Clinton Lee Foster and TNT Australia Pty Ltd
[2014] AATA 852
•14 November 2014
[2014] AATA 852
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3541
Re
Clinton Lee Foster
APPLICANT
And
TNT Australia Pty Ltd
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 14 November 2014 Place Melbourne (a) The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable for compensation to Mr Foster pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood and Drug Dependency.
(b) The respondent shall pay Mr Foster’s costs and disbursements of the application pursuant to s 67 of the SRC Act.
.............................[Sgd].....................................
G. D. Friedman, Senior Member
CATCHWORDS
COMPENSATION – truck driver – chronic adjustment disorder with mixed anxious and depressed mood, drug dependency – previous left elbow injury – whether psychological condition arose out of or in the course of employment – whether employment contributed to psychological condition to significant degree
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A(1), 5B, 14(1), 67
CASES
Canute v Comcare [2006] HCA 47
Comcare v Canute [2005] FCAFC 262
Re Commonwealth of Australia v Keith Colville Smith [1989] FCA 189
REASONS FOR DECISION
G. D. Friedman, Senior Member
14 November 2014
Clinton Foster commenced employment with the respondent in April 2010 as a truck driver. On 5 January 2011 he sustained an injury to his left elbow and on 24 January 2011 the respondent accepted liability for left elbow lateral epicondylitis. Mr Foster developed psychological symptoms and on 1 October 2012 he sought compensation for his diagnosed psychological condition. On 21 May 2013 the respondent made a reviewable decision refusing his claim for compensation for his psychological condition on the basis that it was not work-related to a significant degree. Mr Foster seeks review of the decision.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety Rehabilitation and Compensation act 1988 (the SRC Act) provides:
14 Compensation for injuries
(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.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee;
…
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
ISSUES
There was no dispute between the parties that Mr Foster suffers from a psychological condition outside the boundaries of normal mental functioning. The issues before the Tribunal are:
·whether the condition was an injury within the meaning of s 5A of the SRC Act (i.e. whether the psychological condition arose out of, or in the course of the employment or as an aggravation of the left elbow injury); if not
·whether the condition was a disease within the meaning of s 5B of the SRC Act (i.e. whether the psychological condition was contributed to, to a significant degree, by the employment).
DID THE PSYCHOLOGICAL CONDITION ARISE OUT OF, OR IN THE COURSE OF THE EMPLOYMENT OR AS AN AGGRAVATION OF THE LEFT ELBOW INJURY?
Mr Foster left school after Year 10 and worked in a timber yard for twelve months. He completed year 12 at Kangan Batman College of TAFE and worked in a variety of jobs as a furniture maker, fork lift driver and upholsterer, and later in the body piercing and security industries. He commenced working as a driver with a water supply company and in 2009 he worked for a division of the respondent delivering parcels. He joined the respondent in April 2010 as a truck driver, making deliveries and collections within the Melbourne metropolitan area.
Mr Foster explained that he had suffered from asthma when he was young but enjoyed playing a variety of sports. He ruptured his spleen and fractured five ribs in a fall when aged 15 years. At the age of 19 years he engaged in illicit recreational drug use and this continued for five years. In 2000 he was involved in a motor vehicle accident and injured his neck and head. He also suffered from headaches with migraine-like symptoms, for which he was prescribed anti-depressant medication. In 2004 he fractured his left wrist, and suffered wrist pain for some time. He was referred to a psychiatrist in relation to the headaches, which he believed may have been related to the motor vehicle accident. Mr Foster stated that after numerous tests he was prescribed medication. He reported other injuries including his right thumb and right index finger in 2006, and blurred vision after a dumbbell fell on his forehead in 2007.
In addition to the various medical issues, Mr Foster described ongoing family and relationship difficulties. In 2001 after his first child was born his then partner decided she did not want anything to do with him. She later took the child interstate, leaving Mr Foster with little contact with the child, resulting in protracted family law proceedings. Around this time his parents separated, causing him considerable anxiety. At this time he was doing his best to act responsibly towards his new partner, who gave birth to his second child in August 2003. He said that in 2004 he suffered hallucinations and consulted a psychiatrist. In 2005 he resolved to cease using amphetamines and was assisted by treatment at a drug rehabilitation centre in about 2006. In August 2006 his partner gave birth to his third child. His partner developed fibromyalgia and chronic fatigue syndrome and was unable to work.
