Fitzpatrick and Comcare
[2002] AATA 1261
•6 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1261
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1451
) No N2001/1835
GENERAL ADMINISTRATIVE DIVISION )
Re MARK ROY FITZPATRICK
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member
Date6 December 2002
PlaceSydney
Decision The tribunal affirms the decisions under review in these applications. The applicant is not entitled to costs associated with these applications.
[SGD]Senior Member
CATCHWORDS
WORKERS' COMPENSATION – adjustment disorder with anxiety and depression – major depression – personality disorder – proper diagnosis of employee's condition – whether condition an injury or disease attracting compensation – whether effects of compensable injury had ceased – whether employee qualified for permanent impairment payment
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("ailment", "disease", "injury"), 14(1), 19(2), (4)(c), 24, 27
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Denison-Smith and Comcare, Re (2000) 64 ALD 180
REASONS FOR DECISION
6 December 2002 Mr M J Sassella, Senior Member Dr P D Lynch, Member
THE APPLICATIONS
Application N2001/1452 is an application to the Administrative Appeals tribunal ("the tribunal") by Mark Roy Fitzpatrick ("the applicant"), born 20 November 1967 (ex TD1/T21), for review of a decision of a delegate within Comcare ("the respondent") dated 11 September 2001 (ex TD1/T175). In that decision the delegate affirmed a primary decision dated 25 May 2001 (ex TD1/T166) that the effects of any contribution from his Commonwealth employment to any stress condition suffered by Mr Fitzpatrick had ceased. On and from 27 February 2001 Comcare was said to be no longer liable. Additionally, the decision was that Mr Fitzpatrick qualified for no incapacity payments from 3 February 2001, the day after he was said to have resigned from the Child Support Agency ("the CSA") and voluntarily removed himself from employment.
Application N2001/1835 is an application to the tribunal by the applicant for review of a decision of a delegate within the respondent agency dated 16 November 2001 (ex TD2/T17). In that decision the delegate affirmed a primary decision dated 9 October 2001 (ex TD2/T9) rejecting the applicant's claim for compensation for permanent impairment in the form of depression, mental illness and nervous shock.
THE HEARINGThe tribunal convened a hearing in Sydney in these matters on 3 and 4 October 2002. Mr Fitzpatrick represented himself. The respondent was represented by counsel. The tribunal heard oral evidence from Mr Fitzpatrick, Dr M Gliksman, an occupational physician, Dr E Parmegiani, a psychiatrist and Dr Y Skinner, another psychiatrist. The tribunal received into evidence the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T177) provided by the respondent in application N2001/1452.
Exhibit TD2 – Section 37 Statement and associated documents (exhibits T1 – T17) provided by the respondent in application N2001/1835.
Exhibit A1 – Statement by applicant, 2 October 2002.
Exhibit R1 – Report by Dr Skinner, 20 August 2002.
Exhibit R2 – Request for leave without pay, 4 April 1995.
Exhibit R3 – Report by Dr A White, psychiatrist, 29 January 1997.
LEGAL PRINCIPLES
If Mr Fitzpatrick is to succeed in either application to the tribunal a first step is for the tribunal to be satisfied on the balance of probabilities that Mr Fitzpatrick has suffered an injury under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). In his evidence Mr Fitzpatrick said he had a psychiatric condition resulting from his work. He identified it as depression, anxiety, mixed personality disorder involving obsessive compulsive disorder, narcissistic and paranoid traits, and adjustment disorder. As will be seen later, experts do not regard some of these as diseases. However, Mr Fitzpatrick was suggesting that work contributed to these disease-like conditions suffered by him.
In the terms of s 4(1) of the Act, Mr Fitzpatrick was alleging that he had ailments that were contributed to in a material way by his employment with the Australian Protective Service ("the APS"). In accordance with s 4(1) of the Act, the definition of a "disease" was therefore satisfied, if Mr Fitzpatrick was correct. The definition of an "injury" includes a reference to a "disease [as defined in s 4(1)] suffered by an employee". Mr Fitzpatrick would have an "injury" under the Act that would, in principle, attract compensation if he were correct.
There is a practical onus of proof on Comcare in these proceedings because it decided that liability, formerly in place, had ceased. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:
"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:
"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."
"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."
EVIDENCE
mr fitzpatrick
In a sworn statement Mr Fitzpatrick told the tribunal that the Comcare delegate had been incorrect in deciding that Comcare had no ongoing liability. The delegate had gone to no lengths to ascertain the current medical situation. She had relied on Dr Skinner's point of view and Dr Skinner was wrong in her assessment.
In cross-examination the chronology of events became clearer. From that evidence and the T documents the following has been assembled. Mr Fitzpatrick started his APS career in 1990. He had no problems until 13 December 1991 when he was apprised of a complaint as to his driving of an APS vehicle. This led to counselling on 20 December 1991 (ex TD1/T3) and a formal counselling on 17 January 1992 for failure to comply with a lawful direction to provide reports on the events (ex TD1/T6). Mr Fitzpatrick identified Sgt Menzies of the APS as the superior officer responsible for this process. The applicant has nursed an intense grievance against Sgt Menzies from that day until now.
The applicant transferred to the National Crime Authority on 13 January 1992, as an APS outposted officer (ex TD1/T4). He was part of the counter-terrorist first response capacity at Kingsford Smith Airport.
