Hatzigiakoumi and Comcare
[2010] AATA 1016
•16 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1016
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0783
GENERAL ADMINISTRATIVE DIVISION ) Re JACK HATZIGIAKOUMI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Miss E A Shanahan Date16 December 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(Sgd) E A Shanahan
Member
WORKERS’ COMPENSATION – accepted liability for a depressive disorder – failure to obtain promotion – alleged breach of the Code of Conduct – retirement on invalidity grounds – claim for permanent impairment and non-economic loss – reasonable administrative action – depression of multi-factorial aetiology – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s24, s5A, s5B
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Hart v Comcare (2005) 87 ALD 341
REASONS FOR DECISION
16 December 2010 Miss E A Shanahan, Member 1. Mr Hatzigiakoumi suffered a compensable injury on 24 April 2003. Comcare accepted liability for the injury on 25 June 2003. Mr Hatzigiakoumi lodged a claim for compensation for permanent impairment on 4 February 2009. A delegate of Comcare rejected the permanent impairment claim on 22 July 2009. ,
2. Comcare reviewed that determination and affirmed it on 22 December 2009 (the reviewable decision). Comcare accepted that Mr Hatzigiakoumi suffered from a severe, disabling and permanent psychiatric condition but found that this was not related to the compensable event of 24 April 2003. Based on the preferred medical opinions, the Comcare delegate attributed the disabling aggravation of Mr Hatzigiakoumi’s long-standing major depression to his failure to obtain a promotion in December 2006 (T 52).
3. Mr Hatzigiakoumi applied to the Administrative Appeals Tribunal (the Tribunal) for review of the reviewable decision on 25 February 2010.
4. The Tribunal was provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents, Exhibit R1). The parties tendered the following documents:
The Applicant
·Dr Peter Millington’s report dated 10 October 2010 – Exhibit A1
·a letter from Comcare to Mr Hatzigiakoumi dated 8 June 2010 – Exhibit A2
·a certificate from Dr Middleton dated 30 June 2010 – Exhibit A3; and
The Respondent
·the report of Dr Nigel Strauss dated 13 July 2010 – Exhibit R2
·a computer printout of Mr Hatzigiakoumi’s leave between 27 February 2003 and 2 November 2007 – Exhibit R3
·the report of Dr Millington dated 13 November 2007 – Exhibit R4
·a letter from Mr John Lynch dated 10 September 2007 addressed to Miss S Haddad – Exhibit R5
·an email dated 15 October 2007 from Miss Haddad to Mr Hatzigiakoumi – Exhibit R6
·Ms Haddad’s letter to Mr Hatzigiakoumi dated 15 October 2007 in reference to alleged breaches of the Code of Ethics – Exhibit R7
The Tribunal also had access to the summonsed records of Dr Anderson and Dr Millington and the enquiry into Mr Hatzigiakoumi’s alleged breach of the Code of Conduct.
5. Mr Hatzigiakoumi represented himself. Mr John Wallace of counsel, instructed by the Australian Government Solicitor, appeared on behalf of Comcare. Mr Hatzigiakoumi and Dr Nigel Strauss gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
6. . Mr Hatzigiakoumi was diagnosed as HIV positive in February 1991. Understandably, he developed symptoms of depression following this diagnosis. He believes he contracted the viral infection in 1983. He required psychiatric counselling (by Dr Jeff Lipp) and anti-depressant medication for six to seven years. From 1994 he attended his general practitioner, Dr Anderson. He commenced anti-depressive therapy in the form of Prothiaden in 2002, having failed to commence this medication when it was first prescribed in June 2000. Cipramil was substituted for the Prothiaden in March 2003 as, according to the Carlton Clinic notes (page 52), Mr Hatzigiakoumi’s depression was deepening and he was managing to go to work but only just managing. The records show that the increase in Mr Hatzigiakoumi's symptoms of depression was attributed to stress at work, money problems and issues with his partner Robert.
7. Mr Hatzigiakoumi commenced work as a social worker with the Department of Foreign Affairs and Trade (DFAT) subsidiaries on 21 January 1985. He commenced employment with the Migration Review Tribunal (MRT) on 2 August 1993. Following the administrative merger of the MRT and Refugee Review Tribunal (RFT) his duties related primarily to the refugee area.
