Hailu and Australian Postal Corporation
[2004] AATA 718
•5 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 718
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/350
GENERAL ADMINISTRATIVE DIVISION
Re: BOGALE HAILU
Applicant
And: AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 5 July 2004
Place: Melbourne
Decision:The Tribunal sets aside the reviewable decision dated 17 March 2003 and substitutes the decision that:
1.the applicant's pre‑existing adjustment disorder was aggravated by his work injury of 1 November 2001;
2.the respondent is liable to pay the applicant’s reasonable medical treatment expenses from the date of the accident until the date of this decision in accordance with the Safety, Rehabilitation and Compensation Act1988; and
3.the applicant’s medical treatment expenses relate to the psychiatric treatment necessitated by the aggravation of the pre‑existing adjustment disorder.
(sgd) E.A. Shanahan
Member
ADMINISTRATIVE APPEALS TRIBUNAL N° V2003/350
GENERAL ADMINISTRATIVE DIVISION
Re: BOGALE HAILU
Applicant
And:AUSTRALIAN POSTAL CORPORATION
Respondent
DIRECTION [2004] AATA 718
Tribunal: Miss E. A. Shanahan, Member
Date: 7 June 2005
Place: Melbourne
Member Shanahan made a decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 5 July 2004.
The Tribunal was notified by letter dated 31 March 2005 from the applicant’s solicitor that there is an error in the decision.
In accordance with s 43AA(1) of the Act the Tribunal directs that the Registrar alter the text of the decision by inserting the following paragraph following paragraph 3 on page 1:
Upon consent of the parties, the Respondent shall pay the applicant’s reasonable party/party costs for this application for review, up to and including 6 July 2004, which are not common to the costs of applications N°V2002/999 and N°V2003/1324; and in the absence of agreement to be taxed in accordance with the Administrative Appeals Tribunal Practice Direction dated 18 May 1998.
(sgd) E.A. Shanahan
Member
COMPENSATION – worker's compensation claim – back injury - permanent impairment – secondary psychological symptomatology – pre‑existing psychological condition – aggravation of pre‑existing psychological condition – claim for past and ongoing psychiatric treatment and medication
Administrative Appeals Tribunal Act 1975 ss 37, 42C
Safety, Rehabilitation and Compensation Act 1988 ss.4, 14(1), 62(5)
REASONS FOR DECISION
5 July 2004 Miss E.A. Shanahan, Member
1. This is an application for review of three decisions by the respondent, dated 20 August 2002, 24 November 2003 and 17 March 2003 (V2002/999, V2003/1324 and V2003/350), relating to the liability of the respondent, under s 4 of the Safety, Rehabilitation and Compensation Act1988 (the Act), for a work‑related back injury and the permanent impairment and psychological consequences secondary to the injury suffered by the applicant.
2. At the commencement of the hearing, the parties advised that they had reached agreement with regard to the respondent's liability for the back injury and permanent impairment claims. The consent orders requested were acceptable to the Tribunal and were adopted as a Tribunal decision in accordance with s 42C of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
3. As a result, the only issue for determination by the Tribunal related to the claim for psychological injury consequent upon the physical injury of L5/S1 disc prolapse and chronic pain syndrome. The applicant claimed expenses arising from his psychiatric treatment for consultation with his psychiatrist and medication. The reviewable decision of 17 March 2003 was based on the opinion of Dr I. Sale, consultant psychiatrist, that the applicant was not suffering from any diagnosable psychiatric disorder (T42 p145).
4. The applicant was represented by Mr M. Carey, of counsel, instructed by Clark & Toop, solicitors, and the respondent was represented by Mr M. Croyle, of counsel, instructed by Sparke Helmore, solicitors. The Tribunal had before it the documents lodged pursuant to s 37 of the AAT Act (the T‑documents) (Exhibit A1), and several documents were tendered by both parties.
5. The applicant tendered the clinical records of Dr D. Kochar, consultant psychiatrist (Exhibit A2) and his report dated 7 July 2003 (Exhibit A3); two reports of Dr M. Epstein, consultant psychiatrist, dated 30 June 2003 (Exhibit A4) and 15 August 2003 (Exhibit A5); an estimate of impairment prepared by Dr Epstein dated 20 November 2003 (Exhibit A6); and a report from Dr R. Lee, the applicant’s general practitioner, dated 20 July 2003 (Exhibit A7).
