Foley and Military Rehabilitation and Compensation Commission
[2006] AATA 1113
•22 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1113
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/260
VETERANS' APPEALS DIVISION ) Re DANIEL JOSEPH FOLEY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)Date22 December 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and finds that the incidents that occurred in the last two years of the applicant’s military service, as set out in this decision, continue to contribute in a material way to his ongoing incapacity.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – injury arising out of or in the course of employment – disease – excessive postings – incident during helicopter refuelling – anxiety disorder – major depressive disorder – avoidance behaviour – alcohol dependence – bipolar disorder considered as alternate diagnosis – failure to respond to treatment – medical evidence discussed – does employment continue to contribute in a material way to the applicant’s condition? – change of prior determination – respondent to establish facts to justify change of diagnosis – regard to be given to the laws of evidence and underlying principles – case not made out by respondent – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
Compensation (Commonwealth Government Employees) Act 1971Administrative Appeals Tribunal Act 1975 s 42(1)
The Commonwealth of Australia and Muratore (1978) 141 CLR 296
Phillips v The Commonwealth of Australia (1964) 110 CLR 347
Re Ileris and Comcare [1999] AATA 647
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Re Hardman and Comcare [2006] AATA 468
Comcare v Canute [2005] FCAFC 262REASONS FOR DECISION
22 December 2006 Senior Member L Hastwell
Dr E T Eriksen (Member)1. On 24 October 1996 Daniel Foley (the applicant), an officer with the Royal Australian Navy (the Navy), lodged a claim for rehabilitation and compensation in respect of stress, namely anxiety and depression which he attributed to “Conflict with Commanding Officer 1995. Excessive postings/job changes”.
2. By determination dated 2 January 1997 the Military Rehabilitation and Compensation Commission (the MRCC), accepted liability for work related stress. The date of injury was taken to be 1 August 1995 as this was the date given in medical documents as being the date of onset of the injury.
3. On 7 June 1997 the applicant was discharged from the Navy at his own request. Thereafter he travelled for a period and then had employment with Woodside Petroleum as a clerk. He resigned from that employment in June 1998 and since then he has not had employment.
4. The applicant received incapacity payments from late 1998 until 16 February 2005. After a review of his case the MRCC determined that the applicant was no longer entitled to receive incapacity benefits on the basis that the principal cause of his incapacity for work was no longer related to his military employment. The applicant was no longer entitled to receive incapacity benefits as and from 16 February 2005.
5. Upon a request by the applicant for reconsideration of that decision, a reviewable determination was made on 27 July 2005 affirming the determination of February 2005.
6. The applicant seeks a review of the reviewable determination to this Tribunal.
legislation
7. The applicant's entitlement to compensation arises under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Section 14(1) of the SRC Act 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.”
Section 4 of the SRC Act defines the terms “disease” and “injury” as follows:
“disease means:
(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.
…
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
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.”
8. Once the MRCC accepts liability, then the applicant's entitlement to incapacity payments arises under Division 3 of the SRC Act.
background
9. It is common ground that the applicant continues to be incapacitated as a result of a psychiatric illness.
10. The MRCC accepted liability for the applicant's work related stress on 2 January 1997 and continued to accept liability until the matter was reviewed and it was determined that liability should cease in February 2005.
issues
11. The issues for the Tribunal to determine in this case are:
· from what condition does the applicant suffer; and
· is that condition and his consequent incapacity, related to his employment such that his ongoing incapacity can be said to continue to arise out of or in the course of his employment?
the hearing
12. Both parties were represented by counsel at the hearing. The applicant gave evidence. His treating psychiatrist, Dr Ash, also gave evidence on his behalf. The MRCC called Professor Goldney, a psychiatrist to give evidence. The T documents were received into evidence, as were a number of other exhibits which will be referred to where relevant.
13. The applicant confirmed as being accurate his statement of 10 May 2006 (Exhibit A2). The applicant was 41 years of age at the time of the hearing. He joined the Navy when he was almost 16 years of age in April 1981, and served until he resigned in June 1997. He held the position of an officer when he resigned.
14. He had some success in his Naval career. In 1987 he successfully completed the Officers Training Course. In 1988 he successfully completed the Junior Supply Officers course. Thereafter he held various postings with the Navy until he voluntarily ceased his employment in June 1997.
15. The applicant joined HMAS Sydney in March 1995. He was a Deputy Supply Officer and one of the Helicopter Control Officers. It was during this posting that an incident occurred that the applicant asserts is a significant contributor to the disability that continues to render him incapable of working.
