Gould and Comcare - [2002] AATA 592

DECISION AND REASONS FOR DECISION [2002] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/366

GENERAL   ADMINISTRATIVE DIVISION )          No A2000/159
           Re      ROSS GOULD
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs J.R. Dwyer, Senior Member Dr M. Miller, Member

Date19 July 2002
PlaceCanberra

Decision      1. In matter A1999/366 the decision under review is varied to provide: (i) that from 8 April 1988 to 30 March 1989 Mr Gould continued to suffer from an employment related aggravation of his depressive condition which resulted in incapacity for work; and (ii) that Mr Gould is entitled to compensation for incapacity under s 20 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") in respect of that period. 2. The Tribunal orders pursuant to s 67(8) of the Act that Mr Gould's costs in respect of matter A1999/366 be paid by the respondent. 3. In matter A2000/159 the decision under review is affirmed. 4. The Tribunal reserves liberty to the parties to apply if there is any difficulty in implementing this decision.
  (Sgd) Joan Dwyer
  Senior Member
COMPENSATION – accepted condition of aggravation of depressive condition – whether it resulted in incapacity for work after invalidity retirement – decision varied – whether compensable condition resulted in permanent impairment – decision affirmed
PRACTICE AND PROCEDURE – need for Comcare to ensure that T documents contain all documents relevant to the review – employer's file under Comcare's control for purpose of making a correct decision - all relevant material from employer's file should be in the T documents and not produced for first time at hearing
Administrative Appeals Tribunal Act 1975 s 37
Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(a), 4(9), 20, 24, 27 and 67(8)

REASONS FOR DECISION

19 July 2002 Mrs J.R. Dwyer, Senior Member
Dr M. Miller, Member

This is an application for review of two reviewable decisions made under the Safety, Rehabilitation and Compensation Act1988 ("the Act").
The first reviewable decision was made on 7 November 1991 (T37). It affirmed a primary determination made 21 June 1990 (T25) which had found that Mr Gould was entitled to compensation in respect of an aggravation of a depressive illness, but that his entitlement ceased on and from 8 April 1988 being a date shortly before he was retired on the ground of invalidity from his work as a librarian with the National Gallery. There were considerable delays and problems in the process of Mr Gould seeking review of that reviewable decision. After first contesting Mr Gould's right to seek review of the decision of 7 November 1991 out of time, the respondent consented to an extension of time in which to make the current application for review. That matter is A1999/366.
The second matter (A2000/159) is an application for review of a reviewable decision (T8) made on 20 April 2000 which affirmed a primary determination (T3) refusing Mr Gould's claim for compensation for permanent impairment in respect of his depressive illness.
Mr A. Anforth, of Counsel, appeared for Mr Gould. Mr Gould gave evidence. His former wife, Mrs Penny Gould also gave evidence on his behalf, as did his treating psychiatrist, Dr D. Lawrence. Mr D. O'Donovan, of Counsel, appeared for Comcare. He called Dr J. Saboisky, Mr Gould's former treating psychiatrist.
The Tribunal had before it the documents (the "T documents") in both matters lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 ("the AAT Act") and the further exhibits tendered during the hearing.
One matter which caused the Tribunal some concern was that a number of relevant documents which had been in the possession of the respondent were not produced until the hearing had commenced. When the Tribunal asked why those documents were not included in the T documents, it was told by Mr O'Donovan that they had been in the file of Mr Gould's former employer, the National Gallery, and not in Comcare's possession at the time the T documents were created. The Tribunal expects that an employer's file concerning an employee would be obtained by Comcare before the T documents are prepared. It must be under Comcare's control for the purpose of making a correct decision. In cases where that has not occurred we consider that further T documents should be prepared and delivered to the applicant's representative and to the Tribunal as soon as possible. Such documents should not appear for the first time at a hearing. Section 37(1) of the AAT Act requires that all documents relevant to the review and in Comcare's possession or control be made available to an applicant within 28 days of the lodging of an application. It provides:
37 Lodging of material documents with Tribunal
(1AAA)This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
(1)Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)every other document or part of a document that is in the person's possession or under the person's control and is considered by the person to be relevant to the review of the decision by the Tribunal.