In respect of his injury Mr Foster explained that on 5 January 2011 he was lifting cartons weighing 25 to 30 kilograms each when he developed severe pain in his left elbow, and he reported the injury at the end of his shift. He said that the pain became more intense at work, and on 11 January 2011 he ceased driving and was placed on restricted duties performing administrative tasks but continuing to work full time hours. His general practitioner diagnosed tennis elbow and prescribed medication as well as strapping the elbow. He said that he lodged a claim for compensation and on 24 January 2011 the respondent accepted liability for compensation for left elbow lateral epicondylitis. He consulted a hand therapist and orthopaedic surgeon, and in May 2011 his hours were reduced to part-time. Mr Foster stated that in about May or June 2011 he became increasingly unhappy with the limitations he was experiencing as a result of the injury. He could not drive a motor vehicle and was becoming increasingly emotional. On 23 August 2011 he underwent surgery to fix the nerve in the left elbow. In September 2011 a dog attacked his daughter and he suffered an increase in his left elbow pain during the incident. He was referred to a pain clinic.
Mr Foster told the Tribunal that in June 2011 he and his partner were married. However, because of the pain and the failure of the surgery he became more depressed and in late 2011 he re-commenced using amphetamines for the first time since 2005 and also used methamphetamines, which he said made him feel better and not so overwhelmed by the left elbow pain. In February 2012 his wife told him to leave the family home after discovering that he had been using her prescribed dexamphetamine medication, and he ceased using drugs for a short period. In March 2012 he presented to the Interventional Pain Clinic at the Royal Melbourne Hospital for pain in the left arm and depression. He described to the Clinic strained family circumstances and other psychosocial issues but denied substance abuse. He was prescribed anti-depressant medication.
In May 2012 Mr Foster underwent further surgery to decompress the ulnar nerve in his left arm. He said that in September 2012 he attended Dr R McIntosh, consultant psychiatrist, on referral from his general practitioner, and he disclosed amphetamine use. After attending hospital in September 2012 with abdominal pain he took an overdose of prescribed medication and was referred to the hospital’s psychiatric unit. By this time he had no fixed address. In December 2012 he was informed that his claim for medical expenses in relation to his depression had been refused, and in April 2013 the insurer affirmed the refusal of his claim on the basis that he was taking illicit drugs continuously before his elbow injury. Mr Foster stated that this was untrue, as he had ceased taking amphetamines in 2005 and did not re-commence using illicit drugs until after the surgery for his elbow injury in 2011.
Mr Foster emphasised that he did not experience any ongoing psychological problems until his injury in 2011. He said that in July or August 2013 he resumed living with his wife and children and remains there at the present time. He said that he is still unable to drive but since July 2014 has increased his working hours to seven per day for five days each week. He performs clerical duties. Mr Foster stated that he has ceased using illicit drugs and takes only prescribed medication.
Under cross-examination Mr Foster agreed that he had used illicit drugs over a lengthy period and that he resumed his substance abuse in September 2012 because of depression that arose when he was unable to work and was in constant pain. He said that the drugs helped to give him the energy he formerly enjoyed. He also agreed that his feeling of depression and low mood was contributed to by family issues involving his parents, former partner and his wife, plus his use of illicit drugs. He denied that before October 2012, when he lodged his claim for compensation, he had not mentioned to various medical practitioners, including his general practitioner, that his feelings of depression were due to his left elbow pain.
Dr McIntosh was Mr Foster’s treating psychiatrist from 4 September 2012 to early 2014. In a report dated 31 October 2012 he stated that he took a history of Mr Foster being well until the elbow injury in January 2011, but that Mr Foster struggled with pain throughout 2011 and his mood started to plummet after the injury. Dr McIntosh noted that levels of poorly-controlled pain seemed to have been associated with Mr Foster resorting to the use of amphetamines/methamphetamines, which commenced in late 2011/early 2012 and a period of abstinence (around 3 months) before a relapse. Dr McIntosh concluded that if Mr Foster had not suffered his elbow injury, he would not have developed a methamphetamine problem, and Dr McIntosh believed that the two events were essentially linked. Dr McIntosh stated that he urged Mr Foster to seek access to drug rehabilitation services and noted that methamphetamines were reducing the effectiveness of Mr Foster’s anti-depressant medication.
In a supplementary report dated 5 August 2014 Dr McIntosh reiterated that in his clinical impression Mr Foster was quite well and reasonably functional in the four to five years before his work-related injury, although he had a significant vulnerability towards psychological and psychiatric issues plus a substance abuse problem when he was aged 19 to 24 years. There were also psychosocial/family vulnerabilities, many of which have continued to impact on Mr Foster’s presentation. Dr McIntosh diagnosed an adjustment disorder with depressed and irritable mood, and stated that the arm injury, with subsequent chronic neuropathic-type pain, was significant in causing Mr Foster’s psychiatric symptoms to develop.
Dr McIntosh told the Tribunal that because Mr Foster was in reasonably good health before the elbow injury it was difficult to make a retrospective psychiatric diagnosis. Under cross-examination he agreed that Mr Foster’s symptoms including sleep difficulty, paranoia, anxiety/depression and irritability were also symptoms of the use of methamphetamines.