On 28 January 1992 he became a member of the APS "escort response group" (ex TD1/T30). He was to collect Immigration detainees and escort them to Villawood or to prison or to a psychiatric hospital. He had a problem there, apparently on 2 February 1992, when he was said to have left a Vietnamese detainee unattended in a cell when he went away to make a telephone call. The timing of this incident may be confused. In cross-examination (see paragraph 16 below) he saw this event as occurring after October 1994 when he was working for Immigration. However, the event is referred to in the applicant's statement in support of his compensation claim (ex TD1/T30) which was dated 20 September 1994.
On 2 March 1992 the applicant's APS supervisor had recommended that he not be granted a salary increment (ex TD1/T8). This negative assessment was rejected at a higher level on 9 March 1992 (ex TD1/T10).
On 4 March 1992 the results of a grievance lodged by the applicant against his APS supervisors were made available (ex TD1/T9). The findings provided a level of vindication for the applicant.
On 17 December 1992 he had another problem when it was alleged that he refused to permit a Vietnamese detainee confined in a bus to use a toilet (ex TD1/T30). The Vietnamese relieved himself in the back of the bus.
He worked on in this unit until 25 July 1994 when he was transferred by mutual agreement to the Immigration Detention Centre at Villawood (ex TD1/T27). He was still an APS officer. This transfer followed, and the applicant said was caused by, an incident in June 1994 where Immigration had asked the APS to permit Mr Fitzpatrick to escort a detainee to Lebanon. The APS had vetoed this suggestion on the basis that it was for the APS to make such selections (ex TD1/T30). The transfer also followed the adoption of a new policy regarding rosters which meant that Mr Fitzpatrick would no longer be rostered only with officers with whom he liked to work (ex TD1/T30).
Mr Fitzpatrick said in cross-examination that he met Sgt Brian Pendlebury at Villawood. He had been involved in the complaints about the applicant's driving in 1991 (see paragraph 8 above). Sgt Pendlebury had provided a report to Sgt Menzies. The applicant was therefore absent on sick leave from Villawood from July to October 1994. On 17 August 1994 he lodged a compensation claim, his first (ex TD1/T21, T23). This claim was accepted on 12 October 1994 (ex TD1/T34). The compensable condition was "exacerbation of pre-existing paranoid personality disorder", a diagnosis suggested by psychologist Graham Hiscox in a report dated 7 October 1994 (ex TD1/T32).
On 17 October 1994 the applicant commenced another period of work at the Department of Immigration. He was a compliance officer. He worked well in this position. However, the event described in paragraph 9 above seems to have occurred early in 1995. Mr Fitzpatrick said that he left Immigration on leave from 10 April 1995 until 9 April 1996. He took recreation leave until 16 June 1995. From 16 June 1995 until 9 April 1996 he took leave without pay.
There was conflict between the applicant and the respondent's counsel as to the reason for the applicant taking leave without pay. The applicant insisted that it was brought about by the event described in paragraph 9 above. Counsel asserted that the applicant sought leave because he had arranged to take on work as a carer for an injured youth. Exhibit R2 was a copy of a letter from the applicant to a personnel manager dated 4 April 1995. In that letter he sought leave without pay from 10 April 1995 for 12 months. He wrote, "I have made a commitment to provide care to Michael, a [sic] 18 year old severely Brain Damaged person who requires 24 hour care. In partnership with Michael's Father and Mother, I will be providing care for a total of about 88 hours per fortnight. This is a paid position. It is my desire to remain attached to the Public Service, as this type of position is obviously not as secure as my current one. … I would appreciate your urgent consideration in this matter, as I will be left with no option but to resign from the Public Service if my request for Leave Without Pay is not granted." There was no mention of any disgruntlement with the workplace. Dr Champion (ex TD1/T51) also picked up in the history given to him by the applicant that the carer work was actually part-time and not full-time.
In May 1996, Mr Fitzpatrick said, he first heard that he might have to return to the APS because of budget constraints. On 17 June 1996 it was announced that the applicant's secondment to the Immigration Department was to end and he would be returning to the APS (ex TD1/T41). He was ordered to return. The applicant did not return. On 4 July 1996 he lodged another compensation claim (ex TD1/T129). This was rejected on 15 October 1996 (ex TD1/T53). The matter eventually reached this tribunal which, on 14 August 1998, decided that Mr Fitzpatrick merited compensation for adjustment disorder with anxiety and depression (ex TD1/T53). The applicant then qualified for compensation until the decisions that generated the first of the two applications now before the tribunal.
Eventually he was retired from the Australian Public Service with effect from 17 June 1997 on the basis that he had forfeited his office (ex TD1/T62). He was reinstated on 12 November 1998, with effect from 18 June 1997, following an application by Mr Fitzpatrick to the Australian Industrial Relations Commission (ex TD1/T56, T61). In February 1999 Comcare ascertained that the applicant had been working as an Administrative Services Officer class 4 since 12 January 1998 with the Department of Immigration (ex TD1/T62). This was on a limited term contract (ex TD1/T97).
Mr Fitzpatrick qualified for rehabilitation assistance which was forthcoming from early in 1999 (ex TD1/T69). This was successful in placing the applicant with three potential employers. In September 1999 the applicant was invited to apply for a position with the Australian Customs Service (ex TD1/T92). He was interviewed and medically examined in October 1999 (ex TD1/T93). He was rejected, however, despite what he saw as a successful interview (ex TD1/T97). The applicant complained against the Customs Service to the Human Rights and Equal Opportunity Commission ("HREOC"), presumably alleging disability discrimination (ex TD1/T119). The matter reached the Federal Court of Australia where it was settled out of court on 4 December 2000 (ex TD1/T156).