6. The respondent tendered a report by Dr N. Lewis, consultant psychiatrist, dated 1 September 2003 (Exhibit R1) and a report by Dr Sale dated 14 August 2003 (Exhibit R2).
BACKGROUND TO THE APPLICATION
7. The applicant suffered a back injury at work on 1 November 2001. The precise diagnosis was not made until 22 December 2001, when he underwent an MRI scan which showed L5/S1 intervertebral disc prolapse with a radial fissure and abutment on the exiting S1 right nerve root. Prior to this investigation, the applicant’s symptoms have been attributed to a musculo‑ligamentous strain. Liability for the L5/S1 disc lesion and permanent impairment is now accepted by the respondent.
8. The applicant first sought psychiatric treatment on 4 December 1993. He had read an article on depression in the Herald Sun newspaper. He believed he had several of the symptoms reported and, as a result, requested his general practitioner to refer him to a psychiatrist. He first saw Dr Kochar on 4 December 1993. Dr Kochar continued to treat the applicant at two to four‑weekly intervals until 12 September 2001. No definitive psychiatric diagnosis was made during this period (Exhibit A2). Dr Kochar did note the applicant’s difficulties in assimilating into Australian society. The applicant had been awarded refugee status by the United Nations in 1998, at which time he was living in Cairo, Egypt. He chose to migrate to Australia, having been offered domicile in Canada, the United States of America and Australia. He achieved permanent residency status in Australia in 1989 and undertook tertiary education for some years. In 1993, he commenced working part‑time with the respondent screening and sorting both mail and parcels unloaded from ULDs. In about May 1998, the applicant advised Dr Kochar that he was suffering workplace harassment related to ethnicity and his work ethics. Dr Kochar recommended that he lodge a complaint to his employer, but the applicant did not follow this advice as he felt that it would aggravate the situation. On 23 July 2002, Dr Kochar reported the psychological affects of the applicant’s back injury to the applicant’s employer.
9. The applicant’s psychological status improved with treatment between 1993 and September 2001. The applicant met a young lady of Ethiopian origin in Canada. A close relationship resulted and she fell pregnant. In July 2002, she gave birth to their daughter in Canada, where she lives. The applicant attended the birth and a large family reunion celebrated the event. While the applicant’s parents continued to live in Ethiopia, most of his siblings are Canadian citizens.
10. After the birth of his daughter, the applicant returned to Australia and to work with Australia Post. On 1 November 2001, he suffered a back injury at work. Australia Post has since (24 February 2004) accepted liability for this injury and for the permanent impairment that resulted from it. As part of the applicant’s rehabilitation program, he was assessed by an Australia Post psychologist who recommended referral to a psychiatrist. The applicant elected to return to see Dr Kochar, and did so on 21 September 2002. He has continued to see Dr Kochar on a two to four‑weekly basis since that date. The Tribunal notes that the applicant did not seek any psychiatric treatment for a period of 12 months, until 21 September 2002.
EVIDENCE BEFORE THE TRIBUNAL
11. The applicant was born on 12 December 1966 and underwent schooling in Ethiopia. He commenced a TAFE engineering training course but was called up for National Service in Ethiopia. His parents arranged for him to flee the country to avoid National Service and ultimately, in 1988, he located to Cairo. The applicant confirmed these facts in his evidence‑in‑chief. On arrival in Australia, he had undertaken English classes and then enrolled in an engineering course at the Royal Melbourne Institute of Technology. He studied full‑time until 1993, but in order to support himself he applied for a part‑time position through the then Commonwealth Employment Service and was accepted by Australia Post, initially on a part‑time basis but then on a full‑time basis, working evening shifts.
12. The applicant gave evidence that from 1998 until 1999 he was an acting supervisor with Australia Post. He said that, from his initial employment, he suffered discrimination at work, relating to his colour, racial origins and work ethics. The applicant visited his family in Ethiopia and his uncle in Bilbati in 1995 and 1996. He confirmed that, in 1999, he had met a Canadian woman of Ethiopian origin and that this acquaintanceship was renewed at the Sydney Olympic Games of 2000. The relationship flourished and in July 2001 a daughter was born from this relationship. They planned to marry.