Dr M Epstein, consultant psychiatrist, stated in a report dated 6 November 2013 that he took a history of Mr Foster suffering from constant pain in the left elbow and arm, and a feeling of depression, hopelessness and helplessness. He said that Mr Foster had ceased using methamphetamines. Dr Epstein concluded that Mr Foster appeared to have developed a chronic adjustment disorder with mixed anxious and depressed mood as a consequence of chronic left arm pain that occurred during an incident at work on 5 January 2011. He had also developed a chronic regional pain syndrome. Dr Epstein acknowledged Mr Foster’s past drug use, family dysfunction and relationship difficulties, but stated that prior to the claim Mr Foster had had no psychiatric or psychological treatment for five years, appeared to be functioning well at work, and at that stage there was no evidence of any specific psychiatric or psychological condition.
Dr Epstein expressed the view that Mr Foster has suffered an identifiable medical condition as a result of his accepted left elbow injury, and there have been no other factors that could have contributed to this. He said that the psychological injury was not causally connected to Mr Foster’s substance use, which had stopped years before the injury and had resumed in the context of the injury. Under cross-examination Dr Epstein agreed that some of the symptoms experienced by Mr Foster were also symptoms of the use of methamphetamines.
Dr J Nettleton, general practitioner, stated in a report dated 3 November 2014 that Mr Foster has been attending his medical practice since 2002. He stated that he arranged for various referrals for Mr Foster following the injury at work in January 2011, and that after several months Mr Foster had become restricted by the injury and increasingly frustrated and depressed by the injury due to chronic pain, the restricted use of his left arm, and the lack of recovery. Dr Nettleton stated that he reviewed Mr Foster in January 2012 and the left arm was causing significant distress. He prescribed Cipramil anti-depressant medication for mood disturbance. Use of methamphetamines followed, causing a paranoid reaction and attendance at a hospital. He said that the second surgical procedure involving the ulnar nerve occurred in May 2012 and Mr Foster complained of continuing pain and frustration with the lack of recovery. He said that he was so concerned about Mr Foster’s psychological state that he referred Mr Foster to Dr McIntosh in mid-2012. He referred the Tribunal to his clinical notes dated 4 June 2012 when he recorded anxiety and chest pain. He also noted that he had prescribed Cymbalta anti-depressant medication on 15 June 2012, and on 24 July 2012 he recorded in the clinical notes an increase in depression. Dr Nettleton noted that Mr Foster had taken an overdose of prescribed medication in September 2012 and spent four days in the psychiatric unit of a hospital.
Dr Nettleton explained that Mr Foster had again felt suicidal in February 2014 after the death of a friend. He concluded that the left elbow injury caused or aggravated anxiety and depression and led to further illicit drug use after abstinence for about eight years. Other stressors at work exacerbated the situation. Under cross-examination he agreed that he had not been asked to provide a written report but had volunteered to do so. He denied that he was acting inappropriately by advocating for Mr Foster, and maintained that he was merely acting in his patient’s best interests. He disagreed that his clinical notes were incomplete or that the notes failed to record any suggestion of a connection between left elbow pain and psychiatric or psychological symptoms before October 2012.
Professor G Burrows, consultant psychiatrist, stated in a report dated 4 November 2012 that Mr Foster was suffering from depression, anxiety and drug dependency. He said that there was an indirect relationship between the condition and employment with the respondent, and the condition was a problem because of drug-taking behaviour. He referred to a pre-existing psychiatric history and stated that there were non-work-related factors including the failure of Mr Foster’s marriage at the relevant time.
In a supplementary report dated 27 March 2013 Professor Burrows stated that he agreed with Dr McIntosh regarding Mr Foster’s past and current illicit drug use, and reiterated that Mr Foster’s substance abuse was a major factor in his psychiatric condition. In a further report dated 3 April 2014 Professor Burrows noted receipt of additional documentation and said that his opinion remained unchanged. He told the Tribunal that the elbow injury had contributed to the psychiatric condition but that Mr Foster’s underlying personality, longstanding emotional issues and history of drug-taking were the most significant factors.
Dr M Wyatt, occupational physician, stated in a report dated 2 November 2011 that she conducted an independent assessment and took a history that Mr Foster’s left elbow was generally sore following the injury on 5 January 2011. She said that she was not aware of any non-work-related factors such as social issues, previous medical history and home activities.