16. In June 1995 the applicant was involved in a night-time helicopter in-flight refuelling exercise (the HIFR incident). He described this as being an inherently dangerous exercise that is rarely conducted and which is even more dangerous when conducted at night. An airborne helicopter refuels from the vessel. The applicant was stationed on the deck of the ship, and his task was to control the deck and liaise with the bridge during the exercise. He was nervous. The helicopter was hovering with its rotor blades at head level as it refuelled when the helicopter pilot requested that the refuelling lights be dimmed as they were causing him glare. The applicant was aware that the lights on the deck were fixed and could not be dimmed. He responded to the pilot that there was “no volume control”. By this he meant “dimmer”. In his statement at paragraph 66 he comments that he used these words out of nervousness and not out of any attempt at humour.
17. The voice of the Commanding Officer (CO) immediately came through his headphones saying “DSO I am going to kill you”. He then repeated this saying “DSO I am going to f------g kill you”.
18. This interchange was broadcast over the operation room and the hangar, and was heard by other individuals on the ship.
19. The applicant was flustered and upset by what he perceived to be an unreasonable and unjustified verbal attack on him by the CO. He felt immediately very anxious. Once the exercise was complete he went to the officer's mess. A couple of officers advised him to stay away from the CO because he was very upset with him. The CO did not call him in to censure him, but rather embarked on a course of humiliating him over the next two weeks.
20. As part of his role as DSO, the applicant was required to regularly report to the CO. The CO made an overt show of his displeasure towards the applicant over the next two weeks by either refusing to allow him to report to him directly and insisting that someone else report or by making him wait for unreasonable periods of time in a corridor (sometimes hours), when he went to report to him. Colleagues warned him that he was in trouble with the CO and that he should stay out of his way. This affected his self-confidence and undermined his authority. He explained to the Tribunal that the CO had significant power over individuals under his command, and he could issue an unfavourable report which could have a significant effect on further promotion. He was coming into “the promotion zone” (Exhibit A2/para 73) and became fearful of an unfavourable report. A number of officers had resigned around this time because of their treatment by this particular CO and their lack of recourse.
21. He found the CO’s treatment of him denigrating and distressing. He began to have difficulties with sleeping and was troubled by the incident. On the advice of a colleague he decided to take leave, and some two weeks after the incident he spent some time in Adelaide on leave at his father's home. He recalls discussing the possibility of resigning with his father at the time.
22. The particular CO left the ship soon after the applicant returned from leave in July of that year. He was replaced by a more reasonable and sympathetic commanding officer, CO Darby. Nevertheless, by August the applicant had decided he would resign and he tendered his letter of resignation dated 23 August 1995 (Exhibit A3).
23. Prior to this, the applicant had discussions with CO Darby and Lt Commander Sackville about resigning. They counselled him against resignation. He drafted the letter over a week or two and showed it to Lt Commander Sackville and discussed the topics in the letter with him.
24. The letter of resignation listed a number of reasons for his resignation of which the HIFR incident in June and its sequellae was the last mentioned. The applicant explained to the Tribunal that there were other Naval issues also troubling him at the time and, as he had in his words “just one shot”, he included in his letter all the things that he perceived were problems in the Navy at the time. His superiors advised him not to include the HIFR incident as he may wish to return to the Navy in the future. Despite this advice he decided to leave it in the letter, but to place that incident lower in the order of reasons given.
25. He told the Tribunal that at that time he was already exhibiting symptoms of increased alcohol consumption, stomach disorders and what he referred to as his “lifestyle collapsing”. When cross-examined, he acknowledged that he had signed a discharge health statement in December 1996 (T19/52) that dated the onset of his various symptoms including anxiety, depression and gastric symptoms as being from November 1995. He commented that he was in a poor state when he filled in this form and he remained convinced that the symptoms started earlier.
26. The applicant took all his leave entitlements in November 1995 with the intent that his resignation would be effective once his entitlements were exhausted. Thereafter he travelled around Australia with friends. He describes this as not being a happy journey. His attitudes were changing, he was drinking to excess, gaining weight, he had lost his interest in sport and he was generally not happy. His friends left the trip early and while travelling on his own in the Northern Territory he decided to withdraw his resignation. He did so and returned to the Navy in February 1996.
27. He returned to a posting at HMAS Creswell in Western Australia and to a position he felt very positive about. He was assured that position would last for 12 months. He rented a house within walking distance of the Base and near the beach. Two weeks later and without any consultation with him, he was reposted to a position on HMAS Albatross. This posting involved an 80 km round trip each day. It was a stressful position and he had long working hours working with a CO who he described to the Tribunal as being a workaholic. He felt obliged to maintain much the same pace as this CO, and so he usually travelled home in the dark after long and tiring days at work.
28. In June 1996 he attended a seminar on harassment. For the first time he realised he could lodge a formal complaint about the HIFR incident. He saw the incident in perspective for the first time and lodged a harassment complaint in June 1996 (T23). His complaint has, in his mind, never been adequately dealt with by his employer. He was reposted to HMAS Cresswell in July 1996 as his posting to HMAS Albatross was completed.