On 16 May 2000 the applicant commenced a work trial at the Darlinghurst office of Centrelink (ex TD1/T120). This was to run until 22 June 2000. However, the trial ceased after nine days because the applicant considered that there was too little meaningful work to do (ex TD1/T125, T127).
On 7 July 2000 the Child Support Agency ("the CSA") took the applicant on in a work trial (ex TD1/T137). The period was three months. This was successful and Mr Fitzpatrick was transferred to a permanent position in the CSA on 1 November 2000 (ex TD1/T149). However, on 4 January 2001 Mr Fitzpatrick wrote that he was resigning from the CSA because he "could not afford" to remain at work (ex TD1/T161). Comcare had ceased liability. Top-up payments additional to the applicant's salary had ceased. Mr Fitzpatrick described this as his "forced" resignation from the CSA. In cross-examination he said that the problem was that he had been denied his request for "leave without pay on medical grounds". Mr Fitzpatrick denied strenuously that it was his decision to leave the CSA. He said he was forced to leave for financial reasons. His wife returned to her work after having looked after children at home.
On 23 January 2001 the applicant's rehabilitation adviser proposed another work trial (ex TD1/T163). This was to run from 23 January to 30 June 2001 at the Repatriation General Hospital. Mr Fitzpatrick appears not to have started this program.
Earlier this year the Australian Government announced that it would be placing air marshals on certain commercial aircraft to assist in cases of terrorism or hijacking. This was being organised through the APS. Mr Fitzpatrick applied for a position with the APS as an air marshal, "a couple of months" before the tribunal hearing. His application was unsuccessful.
dr m gliksmanDr Gliksman was called to give oral evidence at Mr Fitzpatrick's request. Dr Gliksman, an occupational physician, had provided Comcare with a medical report dated 22 November 1999 (ex TD1/T97). He saw no evidence of a significant personality disorder. There were obsessive features present. He noted that Mr Fitzpatrick informed him that he believed that he might respond violently if confronted or harassed as he alleged had occurred previously, within the APS. He expressed clear fears as to possible loss of control in that situation. He expressed a fantasy of shooting his protagonist, however he believed he would possess sufficient self-control not to do so. He appeared to clearly recognise this as a fantasy only. The applicant did not meet the criteria for a significant depressive disorder under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995)) ("DSM-IV"). He was fit to be redeployed to a Commonwealth agency, other than the APS, and into a position where he was not required to carry a firearm.
In oral evidence Dr Gliksman agreed that the symptoms he had recorded in his report could be experienced also by a person with clinical depression. However, he would have made the same diagnosis, ie no significant depressive disorder in Mr Fitzpatrick's case, had he been Mr Fitzpatrick's treating doctor. He would have referred the applicant to a psychiatrist.
dr parmegiani
Dr Parmegiani reported on 3 May 2001 that he had seen Mr Fitzpatrick eight times between 10 August 2000 and 25 January 2001 (ex TD1/T164). He said that the applicant showed obsessional and narcissistic traits. He had had adjustment disorder with anxiety and depression. The adjustment disorder stresses had been removed late in 2000 when he finished his Federal Court case. He expected that the applicant had become fully fit for work by March-June 2001.
In his report and orally Dr Parmegiani said that Mr Fitzpatrick's various legal actions over the years were significant stressors and that he would be best off when they cease. He told respondent's counsel that he spoke of Mr Fitzpatrick suffering from adjustment disorder with anxiety and depression in the past tense in his report because he was unaware of the position in May 2001. He had last seen the applicant in February 2001. He said that Mr Fitzpatrick could still have the symptoms. Another stressor had been that the CSA had offered the applicant only a work trial. When the CSA job became permanent in November 2000 a major stressor disappeared. The witness thought that further litigation by the applicant would cause him additional stress. If Mr Fitzpatrick felt he needed such litigation for vindication he would be best dealt with by dynamic psychotherapy.
The applicant questioned Dr Parmegiani. He put Dr Skinner's reports to the witness. Dr Skinner had said (ex TD1/T140) that Mr Fitzpatrick had an underlying obsessional personality. He responded to stress by becoming angry and argumentative. He was, however, not suffering from a psychiatric illness or emotional disorder. She accepted that he had suffered from an adjustment disorder in 1996. She regarded him as fit for work at full-time hours.
Dr Parmegiani could not explain Dr Skinner's report. He considered adjustment disorder with depressed mood an appropriate diagnosis. It was a psychological condition.
Mr Fitzpatrick referred Dr Parmegiani to the report by Dr V Lajoie, a general practitioner, dated 29 November 2000 (ex TD1/T154). Dr Lajoie said that Mr Fitzpatrick developed anxiety symptoms in December 1991 because of an incident at work. This led to depression which made Mr Fitzpatrick unfit to work from July 1994 until 2000. She had last seen the applicant on 22 March 2000. He had severe thought abnormalities. He had a very high level of anger and anxiety related to his employment with the APS. She wrote, "His symptoms are like a post traumatic stress disorder. He is unable to 'move on'." He was not fit to return to the APS. He was still depressed. He was, however, fit to work at any job (other than at the APS) with any other employer. She saw him as suffering from a 20% permanent impairment on psychiatric grounds.
