Glen Palmer and Comcare
[2014] AATA 241
[2014] AATA 241
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0894
Re
Glen Palmer
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 24 April 2014 Place Brisbane The decisions under review are affirmed.
..................................[Sgd]......................................
Deputy President PE Hack SC
CATCHWORDS
WORKERS' COMPENSATION – Australian Broadcasting Corporation employee - Liability not accepted for major depressive disorder or permanent impairment – Whether injury was contributed to, to a significant degree, by employment – Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 24.
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment (Second Edition)
REASONS FOR DECISION
Deputy President PE Hack SC
24 April 2014
Introduction
Mr Glen Palmer is a sports journalist. He worked for many years for a commercial television station but in 2007 commenced employment with the Australian Broadcasting Corporation (ABC) in Brisbane as a "bi-media sports reporter" for South East Queensland. The term "bi-media" meant that he prepared and presented stories for both television and radio. In early 2012 Mr Palmer experienced an adjustment disorder. He now suffers from a major depressive disorder. He attributes those conditions to his employment with the ABC. In July 2012 he made a claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), for those conditions.
Comcare rejected his claim. It was not satisfied that the condition was a consequence of his employment. It pointed to other issues in his personal life which it regarded as causing the condition.
Mr Palmer seeks a review of Comcare’s decisions[1] to refuse him compensation.
[1]There are two decisions, detailed in paragraph 21 below.
The legislation
No detailed examination of the Act is called for. By virtue of s 14 of the Act, Comcare is liable to pay compensation, in accordance with the Act, in respect of an "injury" suffered by an employee, if the injury results in death, incapacity for work, or impairment. The term "injury" is defined in s 5A of the Act in a way that encompasses "a disease suffered by an employee" as well as an injury, properly so called. It is not necessary to consider the latter aspect of the definition; the parties are agreed that Mr Palmer's condition falls to be considered by reference to the definition of disease and not as an injury, properly so called. The term "disease" is defined in s 5B of the Act. That section provides:
(1) In this Act:
“disease” means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
Mr Palmer's case includes the contention that his condition has resulted in a permanent impairment. The term "impairment" is defined in s 4 of the Act to mean,
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
In the same section "permanent" is given the meaning "likely to continue indefinitely".
Finally, s 24 of the Act requires that the degree of permanent impairment be assessed by reference to the "approved Guide", that is, Comcare’s Guide to the Assessment of the Degree of Permanent Impairment, that the degree of permanent impairment be expressed as a percentage and that no compensation for permanent impairment is payable if the degree of permanent impairment is less than 10%.
Factual background
The reliability of some of Mr Palmer’s evidence was put in issue by Comcare. As will appear, I regard the criticism as valid. I will start with some matters which appear not to be controversial and which I have taken from the contemporaneous documents.
Mr Palmer commenced work with the ABC in early May 2007[2] (not April 2007 as he thought). He was based in Brisbane but lived on the Gold Coast and travelled to Brisbane from his home and returned on each working day. Travel occupied up to three hours of each day. It was in the nature of his role as a sports’ reporter that he was often required to work on both Saturday and Sunday. When that occurred he had two consecutive weekdays off. When Mr Palmer commenced with the ABC he was married and had three children, one then aged five years and twins then aged three years.
[2]Exhibit 1, pages 96.
Mr Palmer gave evidence of workplace stress in his employment almost from its onset. Whether that was so is very much an issue and I will examine that aspect in due course. There are though contemporaneous records of his consultations with his general practitioners, Dr Tim Hardy initially, and later Dr Mal Shinn.[3] Comcare points out that those records make no reference to any complaint of workplace stress or difficulty. There is mention, on some occasions, of chronic tension headaches but the doctor's notes attribute those headaches to cervical disc degeneration. That Mr Palmer suffered from that condition is confirmed by the report of Dr A P Poulgrain, a neurological surgeon, dated 18 June 2009.[4] I should say immediately that I do not accept Mr Palmer's claim that the headaches are unrelated to his cervical spine condition. He appears to have drawn the wrong conclusion from Dr Poulgrain’s opinion that surgical intervention was not warranted.
[3]Exhibit 1, pages 183 – 213.
[4]Exhibit 5. For some reason only one page of the report is available.