BACKGROUND HISTORY

Mr Gould commenced work as a librarian with the Australian National Gallery ("ANG") on 7 September 1981 (p.1 of the applicant's Statement of Facts and Contentions). Immediately prior to taking up that position he had worked as a librarian at the Australian National University for seven and a half years (A1). Within approximately 12 months of Mr Gould taking up his position at the ANG, a new Head Cataloguer started work at the ANG library. Mr Gould also worked in the cataloguing area. After a time, difficulties developed in the relationship Mr Gould had with the Head Cataloguer. There were complaints about the standard of his work and steps were taken to commence disciplinary proceedings in respect of Mr Gould's allegedly inadequate work performance. On 27 November 1984, Mr Carroll the Administrative Services Manager at the ANG chaired a meeting with the Principal Librarian, the Head Cataloguer and Mr Gould to discuss a report on Mr Gould's work performance (R7). It was decided that his performance would have to improve and that if it did an attempt would be made to find him alternative work.
Mr Carroll arranged a secondment for three months to the National Film and Sound Archive ("NFSA") from 19 March 1985. That secondment was extended to 31 July 1985. Mr Gould was also referred to a Commonwealth Medical Officer ("CMO") on 25 July 1985 (R9). Mr Gould had also been having personal difficulties in the years 1982 onwards.
The CMO set out the following history (A4):
Poor work performance at A.N.G. related to depressive condition over a period of years. Depressive illness, difficulties coping with management style in turn adversely affected work. Moved to NFSA with gradual improvement in work performance & in depressive condition.
Has not sought medical treatment but vocational counselling has helped.
Prognosis
Good however depressive illness could recur.
I consider that the examinee:
is unfit for continued employment in the nature of the duties of the position presently occupied and should be re-deployed on duties of the following nature: (description of type of work suitable to be undertaken by the examinee)
Redeploy to position at NFSA presently held.
Permanently
Mr Gould said he worked happily at the NFSA and while he was there his mood improved considerably. The report given by his supervisor at the NFSA supported Mr Gould's memory of that placement. Ms Labrum wrote a detailed report on 22 July 1985 (A13). In that report she recognised that Mr Gould had problems with his productivity and with fluctuating moods. She said he had relaxed in his time with NFSA and some of his work had been very helpful. Ms Labrum noted that Mr Gould was most responsive when given a significant amount of responsibility. She felt he was better suited to working with a small group of other staff than in crowded conditions. Ms Labrum concluded:
In summary, whilst the full 4 month period of Ross's secondment is marked by distinct highs and lows in his work performance, I feel that he is ending on a positive note. The past 8 weeks in particular have resulted in his consolidating his newly gained experience and being very helpful. His reliability has increased and the quality of his work is now more predictable. He has always taken the 'slow and steady' approach and therefore doesn't seem to be suited to regular, urgent pressures, but rather to ongoing tasks which don't involve working too closely with other staff members.
Unfortunately, in spite of a recommendation by the CMO that Mr Gould remain in that position, he was told by the ANG personnel staff that it was not possible to arrange a transfer for him as he was employed under the National Gallery Act and not the Public Service Act. During the hearing some doubt was raised as to whether that was correct advice, but R9 confirms that was the advice given to Mr Gould. He was told he could not stay on at the NFSA.
Document R9, which was prepared by the Manager Administrative Services at the ANG on 23 January 1987, indicates that Mr Gould took leave from 1 August 1985 to 6 September 1985 while the Personnel Manager looked for a suitable position for him. On 9 September 1985 he returned to the ANG but as he could not work in the library he was placed in the Publications Section. The Personnel Manager decided that Mr Gould would be declared eligible for redeployment under s 9 of the Commonwealth Employees (Redeployment and Retirement) Act 1979. She told Mr Gould (R9 p3):
As there are no other Librarian Class 1 positions within the Gallery and outside the Library, the Personnel Manager explained it was necessary to declare him eligible for redeployment under Section 9 of the CE(RR) Act and that every effort would be made to redeploy him to another position elsewhere in the Gallery. The Personnel Manager also advised him that as no other classification had salary points that matched those of a Librarian Class 1, it was very likely that he would eventually be redeployed to a position of lower classification. Ross expressed considerable concern about this prospect and indicated he would appeal against any such proposal.
Mr Gould was formally advised by letter dated 20 November 1985 of the proposed redeployment action. He objected by letter and arranged for his psychiatrist Dr Saboisky to send a letter to the Acting Personnel Manager at the ANG. The letter, dated 17 December 1985 (A6), read in part as follows:
Without wishing to go into great detail I write to let you know that he did indeed suffer from a depressive illness which was caused by a combination of the death of his father and also the perceived mistreatment he received at the hands of his supervisor while working at the Australian National Gallery Library.
I note that removal from that perceived stressful environment produced amelioration of his symptoms and there is no doubt in my mind that he has grounds for believing that his treatment was a major contributing factor.
I understand that because of administrative factors it has been decided to place him in another position in the Australian National Gallery which would effectively demote him. From my point of view there is a significant chance that this will eventually lead to a further depressive decompensation and I would have felt that it was in the long-term interest of Mr Gould and also the Commonwealth to find an alternative to this given that his performance is of a satisfactory standard outside of his perceived stressful environment.
From April 1986 Mr Gould was temporarily redeployed in the International Prints and Illustrated Books Section of the ANG. The redeployment was extremely successful. Meanwhile Mr Gould applied for but did not obtain advertised librarian positions in the International Prints and Illustrated Books Section of the ANG and in another area of the ANG. The positions were won by people who Mr Gould acknowledged were better qualified than he was.
The report of the Administrative Services Manager (R9) set out, at paragraphs 20, 21 and 22, the further actions taken:
20.In November 1986 following some discussion with the Senior Curator of International Prints and Illustrated Books, it was agreed that Ross' redeployment in the department could continue until he had been there for a total of 12 months (ie until April 1987). This arrangement was confirmed in a memorandum to Ross on 1.12.86. The memorandum also advised:
(1)that Ross should continue his efforts to secure a position at or above his substantive level; and
(2)that if at the end of this period of redeployment he had not been successful in securing a permanent position, it would be necessary to implement the next stage in the CE(RR) process.
21.Following an examination of the Gallery's staffing records in January 1987 a future vacancy was identified in the Photographic Services Section at the Clerical Administrative Class 4 level (the present occupant retires cob 27.2.87).
Having considered the Principles for Redeployment (refer attachment 4 for details of reasons for decision) the Gallery proposes to redeploy Ross to this position with effect from 23.2.87 at the latest (ie allowing for a minimum of one week handover). Initially this placement will be for a trial period of 3 months, however, if at the end of this period (ie 29.5.87) Ross is considered "suitable" for the position, the Gallery will be recommending to the PSB that he be permanently redeployed to the position of Photographic Records Officer (Clerical Administrative Class 4, PN. 7302) under Section 12 of the CE(RR) Act.
22.While the Gallery appreciates that Ross anticipated remaining in the International Prints and Illustrated Books Section until April 1987, given that the position of Photographic Records Officer has been identified as a permanent redeployment option, it was considered in the interests of Ross and the Gallery to alter the previous arrangements to those above.
Not only Mr Gould but also Ms Gilmour, the Senior Curator, International Prints and Illustrated Books, at the ANG, were extremely upset at the decision to move Mr Gould from his placement there without allowing him to finish the 12 months as previously agreed in writing. Ms Gilmour, on 11 February 1987, wrote to Mr Mollison, the Director of the ANG giving a glowing account of Mr Gould's achievements in his time in her department. She also pointed out that if Mr Gould was not able to finish the listing task on which he was then working virtually the entire results of his work would be lost. She wrote:
It is not something anyone else could take over, and it would mean, in effect, starting again from scratch, but without either a member of staff or anybody with sufficient existing knowledge to do it.