13. Following his back injury, the applicant stated that his relationship with the mother of his daughter deteriorated, as he was occupied, primarily, with his pain. He had planned to go to Canada for his daughter's first birthday, but he cancelled the trip because of his pain syndrome. His partner had described him as "a totally different person". The applicant stated he had been working five hours per day for five days per week, but he was not coping psychologically in that he frequently became tearful and his sleep pattern was disturbed.
14. In cross‑examination, Mr Croyle substantiated the applicant’s evidence‑in-chief.
15. The T‑documents contained the reports of four psychiatrists, Dr Kochar, Dr Epstein, Dr Lewis and Dr Sale. Subsequently, all four gave evidence before the Tribunal and their written reports are noted.
EVIDENCE OF DR D. KOCHAR
16. Dr Kochar provided his clinical records (Exhibit A2) and a report dated 7 July 2003 (Exhibit A3). His clinical notes included letters to the referring doctors, the applicant’s general practitioner, Dr T. Turk, and later Dr Lee. Dr Kochar had seen the applicant regularly, from 19 December 1993 until September 2001. He confirmed that the applicant first consulted him on referral from his general practitioner, after the applicant had read a newspaper article on depression. The applicant said that he experienced several of the symptoms reported in this article. In particular, he stated he was quiet, inactive, disinterested, lacking in energy, easily upset and becoming snapping and irritable. The applicant also advised that he was feeling homesick and had problems in communication and socialising. While not making a definitive diagnosis, Dr Kochar commenced the applicant on Prozac, 20mgs daily, to help alleviate this perceived depression. During this period, until September 2001, Dr Kochar noted that the applicant had shown progress and was better able to cope with his problem. He described the treatment given as psychotherapy, allowing the patient to express their internal feelings, explaining to the patient the cause of their symptoms and giving them reassurance.
17. Dr Kochar described the applicant’s symptoms as being a …moderate degree of stress (trans p5). Some time prior to 19 June 2001, Dr Kochar obtained a history of workplace harassment. The applicant was reticent to elaborate on this. However, Dr Kochar was sufficiently disturbed by the applicant’s treatment in the workplace to recommend to him that he complain to his employers. The applicant did not act on the recommendation as he was apprehensive about the repercussions of doing so. By mid‑2001, the applicant had improved, was coping better and his level of distress had diminished.
18. Dr Kochar next saw the applicant in September 2002, following a back injury in November 2001. Consequent upon this injury, the applicant’s anxiety and depression had recurred. Dr Kochar was quite confident that the work injury had contributed toward aggravating the applicant’s psychological state.
19. While Dr Kochar had initially reported that the applicant had some of the symptoms of post traumatic stress disorder, he gave evidence to the effect that an adjustment disorder would apply reasonably equally and that the treatment would be the same. He did not agree with the report of Dr Sale, who saw the applicant on one occasion, that there was no psychiatric disorder. He disagreed with Dr Sale's report that the applicant was suspicious or even paranoid. While Dr Kochar had been aware of the applicant’s background as a refugee from Ethiopia, he had been unaware, until late 2002, of his relationship with a Canadian citizen of Ethiopian origin and the subsequent birth of a daughter to the couple in July 2001.
20. In cross‑examination by Mr Croyle, Dr Kochar agreed that he had written a letter to the employer regarding the harassment the applicant had experienced at work. This letter had been sent to Dr Lee on 19 June 2001. Dr Kochar also agreed that originally the applicant’s depression appeared to be related to adjustment to living in a new country with a degree of homesickness. He had not, however, inquired in detail of the applicant’s life in Ethiopia and why he became a refugee. On direct questioning, Dr Kochar said that he had, on the initial presentation, diagnosed anxiety and depression. In the period of treatment between 1993 and 2001, the applicant had been responsible for all charges for the consultations. Dr Kochar had no record of the applicant going overseas in late June 2001 for a holiday in Canada. He agreed he was unaware of the birth of the applicant’s daughter, in July 2001, until much later. Dr Kochar agreed he had next seen the applicant on 11 September 2002, following his back injury, and that this referral had been self‑initiated, but a referral from the general practitioner Dr Lee had subsequently been provided. The applicant had returned to see Dr Kochar on the advice of the psychologist involved in the treatment of his back injury. While Mr Carey pursued this so‑called self‑referral and the late provision of a referral by the general practitioner, it is not relevant to this matter.
