphasis on the events immediately following the electrical incident in assessing the effect on Mr Caldwell. We have referred to his opinion earlier in these Reasons. Dr Lawrence did not indicate his opinion as to the contribution of the disciplinary process but clearly regarded it of lesser importance than the factors of which he made special mention. We take into account that Dr Lawrence has been, and continues to be, Mr Caldwell’s treating psychiatrist.
77. Dr Morice, who treated Mr Caldwell in 2004 and 2005, does not offer an opinion on the contribution of the disciplinary process. The reports of Drs Tran, Corcos, Warfe, and Sood and that of Mr Khalif do not assist in this regard.
78. The opinion of Dr Knox supports Comcare’s argument that the disciplinary process made a material contribution to Mr Caldwell’s illness. He describes the disciplinary action and subsequent restriction of duties and demotion as being likely to have had a “sizeable impact” on his mental health.[31] There is further support for this view in the report of Dr Plummer who treated Mr Caldwell on fourteen occasions commencing in July 2005. [32] Dr Plummer identified major issues for Mr Caldwell to include the loss of being a linesman and the humiliation of demotion.
[31] Ex.R1, doc.18.
[32] Ex.R1, doc.A17.
79. Although there is some evidence of the disciplinary process having made a material contribution to Mr Caldwell’s illness, having considered all of the evidence we are not satisfied of this on the balance of probabilities. We are not persuaded that the opinions of Dr Knox and Dr Plummer should be preferred to those of the other practitioners to whom we have referred. Even if we had found that the disciplinary action commenced with the first interview of Mr Caldwell on the day of the incident we would not have reached a different conclusion.
Issue 3. Was the disease suffered by Mr Caldwell suffered by him as a result of his failure to obtain a benefit in connection with his employment?
80. Comcare has argued that Mr Caldwell’s failure to regain his position as a linesman was a failure to obtain a benefit in relation to his employment and that this contributed to his illness in a material degree. We do not accept Comcare's argument. Mr Caldwell was demoted as part of the disciplinary process. He was unable to regain his position as a linesman as he could not meet the necessary requirements of his employer. In these circumstances, adopting a commonsense approach to the wording of the definition of “injury”, Mr Caldwell has suffered a detriment rather than having failed to obtain a benefit.
81. In Kelly and Comcare (2006) 93 ALD 658 we said:
[I]t is our view that the correct approach when deciding whether or not a particular event constitutes a benefit is to do so with reference to the status quo. If an employee suffers an illness as a result of failing to obtain some advantage over and above the status quo then that is properly characterised a as a failure to obtain a benefit. If, on the other hand, the employee suffers an illness as a result of a change which was disadvantageous when compared with the status quo, then that is in fact a detriment and the opposite of a benefit.
82. In Mr Caldwell’s case the status quo was that he was employed as a linesman. His inability to return to his role was a detriment to him.
Issue 4. Was the injury suffered by Mr Caldwell caused by his serious and wilful misconduct?
83. Although we are satisfied that Mr Caldwell has suffered an injury as defined in the Act, compensation is not payable in respect of that injury if it was caused by his serious and wilful misconduct : subsection 14(3).
84. Counsel for the parties have referred us to a number of decisions as to the meaning of “serious and wilful misconduct”. Having considered all of these decisions we are of the view that the following principles are applicable in this matter:
·there is nothing in the relevant provisions of the Act which alters the usual situation in administrative proceedings that there is no legal or evidentiary onus of proof on either party: Re Elvin and Comcare (1998) 51 ALD 706:
·“serious” in the subsection describes the misconduct and not the actual consequences of it, however the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury: Comcare v Calipari [2001] FCA 1534;
·it is necessary to consider the facts in each case in order to determine the nature of the conduct: Johnson v Marshall Sons & Co Ltd [1906] AC 409; Re Hardman and Inco Ships Pty Ltd (2006) 92 ALD 663;
·“wilful” requires that the misconduct must be deliberate and not merely a thoughtless act done on the spur of the moment: Johnson v Marshall Sons & Co Ltd [1906] AC 409; Re Hardman and Inco Ships Pty Ltd (2006) 92 ALD 663;
·the misconduct must give rise to an immediate risk of injury and must be accompanied by an appreciation of the risk which is involved in it: Adams and Australian Postal Corporation [1993] AATA 355.