Ms Gilmour added (R11):

In view of our scheduled book exhibition, and the proposed audit, it would seem an extremely destructive thing to prevent him completing this work and it may also make the book exhibition an impossibility at the scheduled time, because every moment we have now will be put to Lasting Impressions. It also seems tragic that Ross, whose prospects for job advancement are going to be seriously affected by the demotion of working as a photographic filing clerk, is not to be allowed to bring this major work into being to help him with future job applications. The results of losing him too soon would be much the same as if I were to be run over after researching Clot for the past few months – everything would be lost.

Ms Gilmour was successful in ensuring that Mr Gould could complete his agreed year in the International Prints and Illustrated Books Section.
In April 1987, at the end of that agreed year, Mr Gould was seconded to the National Library for three months in the pictorial section. He enjoyed the work there and got on well with his colleagues but when he was interviewed for a permanent position he was unsuccessful. He said, that the delegate interviewing him gave him the impression that he thought the ANG was trying "to pass one of their problems to the Library" (trans. p20).
As Mr Gould was not successful in obtaining a permanent position in the library, he was sent back to the ANG in about July 1987. A position was still available in Photographic Services and Mr Gould who has an interest in that field was placed there. It was not a librarian position.
Mr Gould said he enjoyed some aspects of the position in Photographic Services such as liaising with the publications staff about what pictures they needed for the Gallery's publications. He suggested that he probably spent too much time and effort on those aspects of the position and neglected others. His work performance in Photographic Services was not satisfactory to his supervisor Mr Moore (see T3, T4, and R12).
Mr Gould explained that he had felt really positive when he was at the National Library from April to June 1987, as his experience there went so well. When he did not succeed in getting a permanent position and so was unable to stay there and had to go back to the ANG he went back "into a deeper level of depression and anxiety". He said he started having an increased number of times of low mood, started sleeping badly and had trouble getting up in the morning and going to work. He also said he again became oversensitive about any criticism.
Those problems are reflected in the report of his supervisor (seen by Mr Gould on 7 September 1987) at T3. The supervisor concluded:
It is my opinion that Ross is unhappy with his redeployment into the Photographic Services Section, and as a result this is reflected in his work performance and general attitude to the position. This atmosphere is not conducive to the effecient [sic] operation of the section and as a result the filing system in particular is suffering.
To date I do not believe Ross' redeployment is proving satisfactory, as the pressures on the section do not allow for the significant backlog of filing which has accumulated within the section during this term.

A later report of 7 November 1987 showed no improvement (T4).

On 18 November 1987, Mr Gould was again sent to a CMO. The CMO sought a report from the treating psychiatrist Dr Saboisky (T6). When Dr Saboisky wrote his report of 28 January 1988 (T6) he said that he had not seen Mr Gould for the last 15 months and so was "not completely up to date with any recent developments". He said that he had seen Mr Gould on 19 occasions from October 1985 to October 1986. He reported that Mr Gould had described "fluctuating depressions over the last few years due to which he felt utterly flat helpless and hopeless". Dr Saboisky noted that Mr Gould said his work performance had suffered as a result of difficulty in motivation and concentration.
Dr Saboisky reported that Mr Gould described treatment by his supervisor which he felt was discriminatory and compounded his difficulties. Dr Saboisky wrote that during the time he was seeing Mr Gould he thought the relevant issues in respect of the depression were the death of his father in 1983 and later the difficulties in his marriage. He said he did not think there was a period of serious depression which required medication while he knew Mr Gould, "although he continued to have some work related difficulties". Dr Saboisky referred to a letter he had written in December 1995 in which he had "put forward the view that he (Mr Gould) certainly perceived that his supervisor had acted in a way which did not assist his depression…" Dr Saboisky wrote "that a demotion or redeployment . . . could lead to another episode of depression." He concluded:
In summary, during the time I knew Mr Gould I did not think that he was seriously depressed to the point where he could not function adequately in the work place. He certainly gave a history of depression which did effect his performance and furthermore reported that his depression was worsened by what he perceived to be discriminatory action by a particular supervisor. He certainly does have an obsessional personality style and was under going some difficulties in relationship to his marriage in the latter time that I talked to him.
I have not seen him for such a long time that it would be impossible for me to make any statement regarding his current mental state or comment on his ability or inability to cope with the vicissitudes of occupational life since I have seen him.