21. Dr Kochar had diagnosed a chronic pain syndrome secondary to the back injury with recurrence of anxiety and depression, for which he prescribed appropriate medication. He agreed with Mr Croyle that the medication prescribed had a two‑fold action, in treating chronic pain syndrome and anxiety and depression. Dr Kochar reiterated that the applicant had improved between 1993 and September 2001 with psychotherapy and medication.
22. Initially, Dr Kochar denied contacting the employer regarding the applicant’s condition of recurrent anxiety and depression following his back injury. However, when documentary evidence that Dr Kochar had telephoned the employer on 11 December 2002 was pointed out, Dr Kochar agreed that this probably occurred although he had no recall of the event. Dr Kochar reiterated that some of the applicant’s symptomatology was consistent with the diagnosis of post traumatic stress disorder.
DR M. EPSTEIN'S EVIDENCE TO THE TRIBUNAL
23. Dr Epstein had seen the applicant on 26 June 2003 and provided a report to his instructing solicitors, dated 30 June 2003 with a supplementary report of 15 August 2003 (Exhibits A4 and A5). Dr Epstein had subsequently prepared an estimate of impairment dated 20 November 2003 (Exhibit A6). Dr Epstein had made a diagnosis of an adjustment disorder, initially caused by workplace harassment and subsequently aggravated by the applicant’s back injury. He assessed the disorder as mild and treatable. In cross‑examination, Dr Epstein agreed that he had assessed the psychiatric impairment at five per cent and that it was not necessarily permanent. In his opinion, the applicant did not meet the definition of post traumatic stress disorder and that the diagnosis, in his opinion, was depression, a mild adjustment disorder with depressed mood. This had initially emanated from workplace harassment secondary to difficulties adjusting to life in Australia.
24. Dr Epstein had not obtained the applicant’s history of difficulties assimilating into Australian society as being a major factor and had given most weight to the history provided by the applicant which related to workplace harassment and the subsequent back injury. He agreed that, in September 2001, the applicant’s symptomatology had settled and that he felt the applicant no longer needed to see Dr Kochar on a regular basis.
DR N. LEWIS EVIDENCE TO THE TRIBUNAL
25. Dr Lewis had seen the applicant at the request of the respondent on 28 August 2003 and reported on 1 September 2003. In evidence he affirmed that the consultation had taken 90 minutes. Dr Lewis confirmed that there had been no difficulty in communication with the applicant and that, in his opinion, the 90‑minute consultation was sufficient to reach a psychiatric diagnosis. He expressed the opinion that there may have been a communication problem between the applicant and Dr Kochar, given that one was of Ethiopian origin and the other Indian. Dr Lewis also expressed the opinion that he could obtain sufficient information and provide a good assessment in 1½ hours that would be equivalent to another psychiatrist's treatment of a patient over 8 years. Dr Lewis found there was no psychiatric disorder following his consultation with the applicant.
DR I. SALE'S EVIDENCE TO THE TRIBUNAL
26. Dr Sale had provided an opinion at the request of the respondent wherein he found no evidence of any psychiatric disorder (Exhibit R2).
27. Based on Dr Sale's report, liability for any psychological condition was denied by the respondent and the reviewable decision of 17 March 2003 was affirmed.
28. Having reviewed the reports of Dr Epstein and Dr Kochar, in his report to the respondent, dated 14 August 2003, Dr Sale agreed there were longstanding adjustment difficulties present prior to the workplace injury. Dr Sale confirmed his opinion in examination‑in‑chief. In cross‑examination, Dr Sale agreed that the applicant was reticent in delineating his symptoms and his impression was that the applicant was guarded and suspicious with regard to the questions he had posed. Following lengthy cross‑examination, Dr Sale agreed that the applicant had a longstanding adjustment difficulty and, following his back injury, was particularly perturbed by the activities of his rehabilitation advisor. Dr Sale did not disagree that the applicant’s back injury had aggravated his psychological condition. He concluded that there may have been a recurrence of a pre‑existing depressive illness. He also agreed the treating psychiatrist was in a better position to make such a judgment. Re‑examination of Dr Sale did not contribute any further evidence.