In 2010 and 2011 Mr Palmer, accompanied on some occasions by his wife, consulted a clinical psychologist, Dr Ian Platt. Dr Platt’s notes of six consultations between April 2010 and February 2011[5] make very few references to Mr Palmer experiencing stress or difficulty at work. There is reference to Mr Palmer feeling that his work had "become harder", that travelling was "very tiring" and that his wife did not understand the pressure he was under at work but, by and large, the notes of the consultations record difficulties in matrimonial or family relationships. The notes are quite at odds with Mr Palmer's assertion that Dr Platt treated him for "work related stress".[6]
[5]Exhibit 6.
[6]Exhibit 2, paragraph 27.
In November 2011 Mr Palmer's wife told him that she regarded the marriage as being over.[7] Mr Palmer worked at the ABC up until 16 December 2011 and then went on annual leave, planned to be of five weeks duration. In mid-January 2012, and whilst Mr Palmer was still on annual leave, his wife left the matrimonial home with the three children. Mr Palmer saw Dr Shinn on 16 January 2012.[8] The notes of that visit make considerable, and understandable, reference to Mr Palmer's matrimonial difficulties but scant reference to him having experienced problems at his work. The only reference seems to be a complaint that his work was generally "full on" and that he had to meet deadlines. The note contains the following reference:
One of the factors that are adding to his stress is the fact that he is going to have to go back to work next Monday. He feels he won't be able to cope in front of the television and meet deadlines et cetera.
[7]Exhibit 8, paragraph 9.
[8]Exhibit 1, page 197.
Mr Palmer was referred to a psychologist for counselling. The report of that psychologist to the referring doctor included the following:[9]
… [Mr Palmer] presented as sad and low in mood. His marriage had recently ended and although it had been tense for some time, he was having difficulty adjusting.… Other issues for Glen include as [sic] highly stressful work environment and his need to gain better control of his anger.
Thereafter, Mr Palmer saw another psychologist, Mr Donn Tantengco. His report of 15 February 2012[10] notes,
Thank you for referring [Mr Palmer] via [Mental Health] Care Plan dated 1 February 2012 for the presenting issues of Adjustment [Disorder] with Depression & Anxiety in the context of marital breakdown.…
…
[Mr Palmer] reported that his wife had decided to separate from him in mid-January this year after being married for 10 years. Glen had noticed difficulties and conflict in their relationship in the past and stated these were due to factors such as Glen's long working hours, the demands of parenting on both him and his wife … as well as poor communication between them.
[9]Exhibit 1, page 8.
[10]Exhibit 1, page 13.
Mr Palmer saw Mr Tantengco on two occasions in February 2012. Again, the clinical notes make scant reference to work pressures. There is reference to Mr Palmer working 12 hour days however his travelling time between the Gold Coast and Brisbane took up some three hours of that time.
Mr Palmer returned to work at the ABC (after taking a further four weeks leave) on 18 February 2012. After being at work for another week he again went on leave. He saw Dr Shinn on 6 March 2012. Thereafter, he sent an e-mail[11] to Mr Bernard Bowen, the State Editor at the time, and Mr Palmer's supervisor. The e-mail reads, in part:
I have been to my Doctor today and he was quite concerned.
He believes I have either had or am going through a nervous breakdown as a result of losing my family.
He has referred me to a psychiatrist to begin immediate treatment.…
…
Dr Mal Shin [sic] believes that I am currently so unstable, that I should have at least six weeks off taking me through to the 16th of April.
Again, it is remarkable that the e-mail makes no reference to stress or difficulty at work in circumstances where one might reasonably expect an employee, badly affected by work stress or difficulties, to have made reference to those difficulties. Mr Palmer explained that he had made a conscious choice not to mention work issues because he did not want Mr Bowen to know that he would be making a claim for compensation. I found that explanation quite unconvincing.
[11]Exhibit 1, page 44.
Mr Palmer commenced seeing Dr Jeffrey Adams, a consultant psychiatrist, on 7 March 2012 and saw him on two further occasions in that month. Dr Adams' clinical notes for that period make no reference to stress or difficulties at work. Dr Adams gave evidence that he had been made aware by Mr Palmer of issues with his work but that the matrimonial difficulties had assumed the greatest prominence because of their immediacy. Dr Adams’ report of 13 April 2012[12] refers only to matrimonial difficulties; no reference is made to difficulties in the workplace.
[12]Exhibit 1, pages 19 – 20.
