Haskett and Comcare

[2005] AATA 1034

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1034

ADMINISTRATIVE APPEALS TRIBUNAL      )

)            No   A2004/157

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM HASKETT

Applicant

And   COMCARE

Respondent

DECISION

Tribunal

  J.W. Constance, Senior Member

  Dr M.D. Miller AO, Member

Date  19 October 2005

Place  Canberra

Decision The decision of Comcare made 8 April 2004 disallowing Mr Haskett’s claim for compensation is affirmed. 

..............................................

CATCHWORDS

COMPENSATION – claims – whether employment materially contributed to depressive condition – whether employment materially contributed to shingles – depressive condition contributed to by various factors – depression was post-viral – shingles not contributed to by stressors associated with employment – injury not compensable – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14

Comcare and Mooi (1996) 69 FCR 439

REASONS FOR DECISION

19 October 2005                   J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

INTRODUCTION

1.Until 2001 Mr Haskett had a very satisfying and successful career in the Australian Public Service. Unfortunately, things started to go wrong for him in about mid 2002 and he started to feel stressed about a number of workplace issues.

2.In March 2003 Mr Haskett suffered a herpes zoster infection, which is commonly known as shingles. This disease is caused by infection with the varicella virus which is experienced by most people as chickenpox in childhood. Once contracted, the virus remains in the spinal cord for life, kept in check by the body’s immune system. If it does not remain in check it causes shingles.

3.Mr Haskett’s recovery from shingles took several months and he was off work for a considerable time. In June 2003 he was diagnosed as suffering from depression. In October 2003 he made a claim for compensation for his incapacity and expenses on the basis that the shingles and the depression were contributed to by his work. Comcare rejected this claim and Mr Haskett is seeking a review of that decision.

4.For the reasons which follow we have decided that the decision of Comcare rejecting the claim should be affirmed.

FACTS

5.The following findings of fact are made on the basis of the evidence of Mr Haskett unless otherwise stated. We are satisfied of these facts on the balance of probabilities.

6.Mr Haskett joined the Australian Public Service in 1990 and worked in various Government departments. In 1996 or 1997 he commenced working at Old Parliament House as a member of a small secretariat to the Board of Directors. His work involved research, writing and secretarial functions. He performed very well in this and previous positions. He was considered to have an outgoing personality by his acquaintances.

7.From mid 2001 onward there were a number of incidents at work which caused Mr Haskett concern. The first was that, without consultation or warning, he was transferred to the staff of the National Portrait Gallery. This position allowed him to continue to work in Old Parliament House but in a different part of the building.  Mr Haskett was not happy about this move. He was given extra duties for which he was not well qualified nor experienced. Later he learned that other staff members were not to be transferred with him and this caused him to feel isolated and that he had been misled by his superiors.

8.In 2002 a database Mr Haskett had prepared for fundraising purposes was ignored. He felt that his work was being disregarded. On other occasions his supervisor spoke to him about a former employee who had successfully transferred to another department, causing Mr Haskett to feel confused and insecure about his job.

9.In September 2002 another incident occurred involving the removal of a dance floor after a function. This caused Mr Haskett to feel that his advice in his role as OH&S Officer was being ignored by others who worked with him. On another occasion, at about the same time, a substantial sponsorship that he had arranged was not acknowledged, causing him to feel overlooked and to believe that his work was not valued by his employer.

10.Mr Haskett did not raise these issues with his employer as he did not feel sufficiently comfortable to do so. He did speak to family members and to friends about his concerns but did not seek medical assistance in relation to any of the problems he was experiencing. He felt that to admit to feeling stressed was a bad thing to do as an employee in the Public Service.

11.From about November 2002 Mr Haskett experienced difficulty sleeping. He felt tired and emotional and at times was tearful and lacked concentration. He became lethargic and did not socialize to the same extent as he had previously.