CONSIDERATION
In Comcare v Canute [2005] FCAFC 262 Gyles J held that the definitions of injury and disease in the SRC Act are broad enough to allow the conclusion that a psychological condition resulting from a physical injury may be considered to be either a mental injury or an ailment and therefore an injury for the purposes of the SRC Act. Further, where the physical injury is sustained either arising out of or in the course of employment, any psychological condition caused by that physical injury may also be regarded as having arisen out of the employment or was contributed to by the employment to the required degree to be compensable. He stated at [83]:
There is little doubt that the definitions of ‘injury’ and ‘disease’ are wide enough to permit the conclusion that the psychological condition in question here might be regarded either as a mental injury or as an ailment and so an ‘injury’ as defined, which resulted in a permanent impairment quite separate from that resulting from the condition of the back. As the injury to the back was sustained in the course of the employment of the employee, it would be open to conclude that the psychological condition caused by it arose out of the employee’s employment or was contributed to in a material degree by the employee’s employment…
In Canute v Comcare [2006] HCA 47 the full bench of the High Court of Australia approved the approach taken by Gyles J (see for example [36]).
The relationship between disabling psychological symptoms and a precipitating physical injury was referred to in Re Commonwealth of Australia v Keith Colville Smith [1989] FCA 189. Von Doussa J stated at [16]:
Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly…The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his pre-dispositions and susceptibilities, whatever they may be…
The Tribunal accepts the evidence from Mr Foster that although he had a history of illicit drug use he had ceased substance abuse about five years before suffering the left elbow injury in 2011. Despite his relationship issues and family difficulties he appeared to be functioning reasonably well in 2011 and was working full-time as a truck driver. He married in June 2011. Subsequently he became increasingly frustrated by the ongoing pain in his left elbow/arm and he complained to Dr Nettleton about the pain and his worsening psychological state, resulting in a referral to Dr McIntosh and attendance at hospital psychiatric units.
The Tribunal takes into account the evidence from Professor Burrows, who attributed the psychiatric condition to a history of drug abuse and family dysfunction. However the Tribunal notes that in his first report Professor Burrows referred to an indirect relationship between the psychiatric condition and employment, and in his oral evidence he accepted that there was a contribution by Mr Foster’s employment. Professor Burrows gave little weight to Mr Foster’s overall functioning in the five years before the physical injury, preferring to describe Mr Foster as a person whose pre-existing drug and personality issues must have caused the psychiatric condition. However he did not provide the Tribunal with persuasive or sufficient evidence that the events occurring after the physical injury in 2011 leading to the psychological condition were due to any pre-existing factors other than the physical injury.
The Tribunal prefers the evidence from Dr Nettleton, Dr McIntosh and Dr Epstein. Dr Nettleton, despite his advocacy on behalf of Mr Foster, has been the treating general practitioner for about 12 years and has a good knowledge of Mr Foster’s history and symptoms. His clinical notes are consistent with his evidence that Mr Foster complained increasingly of left elbow/arm pain after January 2011 and that depressive symptoms followed, resulting in hospital admissions for pain and depression and the prescription of anti-depressant medication.
Similarly, the Tribunal accepts the evidence from Dr McIntosh that Mr Foster turned to illicit drug use in late 2011 because it offered temporary relief from the left elbow/arm pain, which was not alleviated by two surgical procedures and led to the development of mood disturbance and increasing depressive symptoms. This view is also consistent with the evidence from Dr Epstein who provided a comprehensive report and was firmly of the belief that despite a history of family dysfunction, difficulties with relationships and drug use, Mr Foster had not had any psychiatric or psychological treatment for five years before the physical injury and appeared to be functioning well both at work and at home, and there was no evidence of any psychological condition at that time. The Tribunal accepts Dr Epstein’s conclusion that there were no factors other than the accepted elbow condition that could have contributed to the identified psychological condition. The Tribunal notes that Dr Wyatt did not refer to any psychological or non-work factors, but as an occupational physician her report focused on employment aspects of Mr Foster’s condition.
In considering the evidence as a whole, the Tribunal is reasonably satisfied that, although Mr Foster had susceptibilities and vulnerabilities, the psychological condition suffered by him following his left elbow/arm condition that had been accepted by the respondent as work-related is a mental injury arising out of, or in the course of, his employment and constitutes an injury (other than a disease) for the purposes of s 5A(1)(b) of the SRC Act. Consequently Mr Foster is entitled to compensation under s 14 of the SRC Act and there is no need to consider whether the psychological condition was contributed to, to a significant degree, by the employment.
DECISION
(a) The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable for compensation to Mr Foster pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood and Drug Dependency.
(b)The respondent shall pay Mr Foster’s costs and disbursements of the application pursuant to s 67 of the SRC Act.
I certify that the preceding thirty (29) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member .............................[Sgd].....................................
Associate
Dated 14 November 2014
Dates of hearing 6 and 7 November 2014 Counsel for the Applicant Mr M Carey Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Mr P Woulfe Solicitors for the Respondent Clarke Legal
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