Mr Palmer next returned to work in early April 2012 however after only a few days had to take time off for an unrelated medical issue. He saw Dr Shinn on 30 April 2012. Dr Shinn’s clinical notes recorded, amongst other things,[13]
Glen feels he has settled with his depression and anxiety except for the panic reactions. He has got over the sudden loss of his wife. He misses the children [but] realises he has been too ill to really care for them properly. He hasn't returned to see a psychiatrist as yet. The main concern is his panic episodes which he cannot settle.… Will wait and see how he copes with his panic.
[13]Exhibit 1, page 209.
On 8 June 2012 (Friday) Mr Palmer had a confrontation with a part-time producer about his desire to have the next two days off. His statement describes the incident in some detail and then continues:
Following the incident my last effort to return to the "house of pain" had disintegrated. Knowing that there are no jobs in the industry anymore and with three children to support on top of a mortgage, why would I give up a 90 to 100 thousand dollars per annum in a depressed industry? The reason was simple and supported by my ex-wife, my children, my parents, friends and work colleagues. I made the decision to resign. I have not regretted that decision for a moment despite a difficult year both financially and with my mental health.
Whilst the matter was not taken up with Mr Palmer in cross-examination, it appears that he did not then resign. His resignation was tendered many months later in April 2013. Moreover he continued to work during June 2012. His last day at work was on 1 July 2012[14].
[14]Exhibit 4, page 79.
Mr Palmer saw Dr Shinn on various occasions during June 2012 after the incident of 8 June 2012. The clinical notes of those visits put the matter in a somewhat different light. Mr Palmer saw Dr Shinn on 15 June 2012. No mention is made in the notes of any confrontation. They record,[15]
Feeling a little better in himself. He is more focused. Realises that the stress of work and being understaffed has caused a lot of his problems: headaches, adjustment disorder with anxiety and including his marriage difficulties.… When he can relax he doesn't have headaches. When he doesn't work he is okay without headaches and stress. … would like to open a workers compensation claim.
On a subsequent visit on 22 June 2012 Dr Shinn recorded that Mr Palmer had "noticed a marked improvement".[16] The notes record, as well:
From his history is obvious that nearly from the beginning of his job and the work stress and lack of support for his sports report caused high levels of anxiety.
Then on 27 June 2012 Dr Shinn recorded:
Discussion about work stress on the factors that led to Glen's adjustment disorder anxiety depression. Apparently a relatively long history that came to a head on 16 January 2012. Needs to make out workers compensation claim due to the factors of essentially poor support. And badgering
[15]Exhibit 1, page 210.
[16]Exhibit 1, page 211.
Mr Palmer lodged his claim for compensation in July 2012 for a condition he described as "stress & anxiety caused by work".[17] He recorded that he had first noticed that he was ill on 30 April 2007. It transpired in the course of his oral evidence that that date was incorrect (it was prior to his employment) and that he had first experienced symptoms, he said, approximately 4 weeks after commencing work with the ABC. In answer to a question on the claim form about the event that caused the illness or injury Mr Palmer recorded:[18]
Change in original job description – increased workload, no weekends rostered off leading to my wife's departure with my kids.
What actually injured him or made him ill was, he said:
Work strain, harassment, badgering, lies and innuendo. No backup at work.
[17]Exhibit 1, page 28.
[18]Exhibit 1, page 30.
Mr Palmer returned to see Dr Adams on 12 July 2012 and consulted him on two further occasions in that month. He appears to have made considerable complaint of events in his workplace causing him stress. Mr Palmer saw Dr Shinn again on 24 July 2012. On this occasion he made mention of the incident of 8 June 2012 (although he was unsure as to the date).
On 29 August 2012 Comcare determined that it was not liable to pay compensation to Mr Palmer. Then, on 8 November 2012, solicitors acting for him lodged a claim for compensation for permanent impairment. That claim was rejected on 22 November 2012. On 9 January 2013 Comcare affirmed on reconsideration its earlier decisions of 29 August 2012 and 22 November 2012. Mr Palmer lodged his application to review Comcare’s reviewable decisions on 26 February 2013.
Mr Palmer’s evidence
Mr Palmer makes a number of complaints about his working conditions. Unfortunately the objective evidence does not bear out those complaints. His evidence was that he first experienced a reaction to workplace stress within about four weeks of commencing with the ABC. Within three months, he says, he started to have panic attacks and a constant migraine headache.[19] These symptoms got worse over time. There is no support for these complaints in the contemporaneous documents, in particular the clinical notes of his general practitioner.