12.Ms Haskett, Mr Haskett’s sister and a Social Worker, gave evidence. She confirmed that in June 2001 Mr Haskett first spoke to her concerning difficulties he was having at work and in particular concerning his transfer to the National Portrait Gallery. At Christmas 2001 and throughout 2002 she spoke to Mr Haskett on a number of occasions and by September 2002 she was sufficiently concerned as to his condition to suggest that he consult a doctor. She described Mr Haskett as being withdrawn, bitter and morose. Ms Haskett was of the opinion that Mr Haskett was suffering from stress.

13.Mr Fox also gave evidence. He was a member of staff at Old Parliament House senior to Mr Haskett and had been his direct supervisor from October 1997 to February 1999. In a statement attached to  Mr Haskett’s claim form[1] Mr Fox  said that:

“Mr Haskett approached me on several occasions in person and via telephone throughout 2002 and early 2003 regarding his work environment and his deteriorating mental condition, particularly in relation to statements made to him by senior staff of the National Portrait Gallery. Whilst no longer his immediate supervisor, I sought to counsel Bill, as a valued work colleague and friend. It became clear that the messages communicated to him regarding his position at the Gallery were having a serious impact on his condition and work performance. By 2003, Bill was introverted, unsociable and difficult to engage.”

[1] S. 37 doc. T17B.

Mr Fox confirmed this view when giving his evidence. He said that whilst he was concerned as to Mr Haskett’s condition and spoke to him about it, he did not consider raising it with anyone else as he regarded it as a confidential matter.

14.At a meeting of the Board of the National Portrait Gallery (of which Mr Haskett was the secretary) held on 14 March 2003, the Deputy Chairman commented that minutes prepared by Mr Haskett were of very poor quality. Previously Mr Haskett’s work had been of a high standard. A few hours later Mr Haskett suffered a severe pain in his right jaw. He left work and later that day developed a rash on his left arm, shoulder and neck. He was diagnosed as suffering from shingles

15.Mr Haskett was off work until 10 February 2004 when he commenced a graduated return to work programme. He began full-time work on 19 April 2004. He was bed-ridden for most of the first three months he was not working and felt depressed.  Mr Haskett was not diagnosed as suffering from depression until June 2003.

16.On 28 October 2003 Mr Haskett lodged a claim for “depression/shingles caused by stress.” [2]  This claim has been rejected by Comcare and Mr Haskett is now seeking a review of this decision.

[2] Ex. A15.

ISSUES

17.The issues for determination are:

A.was the depression suffered by  Mr Haskett contributed to in a material degree by his employment? and

B.was the shingles suffered by Mr Haskett contributed to in a material degree by his employment?

STATUTORY BACKGROUND

18.Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides that Comcare is liable to pay compensation for an injury which results in incapacity for work. “Injury” includes a “disease”  and “disease”  is defined as:

“(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”. [3]

[3] S. 4.

REASONING

A. Was the depression suffered by Mr Haskett contributed to in a material degree by his employment?

19.Comcare does not dispute that after  Mr Haskett  ceased work on 14 February 2003 he suffered from  depression which would be an injury under the Act if it was determined that the depression was contributed to in a material degree by Mr Haskett’s employment. Comcare argues that prior to the onset of shingles Mr Haskett was suffering no more than the everyday stresses of the workplace and did not suffer from “a condition that is outside the boundaries of normal mental functioning and behaviour” : Comcare v Mooi  (1996) 69 FCR 439 at 444.

Medical evidence

20.Dr Ragg has been Mr Haskett’s general practitioner since November 2000. He gave evidence and we make the following findings based on his evidence.

21.Mr Haskett did not consult Dr Ragg between the end of November 2000 and 3 February 2003.[4] In March 2003 Mr Haskett consulted Dr Ragg in relation to the shingles and on 6 March 2003 Dr Ragg noted “increasing exhaustion & lethargy for 3/12”. [5] On 16 May 2003 there was a notation of “some depression and anxiety.”   Mr Haskett continued to consult Dr Ragg in relation to depression for several months. By 27 October 2003 Dr Ragg diagnosed Mr Haskett as suffering from  “DSM IV 296.2 major depressive disorder.” [6]

[4] Ex. A3.