85. In relation to the second principle set out in the preceding paragraph, Counsel for Mr Caldwell referred us to the Federal Court decision of Inco Ships Pty Ltd v Hardman [2007] FCA 1138 in which Madgwick J stated that misconduct is serious “if it significantly increases the likelihood of serious injury.” [33] For reasons to which we shall refer later, the difference in these two approaches is immaterial in the case before us.
[33] At para. 81.
Additional findings of fact
86. We have made some findings as to the circumstances in which Mr Caldwell came to attempt to operate the capstans when he was not authorized to do so. We make the following further findings based on the evidence of Mr Caldwell.
87. Prior to the incident Mr Caldwell had received no specific training in relation to the operation of capstan links. He recalled that some years previously he had been told that they were “deadly” and that they had to be dealt with carefully. ActewAGL did provide him with training in relation to the operation of the links six months after the incident.
88. Mr Maher gave evidence that Mr Caldwell would have received some training in relation to capstan links in his initial training to be a switcher but he was unable to provide details as to the extent of such training. He said that such training was not “formal” training. We accept Mr Caldwell’s evidence as to the extent of the training he received in relation to capstan links.
89. The authority to operate ActewAGL’s electrical distribution network held by Mr Caldwell at the time of the incident was dated 9 October 2001 and included the statement:
“Indoor LV capstan links do not form part of this authorisation, and their operation is not permitted under this Authority.” [34]
[34] Ex.R3.
Mr Caldwell was aware of this limitation on his authority but did not advert to it at the time he attempted to operate the links.
90. Two of the three tumblers which formed the links were loose when Mr Caldwell opened the station and he considered that as he only had to loosen one tumbler he would be able to do so safely. He was unaware of the risk of a flashover of the type which occurred. This was the first time he had encountered the links in carrying out his switching duties.
91. When he gave evidence the following exchange took place between Mr Caldwell and his Counsel:
Counsel: And did you -- can you recall having any thoughts of particular danger or risk in what you were doing?
Mr Caldwell: No. I thought if I was cautious and took my time I thought I would be in no danger. That's what I thought in the back of my head but I was wrong.
Counsel: You were -- although you weren't aware of what might occur you were aware of the fact that you weren’t authorised to operate capstan links?
Mr Caldwell: Well, I wasn’t really thinking about that at that stage when I was confronted by them in the sub.
Counsel: What were you thinking about?
Mr Caldwell: I was thinking more about the job and whether it could go ahead or whether I was being too – too outrageous or not.
Counsel: And did you consider you could do it safely then in those circumstances?
Mr Caldwell: Well, that was my opinion as I stood in front of it in the dark that morning. I thought I could do it. [35]
[35] Transcript 4.2.08, p-43.
We accept this evidence of Mr Caldwell.
92. Mr Winchester gave evidence. He was employed as a Works Implementer by ActewAGL in April 2002 and as such distributed work to a number of work teams including that of which Mr Caldwell was a member. On the basis of Mr Winchester’s evidence we are satisfied that:
·Mr Hahn and Mr Hennock, who were consulted by Mr Caldwell prior to undertaking the job, were highly qualified switching operators and it was sensible and appropriate that Mr Caldwell would have consulted them;
·at the time it was the preference of Mr Winchester not to have jobs cancelled if they could be done safely.
93. Mr Maher, the Network Training and Systems Coordinator of ActewAGL gave evidence. In 2002 he was the Field Services Risk Management Officer for the organization. This role encompassed the tasks of Electrical Safety Officer & Network Switch Training & Assessment. [36]
[36] Ex.R1, doc.B3.