29. By August 1996 he was experiencing significant psychological problems. He continued to complain of gastric problems, migraines, headaches, excessive perspiration, and what he described as “a complete lack of work effort … I could not sleep … I was obsessing about the Sydney incident”.
30. He sought medical attention. He continued to consume excessive alcohol. He took some sick leave that year. He described a number of occasions prior to October 1996 when the Navy would send an ambulance to bring him to work. He would be given oxygen and would then be sent to his post. Despite psychological assistance during this latter half of 1996 and some time away from work, his anxiety and depression worsened and after a brief period of going absent without leave in October 1996 he resigned once more.
31. He took his remaining leave entitlement from November 1996. He travelled overseas during the next few months. On his own account he was quite well in the months following his departure from the Navy. He described life as being “no work - no responsibility - good events”. He travelled to Europe and Africa, and particularly enjoyed the time spent in Africa. He was easily able to afford the holiday. He visited his mother in the United Kingdom.
32. He returned to Australia and his resignation became effective from 7 June 1997. Liability for work-related stress had been accepted by the MRCC in January of that year (T20/53). At the time of his resignation he considered that he still had symptoms of anxiety, but he was able to live with them. He told the Tribunal that his symptoms of depression had ceased. As he wanted to keep open the option of joining the Navy Reserve, he had himself medically reclassified as fit to join the Reserves.
33. After his discharge from the Navy, he obtained employment in a clerical position at Woodside Petroleum in Perth. Initially he worked through Drake Overload as a clerk. He did not work full-time, but as required and usually part-time. In the 10th month of working through Drake Overload he was offered full-time employment by Woodside Petroleum. He described this as being a big step up in responsibility. His duties in this position would include reviewing big contracts and having some involvement in writing contracts. He held the position for only two weeks and then resigned. He recalls having a lot of gastric problems once more and suffering from lethargy. He described himself as being very confused at the time and he was recommended to a psychiatrist who diagnosed him as suffering from anxiety. He could not manage the tasks of full-time employment because of the severity of his symptoms of anxiety.
34. He has not worked since that time. He has seen a number of therapists and Dr Ash has been his main treating psychiatrist. Trials of medication have been unsuccessful because of unpleasant side effects. He has undertaken courses in the process of attempted rehabilitation, but as exams approach he is unable to concentrate. He has not successfully completed any course.
35. He has resided in Thailand since May 2005. He has a de facto spouse and child. His description of his current lifestyle is that he plays computer games, drinks alcohol, and enjoys playing with his baby daughter. He does not work and feels that his symptoms are greatly improved in Thailand, but are exacerbated by dealings associated with his case. He receives a TPI pension. He owns assets in both Thailand and Australia. He has some desire to return to Australia with his family in the future.
medical evidence
36. The Tribunal heard evidence from Dr Ash and Professor Goldney. The applicant's service medical records were available for the Tribunal (Exhibit R1).A number of medical reports were also contained in the T documents and considered by the Tribunal.
37. Dr Ash is the applicant's treating psychiatrist. He first saw the applicant on a medical referral in January 1999. In his initial report dated 3 August 1999 (T37/107) he diagnosed the applicant as suffering from an anxiety disorder with major depression with elements of phobic anxiety and avoidance behaviour. He had further contact with the applicant after the initial consultation and that report was based on his ongoing clinical contact with the applicant. He was of the view at that time that the applicant's employment had contributed materially to the precipitation and perpetuation of his symptoms.
38. Dr Ash expressed his opinion that the applicant is incapacitated for employment and his diagnosis remains the same. He remains firmly of the view that the applicant’s employment has contributed to the applicant’s ongoing incapacity for work. Dr Ash has continued to see the applicant intermittently over the years since 1999.
39. Dr Ash has tried a number of different therapies with the applicant including psychotherapy, medication and cognitive behavioural therapy. To date he has experienced little success in treating the applicant's condition. The applicant has experienced unpleasant side-effects from a number of different types of medication prescribed. His opinion was that the applicant continues to be significantly disabled by his symptoms, possibly because of an underlying psychological or biological vulnerability. His excessive use of alcohol also complicates his management. He pointed to panic attacks from which the applicant suffers and which began after the HIFR incident of June 1995, as being an indicator of this underlying biological problem.
40. He had carefully considered the alternative medical diagnosis of bipolar disorder put forward by Professor Goldney primarily in his report of 4 January 2005 (T66) and confirmed in his report of 17 January 2005 (T68). He also spent some time with the applicant reviewing Professor Goldney’s report. After discussion with the applicant and based on his own observation of the applicant over a number of years, it was his opinion that Professor Goldney had taken a slightly different and possibly erroneous medical history, that then became the basis of his conclusions. A report of Dr Ash dated 28 April 2005 was also contained at T78 in which he specifically addressed Professor Goldney’s report.