[5] Ex. A3.

[6] Ex. A15.

22.In giving evidence Dr Ragg said that Mr Haskett first told him in mid May 2003 that previously he had been feeling stressed at his work. In Dr Ragg’s opinion the stress at work contributed to Mr Haskett’s depression.

23.Dr Ragg’s diagnosis of major depression was confirmed by Dr Feltham, Medical Assessor with Corporate Medical Options. This was in a report of 24 August 2003 to Mr Haskett’s Rehabilitation Case Manager.[7] Dr Feltham assessed Mr Haskett on 21 August 2003.  Dr Feltham was of the opinion that the depression was possibly complicating a post-viral syndrome and that the sort of depression that can be triggered by such a syndrome can be quite profound.

[7] Ex. A10.

24.Mr Haskett was assessed by Dr Knox, Consultant Psychiatrist, on 6 April 2004 at the request of Mr Haskett’s solicitors. In his report of 6 April 2004 [8] Dr Knox expressed the opinion that Mr Haskett began to suffer from a diagnosable level of depression in late 2002 and that his work environment contributed to the deterioration in his mental health. Dr Knox confirmed this opinion when giving evidence. Dr Knox did take into account other stressful events experienced by Mr Haskett but was of the view that they were unlikely to have been major trigger events in respect of his depression. These events, which were confirmed by Mr Haskett in his evidence, were his separation from his wife and daughter and subsequent divorce and property settlement and the death of 2 elderly relatives to whom he was very close.

[8] Ex. A12.

25.Dr Donsworth, Consultant Psychiatrist, assessed Mr Haskett on 2 July 2004 at the request of Comcare’s solicitors. She gave evidence and confirmed the contents of her reports of 28 August 2004 [9] and 4 February 2005. [10]

[9] Ex. R6.

[10] Ex. R7.

26.It is Dr Donsworth’s opinion that  Mr Haskett suffered post-viral depression as a direct result of the shingles. She accepts that Mr Haskett stated that he felt stressed during 2002 and early 2003 but is of the opinion that “there is no objective evidence that he was suffering from any diagnosable psychiatric condition during this time.” [11]

[11] Ex. R7.

Finding

27.Having considered all of the evidence we are satisfied on the balance of probabilities that Mr Haskett’s employment did not contribute directly to his depression. Later in these reasons we will consider the argument that Mr Haskett’s employment contributed to the outbreak of shingles which then in turn caused the depression.

28.In reaching our conclusion we preferred the evidence of Dr Donsworth as she has undertaken and provided to us the most detailed analysis of the various factors which may have contributed to Mr Haskett’s condition. We have taken into account the following matters particularly referred to by Dr Donsworth:

·     there were other stressful events in Mr Haskett’s life with which he had apparently coped without suffering depression;

·     Mr Haskett did not seek any medical assistance for the stress he suffered prior to the onset of shingles;

·     there is nothing to suggest that the stress arising from his workplace was serious enough to affect his relationship with his new partner;

·     Mr Haskett was reluctant to return to work but coped well when he did;

·     Mr Haskett’s reporting to Ms Howe in July 2003 that a number of non-work related factors contributed to how he felt and that there was “no harassment at work, just can’t keep up any more.” [12]

[12] Ex. R1.

29.In our view the depression suffered by Mr Haskett was post-viral depression consequent upon the herpes zoster infection.

B. Was the shingles suffered by Mr Haskett contributed to in a material degree by his employment?

30.As we are satisfied that the depression was post-viral, if Mr Haskett’s employment made a material contribution to the outbreak of shingles it follows that the shingles and the consequent depression are compensable.

Medical evidence

31.Counsel has referred us to extensive literature on the possibility of a link between stress and the onset of herpes zoster. This literature establishes that there is support for views both for and against this proposition. It satisfies us that there is still considerable debate in the medical profession on this issue.