Dr Parmegiani did not accept all that Dr Lajoie had said. He allowed that the applicant had suffered from anxiety and depression but queried whether the depression was major. He did not agree that Mr Fitzpatrick had post-traumatic stress disorder because there had not been the appropriate precipitating stressful events. He did not regard Mr Fitzpatrick as permanently impaired. Once the stressors were removed Mr Fitzpatrick would lose his symptoms in three to six months. Dr Parmegiani saw the instant proceedings as a temporary stressor for Mr Fitzpatrick.
The applicant asked Dr Parmegiani to address a report by Ms H Clifton, a psychologist, dated 3 August 2000 (ex TD1/T142). She said in her report that she had 11 sessions with the applicant from 1 June 1999 to 21 June 2000. He had undergone psychological testing with her. This had shown an overall very high level of depression. He was rigid, obsessive and suspicious. She concluded that the applicant was fit to perform general clerical duties for public service organisations other than the APS. She said that the meaningful employment would be considerably therapeutic for his depression whereas a return to the APS would be detrimental to his health. Dr Parmegiani would not comment on the psychological tests administered by Ms Clifton, or on their outcome. He said he does not use these tests.
Dr Parmegiani said that he considered that Mr Fitzpatrick could attend work while depressed. He had seen Mr Fitzpatrick when he was working at the CSA. He had expressed symptoms of depression but said that he was well regarded, had been encouraged to try for promotion and was one of the best workers at the CSA. He conceded that Mr Fitzpatrick was on medication for depression at the time.
In further questioning by Comcare's counsel Dr Parmegiani clarified that he disagreed with Dr Lajoie that Mr Fitzpatrick suffered from major depression. He said that severe thought abnormalities are not of themselves a psychiatric condition. While anger and anxiety can be symptoms of a psychiatric condition they can also be a normal reaction to events.
dr skinnerDr Skinner provided three reports – one each on 28 July 2000 (ex TD1/T140), 8 September 2000 (ex TD1/T146) and 20 August 2002 (ex R1). The first of these was described above in paragraph 29. In that report Dr Skinner had concluded that Mr Fitzpatrick had no permanent impairment resulting from adjustment disorder with a depressive reaction. However he was 5% permanently incapacitated because of his underlying personality factors.
In the second report she commented on Ms Clifton's report (see paragraph 33 above). She did not see any reason to alter her assessment as both experts had come to similar conclusions regarding Mr Fitzpatrick's work capacity.
Dr Skinner saw Mr Fitzpatrick on 18 July 2002 before writing her third report. He told her that he has an adjustment disorder, that he has a paranoid personality disorder, that he had been assaulting his wife and that he was homicidal and suicidal. He said that he thought he would kill the people at Comcare and their legal representatives. He told her that he had recently applied for a job, presumably the air marshal job, in the APS. Dr Skinner did not think Mr Fitzpatrick was suffering from a psychiatric illness or emotional disorder. He had obsessional, narcissistic and paranoid personality traits. A permanent impairment assessment was not appropriate as Mr Fitzpatrick had no psychiatric illness or mental disorder. Mr Fitzpatrick was assessed as fit for work.
Comcare's counsel questioned Dr Skinner. She addressed Dr Lajoie's report and disagreed that Mr Fitzpatrick had major depression. She had seen no evidence of this. Counsel asked Dr Skinner about Mr Fitzpatrick's medication, Efexor. Dr Skinner said that, from what Mr Fitzpatrick had said about his symptoms, it did not seem to be working. That suggested that he has no major depressive illness. She agreed with Dr Parmegiani that Mr Fitzpatrick has no post-traumatic stress disorder. The applicant had presented with no more than a very few of the symptoms of post-traumatic stress disorder.
Mr Fitzpatrick questioned Dr Skinner. In her first report Dr Skinner listed the applicant's "present complaints":
Sleep disturbance with insomnia.
Goes to bed early but wakes frequently.
Ruminates over his situation, of not having a permanent job, about his future and his problems with Comcare.
Tired and "ready to collapse" in the morning.
Mood unhappy all the time.
Zero energy level.
Poor motivation.
Often leaves things because he cannot be bothered.
Dr Skinner said that these symptoms alone do not indicate mental illness. Much else is considered also in making a diagnosis. She said that this description of symptoms did not exclude the possibility or probability of a psychiatric disorder, but the applicant's whole history and examination had to be taken into consideration.
The applicant put to Dr Skinner that she had diagnosed no adjustment disorder in July 2000 whereas Dr Parmegiani shortly after had found such a disorder. Dr Parmegiani saw the applicant on 10 August 2000. Dr Skinner said that she disagreed with Dr Parmegiani on that point.
The applicant put Dr Lajoie's assessment of a major depression to Dr Skinner. In answer to a question Dr Skinner said she could not say whether Dr Lajoie was capable of making such a diagnosis. However, she would expect a general practitioner to refer a patient to a psychiatrist if she thought the patient had a major depression. Asked about anxiety Dr Skinner made similar comments.
Dr Skinner explained that she accepted that Mr Fitzpatrick has anxiety and depression but only to a "normal" degree. The symptoms have to be prolonged and entrenched to amount to a psychiatric illness. In the applicant's case there was no impairment of cognitive function or motor responses, such as are necessary for mental illness.