41. Dr Ash had not previously sighted the applicant’s letter of resignation (Exhibit A3) and he had not appreciated that a number of reasons had been given for the applicant's resignation.
42. He agreed that it is not at all unreasonable to look at an alternative diagnosis given the applicant's failure to respond to conventional treatment, however he did not consider that there was a strong history suggestive of bipolar disorder, and he maintained his diagnosis.
43. He conceded that he had some difficulty understanding how the Navy incident could be a source of ongoing symptoms some 11 years later. However, he felt that a possible explanation of this was avoidance behaviour by the applicant. He also commented:
“ …
With anxiety, generally speaking, your autonomic nervous system is more prone to - is more responsive than you would find in other sort of population. And, you know, what happened to Mr Foley when he first became unwell was that he actually had some panic attacks. … You have to assume that he had a nervous system that was vulnerable and, in that sense, that vulnerability doesn't go away which is why anxiety tends to be a recurrent condition.
…
… the more we learn about these things, the more we realise that many of the disorders that we are talking about really have a chronic sort of fluctuating course. So once … the illness becomes evident … you don't necessarily get the sort of symptomatic improvement you would like. …”
44. Dr Ash rejected any suggestion that the applicant's anxiety disorder, depression and gastric symptoms arose from the fact of the applicant leaving his employment. He pointed to the fact that the applicant had returned to his employment after initially deciding to resign. His gastric symptoms well predated his ultimate resignation.
45. A factor in Professor Goldney's diagnosis was his perception that the applicant had suffered periods of mood elevation. Dr Ash has had clinical contact with the applicant over a long period of time and his evidence was that he has never noticed anything in the applicant’s presentation or in his history or in his behaviour to suggest that hypomania or mania was present. He also has never seen any evidence of impulsive spending behaviour by the applicant.
46. The Tribunal noted Dr Ash’s observations in his report dated 28 April 2005 at T78 as follows:
“…
I agree with Professor Goldney’s conclusion that Mr Foley presents with Alcohol Dependence. I also agree that he presents with symptoms suggestive of a Mood Disorder. The history available to me along with my ongoing clinical contact with Mr Foley suggests that his mood symptoms are more consistent with a diagnosis of a Major Depressive Episode rather than a Bipolar Mood Disorder. Professor Goldney reports episodes suggestive of elevation of mood. I specifically reviewed this with Mr Foley when I interviewed him on 22nd March 2005. I was unable to convince myself that there have been any episodes of sustained elevation of mood. The alcohol abuse and dependence are certainly consistent with the long standing Anxiety Disorder and Mr Foley’s tendency to use avoidance as a coping strategy.
…”
47. Dr Ash said that it is not uncommon to come across treatment resistant anxiety and depression. He acknowledged that he was troubled by the applicant's lack of progress towards recovery. He had observed that when he endeavoured to engage the applicant in rehabilitation programs, the applicant became anxious. When the applicant is free to come and go as he pleases he is less anxious. He pointed out that the applicant cannot be blamed for the fact that he has had adverse reactions to medication.
48. Dr Ash was of the view that an apology from the Navy or an acknowledgment that they had not dealt well with the applicant's claim of harassment may go some way towards his eventual recovery.
49. Professor Goldney was called by the MRCC to give evidence. His reports were in evidence. He first saw the applicant in December 2004 at the request of the MRCC. His expert opinion was that the applicant probably suffered from bipolar effective disorder being a condition which had not been precipitated by any incident in his Naval service. His opinion was that this psychiatric condition was a condition that he was predisposed to and which had been developing over a number of years. He expressed the opinion that the HIFR incident and its sequelae have nothing to do with the applicant's ongoing incapacity and that his incapacity was not related to his employment.
50. Professor Goldney’s evidence was that it is sometimes difficult to diagnose bipolar affective disorder when it first appears as it often begins with a depressive phase rather than a manic phase. It is sometimes only in hindsight that the diagnosis can be made.
51. His diagnosis of the applicant suffering from bipolar affective disorder was based on a number of factors:
·His failure to respond to conventional treatments for anxiety and depression.
·Periods of excessive spending by the applicant. In particular, the information he provided to Professor Goldney that he had cashed in 16 years worth of superannuation which he had spent during a period that he was living in Thailand and that he did not care what he spent during that time.
·The applicant's report to him that he sometimes experiences racing thoughts.
·Evidence of impulsivity, for example the applicant going absent without leave in October of 1996 and his decision to travel after his resignation in 1996 which decision was made on short notice.
·Notes in his service records (T4), which contained an observation that the applicant spoke at break neck speed during an office intake interview in 1984.
·The applicant's description of periods of withdrawal from friends and his loss of interest in sport.