32.Whilst a number of the medical practitioners who gave evidence have expressed their opinions on the question we regard the evidence of the two specialists in the field of infectious diseases as crucial. They have specialist knowledge not available to the other practitioners.

33.Dr Watson, Senior Specialist Infectious Diseases, gave evidence on behalf of Comcare. He had considered reports relating to Mr Haskett and was aware of the extensive literature on herpes zoster. In his report of 12 January 2005[13] Dr Watson stated:

“In most cases of herpes zoster it is not known what precipitates an attack. Although ‘stress’ is often invoked as a precipitant, this can be rarely proven in individual cases. Most people are subjected to a certain amount of stress in their lives….[t]he only factors that clearly precipitate shingles are immune suppression and advancing age. Immune suppression is largely limited to clearly defined conditions of immune deficiency, such as HIV infection and cancer chemotherapy….[t]here is no evidence that an undifferentiated state of ‘stress’ precipitates herpes zoster. Whilst it is plausible that stress may precipitate herpes zoster, it is very difficult to quantify stress retrospectively….[i]t cannot be said with any degree of confidence that the applicant’s employment contributed to his herpes zoster occurring.”

[13] Ex. R8.

34. On behalf of Mr Haskett Professor Lloyd, Professor of Medicine and Consultant Infectious Diseases Physician, was asked to report as to whether  “an otherwise healthy individual might be more likely to experience an episode of shingles, if he was subjected to significant emotional stress.” [14]  Professor Lloyd reported that:

“…it is well recognised that in circumstances of profound immune suppression (HIV infection, transplant recipients on immuno-suppressive medication) that the incidence of shingles is markedly increased above that of the healthy population….[w]hat is less clear is whether other factors which are believed to influence the immune system in a more subtle fashion, can impact on immune surveillance to a degree sufficient to increase the risk of shingles. Although popular in the non-scientific press, the evidence that emotional stress significantly alters immunity is scant….[n]evertheless, there are recent data which provide tentative support for the likelihood of a link between chronic psychosocial stressors and risk of shingles….[o]n balance, therefore it is reasonable to suggest that severe and prolonged psychosocial stressors in vulnerable individuals (i.e. those who respond with high levels of induced anxiety) may be associated with a modest increase in the risk of shingles.” [15]

[14] Ex. A17.

[15] Ex. A17.

35.In giving evidence Professor Lloyd maintained that there is a link between psycho-social stressors and a reduction in cell-mediated immunity and that it is clear that the latter can cause a breakout in herpes zoster. However in cross-examination the Professor said that he was not familiar with the detail of  Mr Haskett’s case and that it was not sensible for him to comment on the degree and level of stress he had suffered.

Finding

36.On the basis of the evidence of Dr Watson and Professor Lloyd we are not satisfied that such stress as  Mr Haskett may have suffered in his employment caused the outbreak of herpes zoster and it follows that we are not satisfied that his employment contributed to the disease. Dr Watson was firm in his view that on the basis of current medical knowledge, the link has not been established. Professor Lloyd does not really dispute this. He only claimed that there was “tentative support” for the likelihood of a link between chronic psychosocial stressors and the risk of herpes zoster. Even if we were to accept that this principle was established (which we do not) we do not have evidence before us to support a finding that the stressors  Mr Haskett suffered at work were chronic.

37.We are not satisfied that the herpes zoster condition suffered by  Mr Haskett was contributed to in a material degree by his employment.

DECISION

38.The decision of Comcare made 8 April 2004 disallowing Mr Haskett’s claim for compensation is affirmed. 

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member

Signed: .........................................................................

Associate (Melanie Wade)

Date/s of Hearing                       15 & 19 July 2005, 2 September 2005
Date of Decision  19 October 2005
Counsel for the Applicant           David Richards
Solicitor for the Applicant           Slater & Gordon

Counsel for the Respondent     Lorraine Walker

Solicitor for the Respondent      Australian Government Solicitor