As Dr Saboisky pointed out he could not comment on Mr Gould's mental state at the time he wrote the report. Nor could he say anything about the period relevant to this decision which was three months later. The only matters in that report relevant to the issue of whether or not Mr Gould's work related aggravation of a depressive illness resulted in incapacity after 8 April 1988 are:
(i)Dr Saboisky reported that Mr Gould said that he had had fluctuating depressions for a few years before the problems he had at work in 1984 and 1985.
(ii)It was Dr Saboisky's opinion that the major factors in the depression in 1985/1986 were family related
(iii)Even when the depression was such that it required 19 consultations with Dr Saboisky it did not result in incapacity for work
(iv)Dr Saboisky in December 1995 had expressed the view that deployment "could lead to another episode of depression".
The CMO's report of 9 February 1988 (T7) referred to Dr Saboisky's report which the CMO said recommended that Mr Gould was not unfit for normal duties. The CMO diagnosed Mr Gould as suffering a depressive illness and noted that the current redeployment "appears unacceptable both to employee and Department". The CMO indicated, by marking a box, that Mr Gould "is unfit for continued employment in the nature of the duties of the position presently occupied and should be re-deployed on duties of the following nature…" The CMO expressed the opinion "believe he's fit for Librarian 1 duties, but return to AN Gallery likely to precipitate ? depression, so position as librarian in another dept/authority should be sought". The CMO seems not to have realised that over the preceding four years that avenue had been pursued without any permanent alternative "position as librarian" being made available to Mr Gould.
On 8 April 1988 Mr Gould was given notice that his employment would be terminated from 8 May 1988 on the ground of invalidity. The Notice of termination on the ground of invalidity (T9) reads:
I, BRIAN WILSON, Manager, Administrative Service, Australian National Gallery
(1)being satisfied that you are unable to perform your duties, or other duties appropriate to your classification, because of physical or mental incapacity; and
(2)having considered whether it would be in the interests of the efficient administration of the Gallery to transfer you under section 50 of that Act;
GIVE NOTICE TO YOU, Ross Victor Gould, that you are retired from the Australian National Gallery.
Mr Gould said that Mr Wilson had told him that it was an "administrative invalidity". Mr Gould described that as a way of making an invalid out of somebody who was not an invalid. He said he had asked for a redundancy rather than an invalidity as that would put him in a far better situation to find other employment but Mr Wilson had said that was not possible. He said Mr Wilson asked if he would accept an invalidity and when he said "No", Mr Wilson said "In that case, we will enforce it" (trans. p23).
Mr Anforth asked Mr Gould how he felt about the enforced invalidity. He replied (trans. p23):
I felt very unhappy about the invalidity. I also felt that I was being put in an unsuitable box with the wrong label. I wanted to continue being employed, I wanted to continue in a job although I wanted one that was more suitable than the one I last had and my feeling was that I had not been helped sufficiently by Gallery management either in finding a new position and, as well, that there was never a proper investigation of what had happened in the library in the early period and I felt very let down by that and very undermined and it's contributed as well to a sense of injustice and obliqueness, just a general feeling of hopelessness about the future, that it seemed that no matter what happened and no matter what I tried to do about it it led nowhere, that there were no possibilities. You know, it was an endless tunnel with no light at the end of it, that I had been in some respects de-skilled, that I was no longer – I no longer had the positive attitudes that I'd had when I went to the Gallery, that I no longer had the ability to get on with people that I'd had in that earlier period, I was aware that I'd become – not just that other people saw me as awkward and difficult but I felt that way about myself in the period as well. I was aware that I was not behaving in the way that I normally – the sort of person I'd normally been in the past and I didn't know how to get back to being myself again.
Mr Gould has not had full-time employment since he was invalided out of the Public Service, with effect from 8 May 1988. He has had part-time employment in a position which he had already commenced as a hobby, towards the end of his period at the library.
Shortly after being invalided out of the ANG, Mr Gould lodged a claim for compensation with the ANG. He dated the claim 4 May 1988. For some reason, which was not explained to the Tribunal, the personnel staff at the ANG did not process that claim until 10 October 1989 when the Personnel Officer sent it to Comcare with a covering letter, the first paragraph of which read (T12):
Please find attached a claim that was filled out by Mr Ross Gould in 1988. As I explained to your office over the telephone, it was previously considered that it had not been formally lodged and therefore no action was taken. On reflection, I believe there is sufficient information for this case to be considered and would appreciate it if you were able to give it some urgent attention.
On 21 June 1990 a primary determination was made (T25) accepting liability for aggravation of depressive illness but finding that the effects ceased on 8 April 1988 and that therefore compensation was not payable after that date. That decision was affirmed by the reviewable decision. As Mr Gould was not incapacitated for work as a result of any aggravation of depressive illness prior to 8 April 1988 no compensation was paid as a result of that determination. It is not clear whether the cost of his medical treatment and psychological counselling had been paid by the ANG. If Mr Gould had paid those expenses he would have been entitled to compensation for the cost of treatment under s 16 of the Act. Neither the determination of 21 June 1990, nor the reviewable decision of 7 November 1991 gives any reason for having determined that the period of work related aggravation of a depressive illness ceased on 8 April 1988. In the reviewable decision reliance was placed on Dr Saboisky's report of 22 October 1991, although a reading of that report together with Dr Saboisky's report of 28 January 1988, makes it clear that Dr Saboisky had not seen Mr Gould between 24 October 1986 and 30 March 1989.
The issues for the Tribunal are:
(i)is Mr Gould entitled to compensation for incapacity in respect of any period after 8 April 1998?
(ii)is Mr Gould entitled to compensation for permanent impairment resulting from the accepted compensable injury of aggravation of depressive illness.
(i)is mr gould entitled to compensation for incapacity?
This is a difficult question. Even when his depressive illness was at its worst Mr Gould did not require or take time off work due to his depressive illness. As he said in his evidence it was his belief that he was not an invalid in May 1988 and he should not have been invalided out of his position. He considered that if he had been made redundant that would have helped him obtain other work. Even after the invalidity retirement, Mr Gould did not see a doctor or psychiatrist about his depressive illness until 30 March 1989.
Mr Gould did not seek any other full-time employment after 8 May 1988, although he did continue with the part-time position he had as a guide for the Astronomical Society three or four evenings a month.
Mr Gould said that he occupied himself by becoming more involved in the Astronomical Society and doing more photography. He explained (trans. p27):
I felt very bruised and unwanted from the experiences over the preceding years, and I didn't feel very enthused about trying to find a full time job. What was mainly on my mind in the period, I think, was the feeling that nobody wanted me in full time work and I'd be taking a considerable risk in trying to get back into full time work, even if I had the means of doing that, because I didn't, by that time, have very recent positive references from past employment. I had the difficulty, it seemed to me a considerable difficulty that I was now labelled an invalid, whatever that meant, and nobody seemed to be entirely clear about what it meant, but they did all regard it as something that wasn't positive. My impression had been reinforced by the experience in trying to get a job with the National Library that if you have some kind of label, or some past period where there is a problem that connects with you, even if you're the victim rather than the cause, potential employers will see you as a problem and won't be greatly interested in trying to work out whether you might be suitable for them, or not. They have more than enough to deal with already.