The applicant put to Dr Skinner that he has had an adjustment disorder with depression and anxiety since 1991 with the APS-related precipitating factors still affecting him. Dr Skinner said that adjustment symptoms can persist. However, there had been a range of stressors in Mr Fitzpatrick's case. There was his attitude to Sgt Menzies, his successive litigation and his family problems. There had also been periods of satisfactory functioning. While the applicant saw all of the factors as interrelated and stretching back to 1991, this did not amount to an adjustment disorder. An adjustment disorder is transitory. Mr Fitzpatrick had had a succession of stressors. Personality factors best explained his situation.
Dr Skinner, contrary to Dr Gliksman, had seen the applicant as fit to return to work as a protective services officer where Dr Gliksman had said he should not work with a firearm. Dr Skinner said she saw the applicant seven months after Dr Gliksman and did not assess him as a risk to the community if he had access to a firearm in his work.
The applicant put Ms Clifton's psychological assessment that he had severe depression to Dr Skinner. The tests done by Ms Clifton took place a month or so before the applicant saw Dr Skinner. Dr Skinner addressed the details of the results in ex TD1/T142. She saw them as consistent with Mr Fitzpatrick's personality style. She had little regard for the test outcomes regarding hypochondriasis and suicidal depression. She favoured a psychiatric interview in assessing such matters. The same applied for depression. Overall Dr Skinner said that she preferred to use other psychological tests when she was using tests to arrive at hard psychiatric diagnoses. Dr Skinner said that psychological tests were not entirely valid in the medico-legal context. They are appropriate in treatment as a longitudinal measure of trends in symptomatology. She saw this as true for other measures reported on by Ms Clifton such as low energy depression, boredom/withdrawal and psychasthenia, and for the second order factors.
other expert evidenceIn addition to the three medical witnesses seen by the tribunal, and others whose opinions they addressed, the following assessed the applicant at various times:
Mr G Hiscox, a psychologist, reported on 7 October 1994 (ex TD1/T32) that Mr Fitzpatrick had mild depression and an anxiety state greater than that of 98% of the population. He diagnosed a paranoid personality disorder.
Dr B Wu, a treating psychiatrist, reported on 31 January 1995 (ex TD1/T39) that the applicant suffered from work-related stress causing an adjustment disorder which had improved markedly with treatment.
Dr V Lajoie, the general practitioner, reported on 12 May 1997 (ex TD1/T49) that the applicant suffered from anxiety and reactive depression at the threat of a return to the APS (in mid-1996). His depression and anxiety were associated with his personality disorder.
Dr J Taylor, a treating psychiatrist, wrote on 29 September 1997 (ex TD1/T50) referring to Mr Fitzpatrick's obsessional character.
Dr J R Champion, a psychiatrist, wrote on 31 October 1997 (ex TD1/T51) observed a strongly obsessional personality structure with no psychiatric disorder present at the time. He diagnosed an obsessive compulsive personality disorder.
Dr A White, a psychiatrist, wrote on 29 January 1997 (ex R3) that the applicant had no psychiatric disorder. He concluded that Mr Fitzpatrick did not want to work. He diagnosed a personality dysfunction.
Dr Lajoie in the claim form for permanent impairment (ex TD2/ T4) wrote on 26 September 2001, "Mr Fitzpatrick is functioning at 30-50% of normal. He appears to be only able to look after his sons. He is unable to go back to the workforce".
FINAL SUBMISSIONS
counsel for respondent
Counsel for the respondent referred to comment by Dr Skinner that the applicant had suffered at times from temporary exacerbation of personality deficiencies. He submitted that the applicant was not incapacitated for work. He referred to Dr Skinner's comment at ex R1/5 where she said that a number of specialists had considered that Mr Fitzpatrick had a diagnosis of personality disorder. She said, "Personality disorder refers to ingrained personality traits that are maladaptive and cause difficulty in coping for the person".
Counsel referred to the history taken by Mr Hiscox (ex TD1/T32/69):
"Mr Fitzpatrick's early work history was characterised by lack of direction (filling in time whilst looking for a way to enter the police force) and dissatisfaction with interpersonal relationships at work. He left his first job as a shelf packer because he viewed the extra responsibilities his employer delegated him as abuse of his efficiency in order to cut staff numbers. He left his second job as a jewellery sales assistant due to dissatisfaction from his sales peers for topping the sales records and being the 'favourite' of his manager.
"Mr Fitzpatrick entered the security industry when he was employed by Macquarie Pathology. He left this job for a better job at the Hyatt Kingsgate. He commenced here as a security clerk and progressed to a security officer. He expressed some dissatisfaction with the work methods here, describing himself as the only worker who actively pursued decreasing the relatively high theft rate in the hotel. From his reports he made a significant impact on reducing the crime rate. However, he generally described the security prevention as lax and a reflection of the poor work of his manager. He described an incident when a hostess of large airliner asked him if she would be safe in her room and he replied no and proceeded to instruct the hostess in how to set up a makeshift burglar alarm in her room. Mr Fitzpatrick explained that he was only being honest but his comment almost lost the hotel the contract with the airline company and his manager his job. As a result Mr Fitzpatrick felt pressure to leave this employment.
"After two years working as a recreation officer in a nursing home and being unsuccessful for entry to the police force, he learnt of and became excited about a career with the Australian Protective Services...."Counsel suggested that this showed a series of workplace problems and supported Dr Skinner's diagnosis of a longstanding, ingrained personality disorder.