8. On 24 April 2003, Mr Hatzigiakoumi's supervisor, Mr Chris Corrigan, informed him that the RRT had received a letter containing death threats directed at Mr Hatzigiakoumi and two other employees. Mr Hatzigiakoumi became agitated and unable to attend work. Dr Anderson increased the dosage of Cipramil. Subsequently, Dr Anderson added Avanza, another antidepressant, to the treatment regimé. Dr Anderson referred Mr Hatzigiakoumi first to the Crisis Assessment and Treatment team and then to Dr Peter Millington, psychiatrist. Mr Hatzigiakoumi remains under Dr Millington's care.
9. This incident led to the claim for compensation for aggravated depression lodged on 7 May 2003. Mr Hatzigiakoumi did not reveal his pre-existing depressive disorder in this claim.
10. On 14 April 2004 Mr Hatzigiakoumi was appointed as the Acting Assistant Director of The Country Research and Library section, with a staff of four. In addition, he continued to perform his substantive role as the APS 6 Team Leader in the section.
11. Mr Hatzigiakoumi applied for the permanent Assistant Director position in November 2006 and was interviewed on 14 December 2006. He was not appointed. Mr Chris McDonald notified him of his failure to obtain the position by telephone. Mr McDonald reported that Mr Hatzigiakoumi had become upset and regarded the appointment process as unfair.
12. In his evidence, Mr Hatzigiakoumi acknowledged that he was upset and stressed and that his depression was aggravated by his failure to obtain the position but insisted that this was a temporary aggravation only. Nevertheless, he consulted Dr Millington on 5 January 2007 with extreme anxiety and an increase in his depressed mood. He was then absent from work on sick leave from 5 January 2007 to 21 January 2007 and from 5 February 2007 to 5 March 2007. Mr Hatzigiakoumi had last seen Dr Millington in October 2006, at which time he was described by Dr Millington as well and maintaining a stable situation on an unchanged dose of Prothiaden. Mr Hatzigiakoumi had seen Dr Millington every three months throughout 2006.
13. Between 8 January 2007 and 2 November 2007, Mr Hatzigiakoumi was absent on sick leave for 93 days and on recreation leave for 19 days. By comparison, in 2006 he had taken 10 days of sick leave and 20 days of recreation leave (R3). His visits to Dr Millington increased to almost weekly for a period of six months commencing 5 January 2007. From July onwards, his visits were reduced to once per fortnight. Between February and September 2007 Mr Hatzigiakoumi was on a graduated return to work programme.
14. On 10 September 2007, Mr John Lynch, the Registrar of the MRT‑RRT appointed Ms S Haadad, the Tribunal's Director of Legal Services, to investigate and report into a possible breach of the Australian Public Service (APS) Code of Conduct by Mr Hatzigiakoumi (R5). Ms Haadad was to report by 22 October 2007. The alleged breaches were said to have occurred between January and December 2006. They involved the plagiarism and falsification of Commonwealth records, namely, MRT‑RRT research responses and related records, resulting in false and misleading statistical data being reported in response to bogus research requests on at least six occasions (R7).
15. Following a face-to-face discussion with Mr John Lynch, in relation to the alleged breaches of the Code of Conduct, Mr Hatzigiakoumi ceased work and has never returned. On 13 November 2007 Dr Millington advised Comcare that Mr Hatzigiakoumi should be considered for retirement on the grounds of invalidity. The disciplinary action was suspended on 19 December 2007 while Mr Hatzigiakoumi's capacity for work was assessed by Dr Gras. Formal retirement occurred on 19 March 2008. Further investigation of the alleged breaches of the Code of Conduct was then discontinued. Mr Hatzigiakoumi had denied the allegations at all times and attributed the plagiarised documents to other members of his team, who, he said, wanted to have him fired. The investigations, albeit incomplete, did not substantiate his accusations regarding his co-workers.