Mr Gould said his symptoms continued although their level varied from time-to-time. He said his marriage difficulties had originated in the earlier period when he had difficulties at work. He went back to Dr Saboisky in 1989 at a time when he wanted to talk about those marital issues. He said he was not interested in socialising and often felt out of place and had difficulty concentrating and being irritable even with his friends.
At the time of the enforced invalidity retirement Dr Saboisky did not see Mr Gould. The only doctor who did was the CMO who expressed the opinion that he suffered a depressive illness but was fit to work as a Librarian 1 (his substantive level) but that the position at the ANG, the only place where he held a substantive position "appeared unacceptable both to employee and Department [sic]". The CMO wrote that a return to the ANG would be likely to precipitate an increase in depression. Mr Gould attributed his sub optimal performance in his last job at the ANG to an increase in his "down moods", and difficulty sleeping and getting motivated to go to work in the mornings. We find that was his lay description of the symptoms of the depression which was diagnosed by the CMO.
The Tribunal accepts that, as found by the delegate in the primary determination and in the reviewable decision, Mr Gould's employment did result in an aggravation of depression. There is no evidence that any such aggravation resulted in incapacity prior to 8 May 1988. Nor is there evidence that the work related aggravation ceased with Mr Gould's compulsory invalidity retirement. One would expect that it would be further aggravated by a retirement which was unwanted. Certainly, if the work related aggravation had ceased, one wonders why there was an invalidity retirement.
Mr O'Donovan suggested that the reason why it is difficult to decide whether Mr Gould continued to be incapacitated for work after 8 April 1988, as a result of his compensable injury, is that he was not in fact ever incapacitated for work as a result of depression. He submitted that Mr Gould should not have been invalided out of the Public Service (if indeed he was ever within the Public Service).
In his closing address Mr O'Donovan described the act of invaliding Mr Gould out of his position as "entirely inappropriate", but he asserted that it was not Comcare's action and that Comcare should not pay compensation because of Mr Wilson's inappropriate action.
While the gaps in the evidence as to Mr Gould's health at the relevant time do give some basis for Mr O'Donovan's submission, we consider that the best evidence as to what happened in 1988, is probably the evidence which came into being at that time.
The sickness records before the Tribunal (T3 and T8) do not show that Mr Gould had any time off during the period 1985 to 1988 for what appear to be depressive symptoms. However he did see first a vocational counsellor and then a psychiatrist for a number of consultations during that period. There are also reports before the Tribunal indicating that his work attendance and concentration at work were impaired. There are medical reports from CMOs in 1984 and in 1988 stating that Mr Gould was suffering from a depressive illness with a work related component and that he should be redeployed from his nominal position at the ANG.
It was following the CMO report that Mr Wilson gave notice of invalidity retirement to Mr Gould on the basis that there was no work for Mr Gould which conformed to the medical restriction that he not return to work at the ANG. Although Mr Gould did not want to cease work, and did not believe he was incapacitated for work, he did not challenge the determination that he be retired on the ground of invalidity.
Mrs Gould had prepared a helpful detailed statement as to the effects she observed on Mr Gould of the troubles he had at work, and of his involuntary invalidity retirement. It was received into evidence (A9).
Mrs Gould in her statement described her husband expressing his frustration with his employment situation at the ANG, particularly when he realised that he could not satisfy management, but that he could not get what he saw as a fair reference to allow him to "escape to a more amenable working place". She described also his distress when he was not allowed to stay in placements such as the NFSA and the International Prints and Illustrated Books section of the ANG, where he felt he was making a contribution which was valued:
Mrs Gould wrote (A 9 pp1-3):
It was devastating to finally learn that he was to be invalided out, not because he was at that time considered unfit for work by the CMO but because the Gallery was using a technical loophole to dismiss him against his will and thus deliberately and irrevocably indicate that they did not value him at all.
The overwhelming impact of that statement proved beyond the power of Ross or of those who loved him to ultimately overcome.
. . .
From the time he left work, I noticed a clear drop in his already low mood. His energy levels dropped and he was increasingly reduced to repetitive non-threatening activities such as computer games. The trend was compounded by the direct impacts of the loss of that employment as discussed above and he became increasingly down in spirits, increasingly inured to encouragement, increasingly unable to gain pleasure from those activities which had always previously had the power to lift his spirits. Most disturbing of all was his growing disengagement from myself, the girls and other members of the family, despite my best efforts and those of many friends who cared about him, to drawn him in and value him.
Ross was responsible for getting the girls to school on time and picking them up. This became increasingly problematic. The girls were regularly the last to be collected in the afternoons, which they strongly complained about. The teachers at the school rang me regularly with concerns about how late the girls were getting to school in the mornings. At first they would be sympathetic to the family circumstances but that wore thin as each new year progressed. We would talk to Ross about it but his usual response was to deny it was happening or to play it down. We learnt it was not wise to press the point as he was likely to become angry or distressed.
. . .
As his behaviour became more noticeably affected, I tried on several occasions to get him to seek professional counselling. These requests upset him greatly and each time he refused. Friends who cared about him, expressed their concern to me and several also suggested to him that he seek counselling. On each occasion he refused to acknowledge any problem and once or twice became distressed at the suggestions even though they were delivered in a gentle and caring way.
Mrs Gould's perception, from the things her husband said to her at the time was that the low level of the last position he had at the ANG, "was a slap in the face" (trans. p117). She said his attitude was going downhill during that placement. After the involuntary invalidity retirement he constantly said, "a man's self esteem, self image comes from his job. I don't have a job" (trans. p117). She said he became increasingly withdrawn from that time.
Mr O'Donovan tendered (R22) a redeployment salary calculation which showed that Mr Gould's salary as a Librarian Class 1 was $25,313 gross per annum and that the salary for the Clerical/Administrative Class 4 position to which he was to be redeployed was $23,190 per annum. He would have also been paid a partial invalidity pension of $1061.50 per annum being 50% of the $2123.00 decrease in salary. Financially Mr Gould would not have been much worse off in the clerical/administrative position in the Photographic Services Section, but we accept his evidence and that of Mrs Gould and find that the demotion from a librarian's position to a clerical/administrative position was "a slap in the face".
Mrs Gould in her statement had also written on page 2:
The conditions of his superannuation package dictated that he could not work sufficient part-time hours to build the financial capacity to work his way out of this impasse and make a new career for himself. He attempted to seek other employment but had to finally accept that even though his invalidity was "technical" and despite good referee reports from previous supervisors, he was unable to overcome what appeared to be employer prejudice against someone who was assumed to be unfit for work.