Counsel conceded that Dr Parmegiani disagreed with Dr Skinner as regards the timing of the adjustment disorder. Dr Parmegiani was prepared to accept that it affected Mr Fitzpatrick later than was Dr Skinner. However, as regards the applicant's fitness for work, there was no dissent amongst the experts. Ms Clifton regarded him as fit for clerical duties other than at the APS. Dr Parmegiani saw the applicant as fit for work in 2001. Dr Gliksman saw the applicant as generally fit to return to work.
Counsel criticised Dr Lajoie's report. In ex TD1/T154 she said that the applicant had been unfit for work from July 1994 to recently (as at late November 2000). This was not correct. Mr Fitzpatrick had worked since 1994, as shown above in paragraphs 16 - 24. The psychiatric specialists did not accept that Mr Fitzpatrick was clinically depressed or suffered from post-traumatic stress disorder.
Counsel referred to the factors identified by Dr Parmegiani as causing stress to Mr Fitzpatrick. These included his failure to obtain the Customs job and his work at the CSA being a trial placement in the first instance. As counsel said, these are not compensable under the Act. Counsel submitted that, even if Mr Fitzpatrick had an adjustment disorder, the precipitants were of a particular time and had passed. The enduring feature in Mr Fitzpatrick's case was his litigation history. This was also not compensable. Viewed against the history of temporary stressors, any events occurring as long ago as 1991 and 1994 were no longer relevant.
Counsel made two subsidiary submissions.
The applicant has had no meaningful contact with the APS since 1994. As far as Immigration went, he worked with Immigration for two years from 17 October 1994 to June 1996, and again from 12 January 1998 to February 1999. That work cannot have been uncongenial to him.
It was the applicant's choice to approach the APS and seek work as an air marshal after years of professing great anxiety at the thought of returning to the APS.
Counsel submitted that Comcare was not liable to pay compensation to Mr Fitzpatrick under s 14(1) of the Act. From that it flowed that Comcare was not liable to make a payment in respect of permanent impairment under ss 24 and 27 of the Act.
mr fitzpatrickThe applicant relied on Dr Parmegiani to argue that Dr Parmegiani had identified a long line of stressors affecting the applicant. He had been employed continuously by the APS until recently when he was transferred to the CSA (in November 2000). He said that he lived under the constant threat of being required to return to the APS. He said that Dr Parmegiani saw adjustment reaction and depression as precursors to his employment problems with the Customs Service and the CSA.
He explained the application to return to the APS to become an air marshal as a "private matter between [himself] and 'Martin Studdart'". Mr Fitzpatrick considered that he should have been given the job if he did not have a psychiatric problem. He told the tribunal that he did not really want the job when he applied and that he had intended to take the matter to the HREOC. However, he had decided against that. He said, "If I've got to live with it, he's got to live with it."
Mr Fitzpatrick told the tribunal that he had not claimed for permanent impairment prior to the cessation of compensation liability because he had intended taking the APS and Comcare to the Federal Court, the basis being unclear to the tribunal. However, he said that he had seen the effect of the Customs issue on his family and decided he could no longer take Comcare to the Federal Court. He said that he did not want to have to elect to sue at common law. He could not afford it. He did not want to claim for permanent impairment because he would have had to elect whether to pursue compensation or a common law damages action. He considered that he was entitled to damages for pain and suffering.
Mr Fitzpatrick reserved particular opprobrium for the Comcare delegate who made the initial decision to cease effects on 25 May 2001 (ex TD1/T166). On the first day of the hearing he alleged that the delegate had not sent letters to Ms Clifton and Dr Lajoie seeking updated information on Mr Fitzpatrick's condition. This was despite copies of such letters appearing in ex TD1. He criticised the delegate for arranging appointments for him to see Drs J Champion and R Lewin, doctors whom he had previously objected to. He suggested that the delegate did not want to receive any opinions other than Dr Skinner's prior to deciding to cease effects. He saw it as "all very unorthodox".
The applicant returned to the matter of the Comcare delegate. He described her as incompetent. He said that he had to do all the work to obtain the reports put before the delegate except for Dr Skinner's report. He referred to ex TD1/T148, a standard type of letter used by Comcare delegates ("the show cause letter"). It stated that the evidence suggested that liability might no longer attach to Comcare but allowed the applicant 28 days in which to produce evidence to rebut that suggestion. The applicant said that the delegate had already made up her mind. However, the tribunal notes, no decision was taken until after evidence from the applicant's experts was available. This was seven months after the show cause letter. He alleged that the delegate discriminated against him because he had complained about her to her superiors. He was critical that Dr Parmegiani's report had not been sent to Dr Skinner for comment. The tribunal has recorded these comments in order to reflect Mr Fitzpatrick's concerns. However, Mr Fitzpatrick may not be aware that, judging from the documentation, neither Comcare nor its officers has treated Mr Fitzpatrick in any less favourable way other than the way in which employees dealing with Comcare are generally treated. They extended him the normal courtesies and at times went out of their way to attend to the higher than normal workload generated by his various telephone calls to them. In fact, Comcare went out of its way to accede to Mr Fitzpatrick's expressed preferences regarding doctors to whom Comcare wished to refer him for examination. He did not appear to understand that it is normal for an employee to gather his or her medical certificates and reports for submission to Comcare, instead expecting Comcare to do this work for him.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The primary job of the tribunal is to deal with the decision made on 25 May 2001 to the effect that the applicant was no longer suffering from an injury under the Act as of 27 February 2001, ie the decision relevant to application N2001/1451. If the tribunal believes that to be the correct or preferable decision the decision will be affirmed. The tribunal notes and accepts that the respondent and/or the tribunal have, for several periods of time, accepted that the applicant had an injury warranting compensation under the Act. However, it is possible for the effects of such injury to cease and that was what the respondent contended had occurred here.