RELEVANT LEGISLATION
29. Section 4 and s14(1) of the Act, insofar as relevantly raised here, provide:
4(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
…
impairment means 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.
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.
…
14 (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.
APPLICATION OF THE EVIDENCE TO THE LEGISLATION
30. The only issue remaining for the Tribunal to consider is that of a psychological injury consequent upon the back injury. The applicant had a pre‑existing psychological condition which appears to have been in remission as of September 2001, but became recrudescent following his back injury of November 2001 and was so diagnosed by his treating psychiatrist on re‑presentation in September 2002. While the written reports of four psychiatrists were divided along the lines of those providing opinion for the applicant and for those for the respondent, in oral evidence Dr Kochar, Dr Epstein and Dr Sale agreed to the possibility or probability that the applicant’s pre‑existing adjustment disorder had been aggravated by the back injury of November 2001. In contrast, Dr Lewis denied that this event had any affect on the applicant’s psychological status and reiterated his opinion that there was no psychiatric abnormality.
SUBMISSIONS
31. The applicant submitted that he had suffered from a mild to moderate psychiatric disorder from 1993 and acknowledged this was caused by many factors, but included work‑related discrimination. The latter had not been formally reported to the employer and no claim was made for compensation in the period to September 2001. Between September 2001 and September 2002 the applicant did not seek any psychiatric treatment. In 2001 (until his back injury), he had been much improved. Following the injury on 1 November 2001 and the development of a chronic pain syndrome, the applicant’s psychological status deteriorated and, on the advice of a psychologist involved in his rehabilitation program, he returned to see Dr Kochar, who had treated him between 1993 and September 2001.
32. Three of the four reporting psychiatrists diagnosed the applicant with an adjustment disorder with depression and anxiety. Dr Lewis opined there was no psychiatric disorder. Dr Kochar noted some symptoms of post traumatic stress disorder, but not enough to satisfy the criteria for that disease in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV).
33. The applicant benefited from the treatment given by Dr Kochar, which is appropriate for both depression and chronic pain syndrome.
34. Dr Kochar, Dr Epstein and Dr Sale agreed the work‑related back injury had, or possibly had, aggravated the pre‑existing but, in 2001, quiescent adjustment disorder. The applicant claimed reasonable treatment costs for the psychiatric disorder.
THE RESPONDENT SUBMISSION
35. The respondent submitted that the applicant's psychiatric disorder was pre‑existing and the actual diagnosis of this disorder was in doubt. While Dr Epstein and Dr Sale agreed that there was probably an adjustment disorder, there was no evidence of post traumatic stress disorder, as suggested by Dr Kochar.
36. The respondent conceded the applicant had chronic pain, but submitted that, as the applicant did not have a diagnosable psychiatric condition as opined by Dr Lewis and originally by Dr Sale, an aggravation of this condition by the work injury could not be found on the evidence before the Tribunal.
DECISION
37. Based on the written medical reports and oral evidence, the Tribunal finds that three of the four reporting psychiatrists have made or opined the possibility of the diagnosis of adjustment disorder with anxiety and depression. In evidence before the Tribunal Dr Sale resiled somewhat from his earlier opinion that there was no psychiatric disorder and agreed an adjustment disorder was a possible diagnosis and also that the chronic pain resulting from the back injury could have aggravated his condition.
38. The Tribunal finds that the evidence points to a pre‑existing mild to moderate (probably mild) adjustment disorder which was aggravated by the chronic pain syndrome secondary to the accepted back injury.
39. The decision under review is set aside. The respondent is liable for the costs of medical treatment and medication from September 2002 until the date of this decision.
I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 24 February 2004
16 March 2004
Date of Decision: 5 July 2004
Counsel for the applicant: Mr M. Carey
Solicitors for the applicant: Clark & Toop
Counsel for the respondent: Mr M. Croyle
Solicitors for the respondent: Sparke Helmore
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