Mr O'Donovan asked Mrs Gould to comment on that passage. She said that she got the impression that Mr Gould felt that the conditions of the superannuation package were another factor which meant he was unable to control the situation. He could not obtain full-time work and he could not even build up his part-time work to a satisfying level. She added that he was not capable of pursuing work anyway "in terms of the energy levels and the other things he was doing" (trans. p109).

Mrs Gould said that after Mr Gould left the ANG his compulsive behaviour increased. When Mr O'Donovan suggested to Mrs Gould that her husband had not (according to the medical records before the Tribunal) reported any reduction in his energy levels to his treating psychiatrist, Mrs Gould said that she was not sure that he was terribly aware of his own behaviour at that stage. She said that she had not suggested he return to Dr Saboisky or any other psychiatrist earlier than 1989. She thought his low mood was a reaction to the loss of his work.
The evidence is that Mr Gould did not seek any medical treatment of relevance to this application until March 1989, when he returned to Dr Saboisky. At that time he saw Dr Saboisky on referral from Dr Ron Smith. Dr Saboisky's notes reveal that Mr Gould complained of increasing depression, poor sleep and erratic behaviour. Mr Gould described himself as "getting by [with] Penny" and mentioned that he had left the ANG in May 1988 on "admin invalidity".
In his report of 22 October 1991 to Comcare (T34), Dr Saboisky, in referring to that one attendance in March 1989, wrote that he believed at the time that Mr Gould's ongoing depression was linked to complex recreational problems rather than any other factors such as work. Dr Saboisky in that report did refer to Mr Gould suffering "ongoing depression". He wrote (T34):
At that consultation Mr Gould talked about having increasing depression, poor sleep and erratic behaviour a[t] home. There were complex relational problems and I felt at the time that his ongoing depression was inextricably linked to these factors rather than to any other factors.
I have not seen him therefore for over 2 ½ years and am not in any position to make any judgement regarding his current capacities.
Therefore to answer your questions in turn;
a. When I last saw him I did not believe that there was any incapacity related to work factors.
b. Because I have not seen him I cannot really make a judgement on whether o[r] not the work related stresses are contributing in any measurable fashion to any current problems with his capacity.
c. Again I cannot make a judgement regarding whether the effects of employment have ceased.
In summary I can only say with any certainty that on the one occasion that I saw him since 1988, his problems were related to his marriage and not to any other factor.