The tribunal finds that the effects of Mr Fitzpatrick's compensable injury had ceased by 27 February 2001. Several potential diagnoses were proffered regarding the injury, if any, that Mr Fitzpatrick may have had on 27 February 2001. Dr Lajoie regarded the applicant as depressed on 29 November 2000 (ex TD1/T154). On 26 September 2001 she diagnosed depression and adjustment disorder (ex TD2/T4/8). Ms Clifton (ex TD1/T142) also diagnosed depression.
Dr Parmegiani in his report dated 3 May 2001 (ex TD1/T164) pointed to obsessional and narcissistic traits. He said that the applicant had suffered from an adjustment disorder with anxiety and depression but that the adjustment disorder stresses were removed at the end of 2000 when the applicant won his permanent position at the CSA. In oral evidence he allowed that the adjustment disorder could be ongoing but that its cause would be the applicant's tendency to resort to litigation.
Dr Skinner (ex R1) diagnosed no psychiatric illness or emotional disorder but found a personality disorder with ingrained personality traits, viz paranoid, narcissistic and obsessional personality traits, that are maladaptive and cause difficulty in coping for the person.
The other assessments are of little assistance. Mr Hiscox (ex TD1/T32) saw the applicant eight years ago and so his views are outdated. The same applies in relation to Drs Wu (ex TD1/T39), Taylor (ex TD1/T50), White (ex R3) and Champion (Ex TD1/T51).
The tribunal puts to one side Dr Lajoie's opinion. Dr Lajoie is a general practitioner and not a psychiatrist. She is therefore less equipped than the psychiatrists to assess whether Mr Fitzpatrick had and has a psychiatric disease and, if so, what might be the cause or causes. The tribunal acknowledges counsel's observation that Dr Lajoie appeared unaware that Mr Fitzpatrick had been able to work between 1994 and 2000. In any event, in her report in November 2000, Dr Lajoie considered that Mr Fitzpatrick was fit for work. Even if he had a compensable injury he had no incapacity such as would attract weekly incapacity payments under s 19 of the Act. Ms Clifton had also considered Mr Fitzpatrick fit for work even if depressed.
Mr Fitzpatrick was asked by tribunal member Dr Lynch why he regarded himself as depressed. Mr Fitzpatrick said that he was depressed when working at Immigration and the CSA. He had no enthusiasm in that work. At Immigration he was still affected by his APS experience. He was still in contact with the APS and was on secondment from there. The APS was still in a position to affect his life at Immigration. He attributed the complaint that he had failed to supervise a detainee to APS intervention.
The tribunal also pointed out that the experts were largely agreed that Mr Fitzpatrick was able to return to work in 2000-2001. We asked Mr Fitzpatrick how he could say that he was not fit to return to work in the face of such evidence. Mr Fitzpatrick said that the experts certified him as fit for work because they wanted him to have access to rehabilitation and that could not occur if he was unfit to return to work. The applicant put this to Dr Skinner who thought it most improbable that a medical practitioner would falsify a medical report or certificate on such a basis. The tribunal would observe also that, in our experience, many an employee with work restrictions and with a disability of some sort has been provided with rehabilitation in cases that have come before us.
The tribunal found Dr Lajoie's opinion as expressed in the permanent impairment claim form (ex TD2/T4) unhelpful. By the date of that opinion, 26 September 2001, Dr Lajoie had concluded that Mr Fitzpatrick could not return to the workforce and that he was suffering from depression and an adjustment disorder. She did not explain how, if at all, these conditions prevented the applicant from working or what, if any, connection they had to his employment with the APS.
The tribunal finds that, if Dr Parmegiani was correct and the applicant was suffering from an adjustment disorder with anxiety and depression in February 2001 and later, Dr Parmegiani was correct in attributing that to Mr Fitzpatrick's proneness to engage in litigation, a matter not related to his employment with the APS. Dr Parmegiani regarded the applicant as fit for work.
The tribunal notes that, if Dr Skinner is correct in her diagnosis, the applicant's condition is constitutional and is not regarded by the psychiatric profession as an illness or disease. While it is possible that work may exacerbate this constitutional condition and that may result in compensation, there was no evidence other than Mr Fitzpatrick's own belief, that the applicant's long past employment with the APS was causing any exacerbation in 2001. Dr Skinner also regarded the applicant as fit for work.
The tribunal notes that Mr Fitzpatrick seemed to regard himself as fit for work and, indeed, fit to return to work at the APS, in mid-2002. He had initiated an attempt to secure work with the APS at that time. The tribunal noted Mr Fitzpatrick's evidence as to his reasons for making that application (see paragraph 58 above). Such an action would be regarded by Dr Parmegiani as injudicious in that it perpetuated Mr Fitzpatrick's proneness to litigation that Dr Parmegiani regarded as the cause of the applicant's adjustment disorder.
The tribunal has therefore found that, as of 27 February 2001, Comcare was not liable under s 14(1) of the Act to pay compensation to the applicant in respect of his employment with the Commonwealth of Australia.