·The fact that he was considered by Mr Anthony Weaver and other therapists to be severely depressed in October 1996 and by November 1996 he appears to have rapidly improved in his mood and went on a six-month overseas holiday.
52. Professor Goldney agreed that the fact that the drug Cipramil had provided some benefit to the applicant may give some support to the possibility that there was an anxiety and depressive condition to be dealt with. He agreed that there were symptoms of anxiety and depression present.
53. He considered that the applicant was not motivated to pursue treatments now because of the lack of success with prior treatments, and he hypothesised that prior treatments may even have worsened his condition. He was disappointed that there has been no trial of a mood stabiliser as this would be one way of verifying his diagnosis.
54. Professor Goldney was of the view that he remained quite incapacitated for work due to his psychiatric condition, but that his current condition was not related to his military employment. Professor Goldney’s reports were contained at T66 and T68.
other medical evidence
55. There was other medical evidence available for the Tribunal by way of reports contained in the applicant's service medical records and reports contained in the T documents. The Tribunal carefully considered all other medical evidence and took that evidence into account in reaching its decision.
56. The applicant's service medical records are contained in Exhibit R1. They indicate that the applicant had no reported health problems of any note prior to 1995. A service medical record of 23 November 1995 indicates that he had been experiencing three months of intermittent diarrhoea.
57. Shortly after his return to service and by March 1996 the applicant began to exhibit symptoms as described in medical reports at the time. Mr Weaver's report of 17 September 1996 (T6) recorded that from March 1996 the applicant was complaining of:
“ …
severe headaches … sleep problems, loss of motivation and episodes of physical exchange that appear to be bordering on the panic episodes.
…”
58. In August 1996 Dr Maloof diagnosed the applicant as suffering from cluster headaches. Dr Maloof referred him to a clinical psychologist, Mr Weaver. The applicant took some leave. It is then recorded that he returned from that three weeks of leave with an intense fear and almost a hatred of being at work, and he was diagnosed as having developed anxiety neurosis with panic attacks. Dr Maloof expressed the view at the time (T12/41) that two of the trigger factors in initiation of his neurosis were the HIFR incident and postings subsequent to that. She referred to the incidents as:
“a. a harassment claim on the HMAS SYDNEY
b. multiple job changes recently, …”
59. Mr Anthony Weaver considered that the applicant's substantial stress symptoms in 1996 were reactive to his experience on HMAS Sydney, plus a pattern of interrupted work placements (T5/29, T6/30).
60. Dr Peter Whetton, a psychiatrist, also saw the applicant during this period and noted that he was obsessive about receiving recognition of what had happened in the course of his employment. Dr Whetton considered that he had marked symptoms of anxiety and some panic and avoidance behaviour and the psychological concomitant of anxiety. He considered it was against a background of an unsatisfactory resolution of his harassment complaints. He considered the applicant to be genuine.
61. On 5 June 1997 it was noted in the applicant’s medical records that he had not experienced health problems since his initial medical discharge in December 1996, and he was classified as being fit for the Reserves (T21/55). It was noted that since commencing his long service leave, his psychological outlook had improved considerably. The applicant's own opinion as expressed in the notes at the time was that he would be fit to return to full-time duties were he not separating from the service.
62. In mid-1998 a further psychiatric assessment was carried out with respect to the applicant on a referral from his employer at the time. The applicant focused on the harassment in the course of his employment with the Navy and he reported at the time that he had thought that the issue had settled, but he still felt upset by the incident and its subsequent handling.
63. In July 1998 Dr Patrick Flynn, a psychiatrist, saw the applicant upon referral by the MRCC. Dr Flynn in his report contained at T29 concluded that the applicant was suffering from an “untreated major depressive disorder with prominent anxiety features and psychosomatic manifestations”. He considered that the applicant's employment with the Navy was the principal cause of his condition. At the time he commented that he considered improvement was likely, but that the long term prognosis was by no means entirely favourable and the applicant may experience incomplete recovery from his psychiatric condition.
64. In November 2003 Dr Karl Lashchuk provided a diagnosis of anxiety disorder and major depression.
discussion of the evidence
65. The Tribunal heard expert evidence from two psychiatrists, both of whom gave excellent evidence and both of whom have particular areas of specialty. Professor Goldney has analysed the available evidence and has formed the conclusion that the applicant possibly suffers from bipolar disorder which has not been previously diagnosed. He believes that with the appropriate treatment the applicant's health will improve considerably and his incapacity may cease. Professor Goldney does not attribute the onset of this condition and the ensuing incapacity from which the applicant suffers as being connected with the applicant's employment. He opines that the condition has developed quite independently from his employment, and in a sense it is a co-incidence that the incidents complained of by the applicant were happening around the time of onset of illness.