Dr Saboisky in his evidence said that he had not felt, even when he first saw Mr Gould in October 1995, that he qualified for a clinical diagnosis. He said he gave a history consistent with depression that had passed, because he had moved away from an employment situation which he had found stressful. That is not the impression Dr Saboisky gave in his report of 17 December 1985 (A6), which referred to amelioration of symptoms of a depressive illness, with removal from a perceived stressful environment, rather than cure of the depressive illness. Nor is it consistent with Dr Saboisky's evidence that he saw Mr Gould on 19 occasions over a year to look at psychological underpinnings of his depression.
Dr Saboisky saw Mr Gould again in 1994. He said the issue raised then was mostly how Mr Gould could leave his marriage in the least damaging way. He also gave a history of his activities as the official photographer for the Australian Athletics Organisation for eight years, and being the editor of an astronomical magazine.
In cross-examination Dr Saboisky agreed that he had advised the ANG in December 1985 (A6), that there was a significant chance that a demotion would lead to a further depressive compensation. He agreed that a termination of employment could have an even more decompensating effect than a demotion. He said Mr Gould was not clinically depressed when he saw him in March 1989. That however is inconsistent with his report of 22 October 1991. In that report Dr Saboisky, as set out in paragraph 53 above, recorded that Mr Gould had talked about "having increasing depression, poor sleep and erratic behaviour at home". Dr Saboisky then expressed his own opinion:
I felt at the time that his ongoing depression was inextricably linked to these factors [ie complex relational problems] rather than to any other factors.
We find that the fact that Mr Gould did not seek medical treatment between May 1988 and March 1989 does not indicate that he was not suffering a depressive condition during that period. Dr Saboisky, in his reports (A5 and A6) wrote that Mr Gould "did indeed suffer from a depressive illness", prior to being moved to NSFA although his depression had lifted or improved by October 1985. That shows that Mr Gould did not seek medical treatment when he was depressed in 1984 and 1985. We find it probable that in 1988 once again he was depressed but did not seek medical treatment. Mr Gould's description of his symptoms shortly after his invalidity retirement, and his wife's account of his behaviour at that period, were similar to his description of his symptoms during the early period of conflict with his supervisors at the ANG.
The Tribunal explained to Counsel that it had some difficulty in deciding whether Mr Gould suffered incapacity for work after his enforced invalidity retirement. Mr Anforth referred to the definition of "incapacity" in s 4(9) of the Act. That definition reads as follows:
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

We do not find that definition helpful in resolving the issue. The report of the CMO stated that Mr Gould could perform work at the Librarian 1 level but recommended that it not be with the ANG.

There is no medical evidence covering the period from 8 April 1988 to 30 March 1989. Doing the best we can, accepting as we do the descriptions given by Mr and Mrs Gould of his mood and symptoms after the compulsory retirement, we have concluded that Mr Gould probably did suffer a further depressive decompensation, as foreshadowed by Dr Saboisky in his report A6, at about the time he was invalided out of work and for a time thereafter. We find that aggravation of his depressive condition resulted in part from the actions of his supervisors in 1984, and in part from the fact that for the following four years he was moved from one position to another and not able to remain in the positions where his work was satisfying to him, and valuable to the organisation or section in which he was working. Another factor was the demotion to a clerical/administrative position. The final factor was the enforced administrative invalidity.
We accept, as Dr Saboisky wrote in T6, that Mr Gould had had fluctuating depressions previously unrelated to his work. Mr Gould's statement A4 and his evidence at the hearing both explained the role of family matters in his depression prior to the problems at work in 1984. We find on the balance of probabilities that the accepted compensable aggravation of Mr Gould's depressive illness did not cease on 6 April 1988. There is no evidence at all suggesting that to be the date of cessation of the work related aggravation. The CMO said Mr Gould had a depressive illness on 9 February 1988 and there is no evidence that it improved between that date and 8 April 1988. We find the aggravation continued after the further distressing invalidity retirement and that it did result in incapacity for work which led to the invalidity retirement and lasted for a time after that retirement.
The next questions are how long that aggravation continued and how long it resulted in incapacity for work. When Mr Gould saw Dr Saboisky in March 1989, so far as Dr Saboisky's notes reveal, Mr Gould did not attribute his increasing depression to his employment problems. Dr Saboisky concluded that Mr Gould was suffering from depression secondary to matrimonial difficulty rather than any other factors. Mr Gould only saw Dr Saboisky once at that period. So far as Dr Saboisky's records show he did not send a report to the referring doctor after that consultation. In his letter to the ANG of 1991 (T34) Dr Saboisky expressly disclaimed being in a position to express an opinion as to whether or not work difficulties were contributing to Mr Gould's problems in 1991. Neither did he say whether or not Mr Gould was incapacitated for work.
When Mr Gould started seeing Dr Lawrence on 26 March 1995 he did not, according to Dr Lawrence's records, deal with his problems in the workplace at all for approximately two years, save that on 2 June 1995 Dr Lawrence noted, "Never been paid compo" (R21). During that period Mr Gould had regular appointments until September 1995. He was then overseas from October 1995 to March 1996. He did not return to Dr Lawrence until February 1997. In what appears to be about June 1997 a note seems to read "discussed Gallery with lawyer declines medn [mediation]". In August and September 1997 there appears to be reference to seeking his old job at the ANG and discussions with his solicitor about the compensation claim. In 1998 Dr Lawrence obtained a full account of the problems at the ANG and on 28 April 1998 he wrote a lengthy report to Mr Anforth (T51).
That report, as stated in its first sentence, was written to support Mr Gould in his application for compensation. It sets out the history of workplace difficulties since the move to ANG, no doubt as given to him by Mr Gould probably in the consultation on 27 February 1998 when the clinical note reads simply "Reviewing the case for Comcare". The report states, somewhat surprisingly in view of the lack of mention of these matters in the early consultation notes of Dr Lawrence, "in my view the major stressor by far has been what appears to be quite unjust experiences in his work place" (p5 of report). Dr Lawrence diagnosed Mr Gould as suffering a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said it was contributed to by the stressor he had experienced at work at the ANG.
That report is very different to the report Dr Lawrence had sent to Dr Wareham, the referring doctor, on July 12 1995 (R1). In that report, written after nine consultations, there was no mention of work problems at all. It referred to a history of depression and anxiety and irritable bowel, but focussed on "a chronic unresolved conflict operating in his marital relationship".
Dr Lawrence, in his evidence, said that as best as he could judge, with the benefit of hindsight, he considers that Mr Gould was clinically depressed from 1990 to 1994 even though he did not see a doctor. He said he saw a clear correlation between what happened at the ANG and the depression. He said the compulsory invalidity retirement continues to have a major effect on Mr Gould's life.
Dr Lawrence denied the suggestion put to him by Mr O'Donovan, that Mr Gould only provided him with information about his work situation after he had decided to pursue his compensation claim. After looking at Dr Lawrence's notes we must say that we do not accept his evidence on that issue.
Dr Lawrence said he still sees Mr Gould approximately every four to six weeks. He said he would diagnose him as moderately depressed. He said the best treatment for him would be if he could get back to some work that does correlate with his skills.
Doing the best we can on the rather scanty evidence before us we accept Dr Saboisky's opinion that when he saw Mr Gould in March 1989 one year after his enforced retirement, his problems were related to his relationships rather than to his employment. We do not accept Mr O'Donovan's submission that the work contribution had ceased by the time Mr Gould was invalided out. We find that added to the employment contribution. But the only contemporaneous medical evidence relevant to the issue before us is that of Dr Saboisky who said that by March 1989 the work problems were no longer making any ongoing contribution to the depression Mr Gould was reporting at that time.
From Dr Saboisky's notes it does not seem that Mr Gould raised any problems with work capacity with Dr Saboisky on 30 March 1989. He told him that he was "looking after kids", reading a lot and doing a lot of photography. Both Mr and Mrs Gould mentioned that Mr Gould could not find employment and that even if he did, he had concerns about losing his invalidity entitlements. This is not a matter where there is clearly an ongoing incapacity for work. We are conscious of the fact that even when Mr Gould's depression was at its worst, prior to seeing Dr Saboisky in 1985, Mr Gould did continue to work though he did not perform in a way satisfactory to his supervisors.
We find that Mr Gould had an incapacity for work due to an aggravation of a depressive illness which was contributed to by his employment from 8 May 1988, when he was invalided out of his employment with the ANG. We find that his incapacity had ceased to be contributed to by his employment by 30 March 1989 when he saw Dr Saboisky.
For the period from 8 May 1988 to 30 march 1989 we find that Mr Gould is entitled to compensation for incapacity for work resulting from the aggravation of his depression, to which his employment continued to contribute. The amount of such compensation must be calculated under s 20 of the Act. We find that during that period Mr Gould was not able to earn any amount in "suitable employment". The relevant part of the definition in s 4(1) is paragraph (a) which reads as follows:
"suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment-employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence-whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and