Finally, the tribunal notes that Mr Fitzpatrick won a position with the CSA after a three-months trial period during which he was able to work at a sufficient level to convince the CSA that he merited permanent employment. It was the applicant's choice to resign from that employment. He resigned from a position paying over $30,000 a year to stay at home and care for his children in return for no income. This was because Comcare had refused to pay him incapacity payments to take his income up to around $40,000 a year. Even if Mr Fitzpatrick were suffering from an injury under the Act, his voluntary resignation would preclude him from incapacity payments under s 19(2) and (4)(c) of the Act.
As regards the decision to reject the claim for a permanent impairment payment, ie the decision to which application N2001/1835 relates, the tribunal finds that the applicant is not entitled to such a payment. As was decided by Deputy President Burns in Re Denison-Smith and Comcare (2000) 64 ALD 180, where Comcare is not liable to pay compensation under s 14(1) of the Act, Comcare is not liable to make a permanent impairment payment under ss 24 and 27 of the Act.
CONCLUSIONThe tribunal has found that the applicant, as at 27 February 2001, was no longer suffering from an injury as defined in s 4(1) of the Act. This meant that Comcare was no longer liable to pay compensation to the applicant in accordance with s 14(1) of the Act. That in turn meant that Comcare was not liable to make a permanent impairment payment to the applicant in accordance with ss 24 and 27 of the Act. The applicant has, therefore, not succeeded before the tribunal on this occasion.
COMMUNICATIONS BY THE APPLICANT TO THE TRIBUNAL AFTER THE HEARINGAt the end of the hearing Mr Fitzpatrick expressed frustration that the medical evidence before the tribunal did not provide him with much support for his position that he was unable to work because of psychological and psychiatric conditions attributable to his work for the APS. He considered that Dr Lajoie and Ms Clifton would support him in his views. The tribunal doubted that it would benefit from additional material from these experts. The tribunal has already explained why it preferred the views of the psychiatrists to those of Dr Lajoie. Ms Clifton is a psychologist rather than a psychiatrist and, again, the tribunal would be unlikely to prefer her views over those of the psychiatrists if her views were at variance from those of the psychiatrists. The tribunal nevertheless agreed to accept any material from his medical experts that Mr Fitzpatrick might wish to present within four weeks of the close of the hearing. Should such material have been lodged the tribunal would have provided a copy to the respondent and sought its views. Mr Fitzpatrick did not lodge any such material.
He said also that his wife could describe how difficult it was to live with Mr Fitzpatrick. He had wanted the tribunal to summons his wife to give evidence with him absent from the hearing room. The tribunal had explained that this was not possible because he would need to be present to hear evidence presented to the tribunal and the tribunal may not be aware in any case of the questions Mr Fitzpatrick wanted asked of Mrs Fitzpatrick. It appeared to the tribunal superfluous to issue a summons to secure Mrs Fitzpatrick's attendance. There was no impediment to her attending the tribunal if Mr Fitzpatrick wished her to do so.
In any event, the problem with any evidence suggesting that Mr Fitzpatrick's condition has worsened in recent times, based on the psychiatric evidence before the tribunal, is that it not likely that such a worsening would have been caused by his employment with the APS which ceased years ago. As was discussed earlier, it is more likely that such a worsening would be attributable to Mr Fitzpatrick's litigation, including the instant applications to the tribunal, and to his underlying personality and its effects on his ability to cope with family and other non-employment stresses. These are non-compensable causes.
After the hearing ended on 4 October 2002 the applicant sent several items to the tribunal. In a letter to the tribunal's District Registrar Mr Fitzpatrick:
Provided a letter of authority to the Director of the APS permitting him to release a copy of the applicant's application for employment with the APS made in about June 2002. This was said to be to allow the tribunal to better understand Mr Fitzpatrick's thinking behind making the application.
Asked that the tribunal seek from Dr Lajoie and Ms G Marsh, answers to the set of questions Comcare had sent to Dr Skinner.
Provided referee reports from previous workplaces and school to refute Mr Hiscox's history regarding workplace problems prior to when Mr Fitzpatrick joined the APS.
The tribunal did not contact the APS. Mr Fitzpatrick had explained his thought processes in applying for work in 2002 with the APS in his sworn evidence. It was unnecessary to obtain documentary corroboration of this evidence which the tribunal accepted.
The tribunal noted the referee reports but considered that the reports from schoolteachers were not relevant as they stemmed from almost 20 years ago and did not address issues relevant to the matters before the tribunal. The reports from workplaces were of limited interest although of some possible relevance. However, the history recorded by Mr Hiscox (see paragraph 50 above) came from the applicant and reflected attitudes to work decisions reinforced in the applicant's own documents. In ex TD1/T30 the applicant presented a fairly consistent picture of himself as one who worked better and harder than his colleagues and who suffered in one way or another as a result. He provided examples, on a number of occasions referred to in these reasons, of times when he vacated positions by resignation or transfer or resignation in order to indicate his disgruntlement with management for one or other reason. Mr Hiscox's material was consistent with this other material from the applicant himself. Some of these references were also cautiously worded and not greatly enlightening. Others suggested that certain personnel in a number of organisations were supportive of Mr Fitzpatrick yet, the tribunal notes, he nevertheless left those organisations in unhappy circumstances.
As preliminary consideration of this material did not influence the tribunal to alter its view regarding the appropriate outcome in the case, the tribunal did not request any comment from the respondent.
DECISIONThe tribunal affirms the decisions under review in these applications. The applicant is not entitled to costs associated with these applications.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, Member
Signed: .....................................................................................
AssociateDates of hearing 3 – 4 October 2002
Date of decision 6 December 2002
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