66. Professor Goldney was of the view that this is a constitutional problem and not related to the applicant's service.
67. Dr Ash is the applicant's treating clinician. He has seen him intermittently over a number of years. He conceded his frustration at the lack of improvement in the applicant's condition. He accepted that this lack of progress did justify looking at alternate diagnoses. Nevertheless after careful consideration of the alternative diagnosis, he disagreed with Professor Goldney and maintained his own diagnosis. His view was that the applicant suffers from a condition that is refractory to treatment. This is compounded by what he termed “the avoidance behaviour” of the applicant. He maintains his view that the applicant's employment contributed in a material way to the applicant’s psychiatric disorder.
68. The applicant presented in a straightforward and genuine manner. His memory was poor at times and he was rather vague about his life in Thailand. He did not embellish his case in any way. He appeared anxious at times. There was some uncertainty in his mind as to issues such as when his gastric problems first occurred This was explicable based on the effluxion of time since the Naval incidents. He could recall quite clearly the incidents that have already been outlined, that occurred in 1995 and 1996 while he was in the Navy.
69. The applicant feels strongly that the Navy have never resolved in a satisfactory fashion, his complaint of harassment against the CO of HMAS Sydney. He is of the view that he is permanently disabled and that he will not return to the workforce. He appears disinterested in pursuing further treatment that may improve his psychiatric condition. It is unlikely that he would have ease of access to those treatments while living in Thailand in any event.
70. Due to his past experience with medication and its side-effects, the applicant is negative about the possibility of his rehabilitation. His prognosis is also poor because of his alcohol dependence which has also been diagnosed by both psychiatrists, but he attributes his psychiatric disorder to incidents that occurred during the course of his Naval service. He is still angry with the Navy and blames it for all his difficulties since he resigned his employment from the Navy.
findings of fact
71. I make the following findings of fact based on all the evidence:
·Apart from a note made in the applicant's service records in 1984 when he was attending an officers’ intake interview and it was noted that he was talking “at breakneck speed”, there is nothing in his medical history prior to June 1995 that is suggestive of him suffering from any psychiatric disorder, including a mood disorder or an anxiety disorder or depression.
·There were aspects of service life that the applicant was not happy with prior to June 1995. However, he had not contemplated resigning from the Navy prior to early July 1995.
·The HIFR exercise was in itself a stressful incident. It was an inherently dangerous exercise and the applicant was positioned on the deck and had a key role to play in this exercise. The Tribunal accepts the applicant's description of the HIFR exercise as set out in paragraphs 15-21 supra.
·The CO publicly abused the applicant as a result of the applicant using an incorrect word when responding to the helicopter pilot in the course of the exercise. This abuse was quite public and was overheard by other personnel on the vessel.
·Subsequent to this incident the CO of HMAS Sydney treated the applicant unreasonably over the next two weeks. His treatment of the applicant, both at the time of the incident and in the weeks following, was public and was humiliating and distressing to the applicant. He was embarrassed and humiliated in front of his peers. He was also fearful that his career could be irretrievably affected by an adverse report from this particular CO.
·The applicant developed significant anxiety as a result of this incident.
·The applicant took leave in early July 1995 as a direct consequence of the distress and anxiety he was feeling arising from the HIFR exercise and the CO’s treatment of him both at the time of the exercise and in the weeks following. He discussed the possibility of his resignation with his father during this period of leave.
·The applicant began to exhibit symptoms of gastric upset around August 1995. His symptoms fluctuated thereafter, but were recurring, his use of alcohol increased and symptoms of depression began to manifest in the latter half of 1995.
·The applicant resigned his employment for the first time in August 1995 and one of a number of factors stated in his resignation was his treatment by the CO in June 1995.
·The applicant would not have tendered this letter of resignation at that time were it not for the June incident and his CO’s treatment of him at the time and subsequent to that incident.
·The applicant travelled around Australia in November 1995 after taking his leave as a precursor to leaving his employment. The applicant was not happy during this holiday.
·The applicant rescinded his resignation and returned to service in early 1996. At the time he felt much better and he was promised a stable posting which was land based near Perth.
·Two weeks after commencing his new posting and after finding good accommodation near to the Base, he was posted at short notice to a more difficult position in a location some 40 km away. He was required to work long hours in this new position and the travel each day added to the pressure of this position. This sudden change of posting was unexpected and the applicant was stressed by this as he had expected to remain in the prior posting for a reasonable period of time.
·He attended a seminar on harassment in June 1996 and as a result of that seminar, he lodged a formal complaint about the CO's treatment of him in June 1995.
·The applicant developed symptoms of depression, cluster headaches and panic and anxiety from soon after his return to service in 1996. His poor health led to him resigning once more in December 1996. He then travelled overseas for a number of months during which he was in reasonably good health. He continued to suffer gastric problems and underwent investigations while in the United Kingdom for those problems.