There was no employment as a librarian offered to Mr Gould outside the ANG as recommended by the CMO on 9 February 1988.

The remaining issue is whether Mr Gould is entitled to compensation under ss 24 and 27 of the Act for permanent impairment resulting from the accepted compensable aggravation of depressive illness. A claim for compensation for permanent injury (T60) was lodged on 28 October 1998. The only medical evidence that Mr Gould suffered from a permanent impairment resulting from a depressive illness to which his former employment continues to contribute was that of Dr Lawrence.
Dr Lawrence in his report (T51) set out a history of the work problems which in evidence he said had been derived from an account written out for him by Mr Gould. In the report Dr Lawrence concluded that Mr Gould had developed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood which was still persisting. He expressed the opinion that there was "a direct and continuing link between the stress he experienced at work . . . and his current state of health". He assessed Mr Gould's permanent impairment on Table 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment ("the Guide") as 10% whole person impairment.
We do not find Dr Lawrence's evidence persuasive. We regard the fact that during the 12 consultations in 1995, there was no recording of the effects of work related problems in Dr Lawrence's notes as indicating that Dr Lawrence did not then see any significant employment contribution to Mr Gould's presenting problems. In 1996 Mr Gould did not attend Dr Lawrence. When he resumed seeing him in February 1997 the detailed early notes relate to family issues. It was only later in 1997 that the work issues were raised in connection with the claim for compensation.
We find that Dr Lawrence's evidence was based not so much on the opinions he formed during his consultations with Mr Gould, as on the detailed account of his employment conflict which Mr Gould had prepared in the context of seeking a supportive report for these proceedings. We find that approach led Dr Lawrence to form an opinion in retrospect which he had not formed during many lengthy consultations.
We do not find that as at 28 October 1998 Mr Gould was suffering a permanent impairment as a result of the aggravation of his depressive condition to which his employment had contributed in the years 1985 to 1989.
In matter A1999/366 the decision under review will be varied to provide that from 8 April 1988 to 30 March 1989 Mr Gould continued to suffer from an employment related aggravation of his depressive condition which resulted in incapacity for work and that he is entitled to compensation for incapacity under s 20 of the Act in respect of that period. In matter A2000/159 the decision under review will be affirmed. We will order pursuant to s 67(8) of the Act that Mr Gould's costs in respect of matter A1999/366 be paid by the respondent.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Grace Carney
  Personal Assistant
Date/s of Hearing  25 and 26 February 2002
Date of Decision  19 July 2002
Counsel for the Applicant        Mr A. Anforth
Solicitor for the Applicant         Maliganis Edwards Johnson
Counsel for the Respondent    Mr D. Donovan
Solicitor for the Respondent    Australian Government Solicitor