[19]Exhibit 2, paragraph 24.
The first reference in those notes to Mr Palmer experiencing panic attacks comes in a note of a consultation on 16 January 2012. It records, relevantly:
Developed panic attacks where he cannot catch his breath. He wonders whether [a named prescription medicine] is causing some of the problems as he wakes when he takes it trying to get his breath. This causes him to become quite anxious and panicky. This scared him awake and not the other control [sic- ?being able to control] the panic. Went to John Flynn Hospital but settled near the hospital.
In an e-mail to Comcare in July 2012[20] Mr Palmer referred to the onset of "panic attacks" in 2011 yet Mr Tantengco, who saw Mr Palmer on 9 February 2012, noted this history:[21]
Glen stated that he had been experiencing panic attacks (tachycardia, shortness of breath) in the four (4) weeks prior to his appointment following the announcement by his wife… that she was leaving the relationship.
[20]Exhibit 1, page 49.
[21]Exhibit 1, page 175.
In his oral evidence Mr Palmer referred to an occasion when his wife had driven him to the hospital because he was experiencing a panic attack which abated prior to arrival at the hospital. His wife did not give evidence about that occasion. I am not satisfied that Mr Palmer suffered any panic attack prior to his wife leaving. I consider that the history recorded by Mr Tantengco is more likely to reflect an accurate account of what occurred.
There is some reference in the clinical notes to headaches but they certainly do not bear out the complaint that from 2007 Mr Palmer suffered from a constant migraine headache. They demonstrate a complaint of a chronic tension headache on 15 October 2010 said to be secondary to a degenerative neck condition.[22] It is apparent from exhibit 4, which records Mr Palmer's work history, that he had last worked on 12 October 2010, three days prior to his visit to the doctor. There is next reference on 8 July 2011 when Mr Palmer reported having experienced headaches on waking in the morning on the preceding four days.[23] Another complaint of a "tension type headache" was made on a visit on 26 August 2011.[24] Then, on 13 September 2011, the notes record the headaches as being most severe on days when Mr Palmer was working in front of the computer however the headaches are described as relating to degeneration in his neck.[25] Further tension headaches were noted on 7 October 2011,[26] 18 October 2011[27] and 5 December 2011[28] although on the last occasion Dr Hardy noted that Mr Palmer may have "stirred things up" by playing cricket.
[22]Exhibit 1, page 184.
[23]Exhibit 1, page 190.
[24]Exhibit 1, page 192.
[25]Exhibit 1, page 193.
[26]Exhibit 1, page 194.
[27]Exhibit 1, page 195.
[28]Exhibit 1, page 196.
What is noticeably absent from these clinical notes is any reference to stress or other work issues causing the headaches. On the contrary, what is consistently, but not invariably, recorded is that the headaches are attributable to Mr Palmer's degenerative neck complaint.
Complaints of stress and the like are also absent from the two performance agreements signed by Mr Palmer in January 2009 and March 2011. Again, it might be thought that if Mr Palmer’s working conditions had been as he now says some hint of that might emerge from those documents. On the contrary, they suggest an employee performing well, suggesting areas where he might improve his performance and suggesting ways in which the job could be improved.[29]
[29]Exhibit 1, pages 105 & 110.
It is of lesser significance but it is not the case that Mr Palmer, as he asserted in his claim form, had "no weekends rostered off". Exhibit 12, prepared by his solicitors, shows that in the second half of 2011 he worked every weekend from mid-June to mid-September of that year but then had a majority of weekends rostered off from the weekend of 24/25 September 2011 until going on leave on 19 December 2011. Moreover, in his discussions with Dr Shinn on 16 January 2012, he did not suggest, as he did in his claim form, that his wife left because he was unable to have weekends off. He attributed her departure to a cause entirely unrelated to his work and one for which he was solely responsible.[30]
[30]Exhibit 1, page 197.
The absence of any contemporaneous complaint of the type now made by Mr Palmer leaves me well short of being satisfied that he is a reliable historian. I find it inconceivable that he could experience what he now complains of without having made any complaint to his general practitioner at the time or to his employer in his periodic appraisal or, for that matter, in his e-mail to his supervisor in March 2012. What emerges quite clearly from the material is that there were no real complaints of work stress or pressure until, at the earliest, June 2012 at which time Mr Palmer had determined to make a claim for compensation. Dr Shinn’s clinical notes from June 2012 strongly suggest that, by then, Mr Palmer had managed to persuade himself that all that ailed him was attributable to workplace factors. While I accept that Mr Palmer may genuinely believe that to be the case I am not satisfied that his evidence is reliable. The objective evidence is to the contrary.