·When discharged from the Navy in July 1997 the applicant considered himself to be fit and capable of performing duties in the Naval Reserves.
·The applicant had frequent postings during his years of service. His postings were as outlined in Professor Goldney's report at T66/206.
·The applicant worked at Woodside Petroleum for 10 months after leaving the Navy. He initially worked through an employment agency and was then offered full-time work. He resigned two weeks after taking on full-time employment. At the time he was suffering from gastric problems and anxiety.
·He has not successfully completed any rehabilitation course. He has been under psychiatric care since 1998. He has on the whole not responded to conventional treatments for anxiety and depression. He has suffered unpleasant side-effects while taking medication for anxiety and depression. There was some improvement in his condition while taking the drug Cipramil, but he did not persist with that medication.
·The applicant now resides in Thailand. He shows no further interest in obtaining any improvement in his health. He is the recipient of a TPI pension.
consideration
72. The parties agree that the applicant is incapacitated for work and that this incapacity arises from a psychiatric condition. The issue is whether his ongoing incapacity continues to be linked to his employment as an officer in the Navy.
73. I must choose between two different diagnoses and then determine whether the psychiatric condition from which the applicant suffers arose out of or in the course of his employment or continues to arise out of or in the course of his employment.
74. The MRCC seeks to have a prior determination altered. The MRCC now contends that a different diagnosis is applicable and that the condition from which the applicant continues to suffer and which is the cause of his incapacity is constitutional and has no connection to his employment. The MRCC has presented their case on the basis that there was either a wrong diagnosis from the outset, or if there was initially a link between his employment and his mental injury, that link no longer exists. The applicant is now suffering from a separate condition that has gradually developed and does not relate to his employment.
75. Although an onus of proof does not apply generally in this Tribunal, it is accepted that where a change of circumstances and a variation to a prior determination is being sought, it remains for the person who would have borne the onus to satisfy the Tribunal of the facts. Gibbs J in The Commonwealth of Australia and Muratore (1978) 141 CLR 296 endorsed the following statement made in Phillips v The Commonwealth of Australia (1964) 110 CLR 347 at p 350:
“… in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee’s right to compensation under an antecedently existing determination by reason of a material change of circumstances. …”
76. In this case the MRCC is doing just that. They are purporting to terminate the applicant’s right to compensation on the basis of their proposition that he now suffers from a different and non-employment related condition. They are alleging a material change of circumstances.
77. Based on the above authorities, it is my view that it is for the MRCC to establish the facts that would justify the change in the determination.
78. I have carefully considered all the medical evidence and I am of the view that although Professor Goldney’s hypothesis is superficially attractive, there is not sufficient direct evidence to support a finding that the applicant suffers from bipolar disorder. The evidence upon which Professor Goldney relies in coming to his conclusion is in some instances hearsay, for example his reliance on the record of interview of 1984, and it is circumstantial. He draws assumptions from past events, for example the applicant's decision to holiday overseas at a relatively short notice. He refers to this as being evidence of impulsivity. It could also be a quite reasonable decision for the applicant to make, given that he had leave, money in his pocket and a mother living overseas.
79. Some of the evidence from which he draws his conclusion can be equally interpreted as being evidence of an anxiety disorder or depression, for example racing thoughts. Probably his most cogent point is the fact that the applicant appeared to have a period of being very well for a number of months while travelling overseas, and by late 1996 Mr Weaver diagnosed severe depression and mentioned the possibility of a severe mood disorder. This was never followed through as the applicant resigned shortly thereafter.
80. The applicant's failure to recover from his illness remains the most puzzling aspect of this matter, particularly as both doctors agree that he is genuine in his presentation and suffers from a psychiatric disorder.
81. Overall it has been very evenly balanced case with two very good psychiatrists providing excellent expert evidence.
82. I am mindful of the dictum in Re Ileris and Comcare [1999] AATA 647:
“ … the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision. The Tribunal may have regard to evidence that would not be admissible according to the principles and rules stated in the Evidence Act, but the policies which underpin those principles and rules should be borne in mind when a decision is made on the admissibility or weight of a piece of evidence. Natural justice requires that a party be given an opportunity to deal with any material upon which the Tribunal proposes to rely. This obligation may apply, in particular, to hearsay evidence. The extent to which a party cannot adequately test hearsay evidence will affect its weight if admitted, and, in some cases, may preclude its admissibility.”
83. Professor Goldney's relies on his reinterpretation of existing evidence. Professor Goldney himself concedes that he cannot be certain of his diagnosis and certainty would only come from a successful treatment with a medication for a mood disorder. As already stated, a number of matters upon which Professor Goldney relies, namely the applicant’s performance at an interview in 1984 and his supposed impulsivity and excessive spending, could have other explanations. The allegation of excessive spending was not put to the applicant.