94. On the basis of Mr Maher’s evidence we are satisfied that :
·Mr Maher regards capstan links as “potentially dangerous” equipment;
·capstan links are old equipment last installed in the Territory in the early 1980’s;
·of approximately four thousand five hundred substations in the Territory network at least one hundred have capstan links installed in them;
·in April 2002 ActewAGL did not maintain records of the location of capstan links although such records have been compiled since;
·in April 2002 the only means employed by ActewAGL to determine whether a particular switching job would involve capstan links was for the switcher allocated to the job to go on site and look;
·in April 2002 it was the policy of ActewAGL that everyone in the field was responsible for his or her own safety at all times;
·at the time Mr Caldwell was allocated the Mawson job, and at the time he attended to carry out the work, he was unqualified and untrained to do it and he did not have the proper equipment for it;
·none of his superiors was aware that Mr Caldwell was unqualified, untrained and not equipped for the job he was allocated.
Reasoning
95. We are satisfied that Mr Caldwell’s action in working on the capstan links contrary to the authorization issued to him was misconduct. There can be no doubt that, with the knowledge of the events which followed, Mr Caldwell’s actions in attempting to loosen one of the tumblers using multi-grips was conduct which was attended by the risk of injury. The injury at risk was not only “non-trivial” but also properly described as “serious”. On the face of it the conduct meets the requirement of “serious misconduct” within the meaning of subsection 14(3).
96. However, in considering all the facts of this case we are satisfied that the conduct in question should not be characterized as ‘serious”. Mr Caldwell’s actions must be viewed in the light of the attitude of his employer towards the possibility of his working on capstan links. Apart from some form of warning as to the danger involved given on one occasion several years previously, the employer did not regard the risk as sufficiently serious to warrant further training of Mr Caldwell in this regard until six months after the incident. Further it did not regard the potential for injury as being sufficiently serious to ascertain the location of the equipment to ensure that an unqualified, untrained and ill-equipped employee (in this case, Mr Caldwell) was not allocated such a job. Instead it relied upon Mr Caldwell and/or the Leading Hand to carry out an inspection of the proposed work and to lodge the necessary paperwork, a requirement it did not enforce. Balancing the risk of serious injury against the attitude of the employer towards the conduct under consideration we conclude that whilst Mr Caldwell had engaged in misconduct, it was not “serious” misconduct.
97. In the event that we are wrong in our conclusion that the misconduct was not serious we are satisfied that it was not wilful. The evidence of Mr Caldwell leads us to conclude that he did not deliberately engage in misconduct but rather he was thoughtless and acted on the spur of the moment in an effort to get the job done so that the linesmen would be able to do their job when they arrived on site. Further we are satisfied that he did not appreciate the risk that was involved in his conduct.
98. The attitude of the employer to the risk involved, to which we have already referred, lends support to our conclusion. The fact that the employer had offered nothing more than one warning years previously makes us able to accept more readily Mr Caldwell’s evidence that he thought that if he was careful there would be no danger in the situation with which he was confronted. We also take into account that Mr Caldwell consulted two very experienced switchers who did not warn him of the risk that capstans may be present on the site at which he was to work. We are satisfied that this would have added to Mr Caldwell’s belief that he could proceed carefully without risk to himself.
DECISION
99. The reviewable decision of Comcare made 30 November 2005 is set aside.
100. In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 Comcare is liable to compensate Mr Caldwell in respect of an injury being a psychiatric condition which first resulted in the impairment of Mr Caldwell on 23 December 2003 and which was contributed to in a material degree by his employment by ActewAGL.
101. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Caldwell.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: .……...........................[signed]..........................................
Peter Horobin
AssociateDate of Hearing 4- 6, 28 February 2008
4 April 2008
Date of Decision 24 April 2008
Counsel for the Applicant Steven Whybrow
Solicitor for the Applicant Gerard Rees
Slater & Gordon Inc. Garry Robb and Assoc.
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Daniel GibsonDLA Phillips Fox
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