The medical evidence
I had the benefit of hearing evidence from Dr Adams, who treated Mr Palmer in March and July 2012, from Dr Eric De Leacy, who saw Mr Palmer, at the request of his solicitors, for a medico legal report on 20 June 2013 and from Dr Benjamin Duke, who saw Mr Palmer at the request of Comcare’s solicitors on 7 August 2013. There seems to be agreement that Mr Palmer initially suffered from a severe adjustment disorder which has evolved into a major depressive disorder.[31]
[31]Dr Adams described the evolved condition as major depressive episode however nothing turns on the slight difference in description.
It is apparent that Dr Adams was not told, initially, of any matters of particular concern in Mr Palmer's employment. His report refers to,[32]
… what later turned out to be a more chronic story involving heavy work pressure was not discussed at first interview.
It is evident from Dr Adams' medical notes that his March 2012 consultations with Mr Palmer were primarily concerned with the matrimonial relationship and that the employment context was mentioned only briefly. But that changed in the July 2012 consultations once Mr Palmer had lodged his compensation claim. It is equally evident that Dr Adams has, as he must, accepted without question the history of work stress and difficulties now given by Mr Palmer. But I do not accept that there were stressors and difficulties and thus cannot accept Dr Adams' opinion about the cause of Mr Palmer's condition.
[32]Exhibit 1, page 71.
The same is true of the views of Dr De Leacy. Those views are informed by a conclusion that Mr Palmer had been "working under very difficult conditions".[33] That conclusion, as I have sought to explain, is so at odds with the contemporaneous records that I am unable to accept it. It follows that I am unable to accept Dr De Leacy's views. I should add that when, in cross-examination, counsel for Comcare put to Dr De Leacy a history more akin to that which I have found to be the case, he accepted that it was likely that work was not the cause of Mr Palmer's problems.
[33]Exhibit 7, page 6.
Dr Duke, even on the basis of acceptance of Mr Palmer's account of events in the workplace, expressed his opinion in this way:[34]
it is my opinion that the main causative factor in Mr Palmer's development of what was at that stage an adjustment disorder with depression and anxiety was the separation from his wife in January 2012. I do not believe the workplace stressors he has identified were a significant contributing factor to his mental health presentation at that time.
That opinion, I must say, more closely reflects what seems to me to be logical. The first presentation of symptoms came immediately after Mr Palmer's wife left the matrimonial home with the children. This occurred at a time when Mr Palmer had been on leave for at least four weeks. Even on his own case (which I do not accept in any event) he had not been exposed to any of the workplace pressures of which he complains for a considerable period of time.
[34]Exhibit 10, page 12.
In the result, I accept, as Dr Duke says, that workplace stressors were not a significant contributing factor to Mr Palmer's presentation in the first half of 2012. The likelihood was that any stress in the workplace was quite minor, all the more so when it was compared with the stress arising from the matrimonial discord.
Dr Duke considered separately the question of Mr Palmer's response to the confrontation of 8 June 2012. He concluded that the argument,
… was a significant factor in the aggravation of his symptoms that led to him reinitiating contact with his treating psychiatrist and ceasing to attend work.
But when Dr Duke was taken to the clinical notes from Mr Palmer's visits to Dr Shinn in June 2012 following the altercation and noted that, contrary to the history given by Mr Palmer, he did return to work as rostered on 11 June 2012, he considered that the 8 June 2012 argument was of less significance. Those notes, together with Mr Palmer's attendance at work during June 2012, rather showed, he thought, that Mr Palmer was functioning at a reasonable level.
There is then no evidence that I regard as being reliable that suggests that Mr Palmer’s condition, or any aggravation of an underlying condition, was contributed to, to a significant degree, by his employment with the ABC. It follows that the decisions under review ought be affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC .................................[Sgd].......................................
Associate
Dated 24 April 2014
Dates of hearing 2 & 3 April 2014 Counsel for the Applicant Mr M Black Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Ms E Ford Solicitors for the Respondent Australian Government Solicitor
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