84. After considering all the evidence, I prefer the evidence of Dr Ash to Professor Goldney. I am satisfied, on the balance of probabilities, that the applicant's current diagnosis is that of anxiety disorder and major depressive disorder with features of avoidance behaviour, combined with likely alcohol dependence.
85. I must go on to decide whether the applicant's continuing incapacity from his psychiatric illness arises out of his employment. The MRCC previously accepted liability for anxiety and depression arising as a result of the applicant's employment. Does his continuing incapacity arise out of or in the course of his employment?
86. The applicant’s condition is now a long standing chronic condition. It is a disease or an ailment from which the applicant suffers. The test for me to apply is whether his employment continues to contribute to that ailment in a material degree. There has been previous discussion as to what is meant by the concept of “contributed to in a material degree”.
87. In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 in discussing the use of the word “material” for the purposes of the Compensation (Commonwealth Government Employees) Act 1971, the Full Federal Court said at 328:
“ … the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
88. The approach in Treloar has been expressly adopted in subsequent cases under the SRC Act.
89. In Re Hardman and Comcare [2006] AATA 468, Deputy President Jarvis provides an analysis of where the law appears to currently stand with respect to the interpretation of the word “material” as contained in the definition of “disease” in the SRC Act. In that case he was referring to the Seafarers Rehabilitation and Compensation Act 1992. However, the same definition of disease is contained in the SRC Act.
90. He alludes to the fact that when the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) was repealed and replaced by the SRC Act, the corresponding provision in the SRC Act required that the employment contributes “in a material degree” to the contraction of the disease.
91. At paragraph 46 of his decision, he comments:
“46. However, in Comcare v Canute [2005] FCAFC 262 French and Stone JJ drew attention to the inclusion of the words “in a material degree” in the 1988 Act and to the reference to those words in the second reading speech of the Minister for Social Security when the Bill for that Act was read for a second time in the House of Representatives on 27 April 1988. They quoted an extract from that speech where the Minister referred to the requirement in the 1971 Act for an employee to establish only that the employment was a contributing factor to the contraction of the disease, and said that this had frequently resulted in the Commonwealth being liable to pay compensation for diseases that had “little, if any connection with employment”. The extract continued:
‘This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.’
Their Honours also referred to Treloar (supra) and Suters (supra), and went on to say at [68] that the changes brought about by the enactment of the 1988 Act:
‘ … were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to (sic) said about this issue.’”
92. Deputy President Jarvis goes on to point out that the dicta in Comcare v Canute [2005] FCAFC 262 suggests that there is a “potentially higher evaluation threshold” than there was under the cases decided under the 1971 Act.
93. I note that the second reading speech refers to a “close connection” between the employment and the injury or disease complained of. Although the cases have not yet endorsed such a substantial connection being required, I am satisfied, on the balance of probabilities, that there remains a significant connection in this case between the applicant’s disease and the incidents that occurred in the course of his employment in 1995 and 1996.
94. The applicant’s underlying biological vulnerability and personality issues may well be operating to prolong his incapacity, but the incapacity continues to be employment related.
95. The nature of his illness is such that he self medicates with alcohol and it appears he is now also alcohol dependent. His anxiety and avoidance behaviour which arise out of his condition contribute to him being disinterested in pursuing medical help. The fact that features of the illness prolong the illness in that he suffers from an apathy and a disinterest in getting better does not mean that liability in the MRCC ceases.
96. Dr Eriksen has written a dissenting decision as set out below. As I am the presiding member of this Tribunal then pursuant to s 42(1) of the Administrative Appeals Tribunal Act 1975, my decision prevails.
97. In the circumstances I set aside the decision under review and find that the incidents that occurred in the last two years of the applicant’s military service, as set out in this decision, continue to contribute in a material way to his ongoing incapacity.
dr eriksen
98. I agree the facts and outline of evidence as set out in Senior Member Hastwell’s decision. I agree with Senior Member Hastwell in relation to the high calibre of medical evidence of Dr Ash and Professor Goldney, and the difficulty in establishing a psychiatric diagnosis on the clinical and current material. After careful consideration, I prefer the diagnosis and evidence of Professor Goldney to Dr Ash.
99. The potential ramification of this is that prescription mood stabiliser medication has significant potential therapeutic benefits.
100. I disagree with the decision of Senior Member Hastwell and I am not satisfied that the applicant’s current psychiatric condition continues to arise out of his employment. A trial of mood stabiliser medication for bipolar disorder is appropriate. In the circumstances I would affirm the decision under review.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E T Eriksen (Member)
Signed: ............J Coulthard............................................
AssociateDates of Hearing 29/30/31 August 2006
Date of Decision 22 December 2006
Counsel for the Applicant Mr S Cole
Solicitor for the Applicant Johnston Withers
Counsel for the Respondent Mr A Martin
Solicitor for the Respondent Phillips Fox
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