16. In February 2007 Mr Hatzigiakoumi was diagnosed with diabetes mellitus type II. After investigation at the Alfred Hospital, the diabetes was attributed to abdominal lipodystrophy (excessive intra-abdominal fat) due to his HIV infection and his retroviral and anti-depressive medication. He attended the endocrinology clinic for one year but has now stopped. He measures his bloods sugar levels (BSL) at home occasionally.
17. In July 2007 Dr Millington added lithium to Mr Hatzigiakoumi’s medications. From November 2007 onwards Mr Hatzigiakoumi carried a knife on his person for protection.
18. From early 2008 onward, Mr Hatzigiakoumi's depression deepened to the extent that he neglected to shower and dress, spent much of the day in bed, frequently ceased taking all his medication and went on spending sprees. He has exhausted all his savings and cashed in his share portfolio to meet his debts.
19. Mr Hatzigiakoumi experienced additional stressors in 20092010. They were his partner's ill-health, the need for electro-convulsive therapy and Mr Hatzigiakoumi's anxiety regarding his application to the Tribunal. Dr Millington's notes recorded that Mr Hatzigiakoumi became suicidal after participating in a directions hearing at the Tribunal. This Tribunal reminded him of the MRT-RRT as the décor and furnishings were very similar.
EVIDENCE GIVEN BEFORE THE TRIBUNAL.
20. Mr Hatzigiakoumi made an opening address to the Tribunal contending that his deteriorating psychiatric status stemmed from the compensable injury of April 2003 (the death threat) and an excessive work load. He said that any effect of his failure to gain the promotion in 2006 had been a temporary aggravation of his depression, which had worsened prior to that event.
21. Mr Hatzigiakoumi perceived Comcare's action in continuing to pay his medical expenses as an acceptance of liability. He criticised Comcare's process and decision-making, particularly its letters of instruction to Doctors Sheehan and Strauss; the weighting of reports and the apparent dismissal of the opinions of five doctors who supported his claim.
22. Most of Mr Hatzigiakoumi's evidence is summarised under BACKGROUND TO THE APPLICATION. In his oral evidence, he was unable to confirm the dates of many events put to him by Mr Wallace under cross-examination. Mr Hatzigiakoumi's memory was poor on the day, as he had taken 15mg of Valium on the morning of the hearing to allay his anxiety. He claimed he could not remember being depressed prior to 2003.
23. Mr Hatzigiakoumi described himself as an occasional and not a chronic user of cannabis, as suggested in Dr Anderson's clinical notes.
24. Mr Hatzigiakoumi agreed he had not told Dr Millington or Dr Sheehan of his pre-April 2003 diagnosis of depression. He assumed the letters of referral would have contained this information.
DR STRAUSS, PSYCHIATRIST
25. Dr Strauss assessed Mr Hatzigiakoumi at Comcare's request. In his report of 13 July 2010 (R2) Dr Strauss recorded that Mr Hatzigiakoumi could not remember having any psychiatric problems between 1990 and 2003. Nor could he remember any problems in his relationship with Robert, his partner. Otherwise, the history Mr Hatzigiakoumi gave him was similar to that recorded in Dr Anderson’s and Dr Millington's notes and recounted under BACKGROUND TO THE APPLICATION. Dr Strauss had been provided with copies of those medical records and the reports of Doctors Millington, Gras, Smith, Sheehan and Weissman.
26. Dr Strauss confirmed the diagnosis of permanent major depression with a 25 per cent psychiatric impairment. He considered that the death threat of April 2003 had aggravated a pre-existing depressive disorder arising from endogenous factors and the diagnosis of HIV infection. This aggravation had resolved, until Mr Hatzigiakoumi failed to gain promotion in 2006. Dr Strauss attributed 75 per cent of Mr Hatzigiakoumi's depression to the failure to gain promotion and the other 25 per cent to be endogenous and due to personal factors.
27. In his oral evidence, Dr Strauss identified the nature and strength of the psychotropic drugs prescribed to Mr Hatzigiakoumi over the years and the psychologically deleterious affects of cannabis, which itself can cause depression.
28. Dr Strauss remained of the opinion that Mr Hatzigiakoumi's failure to obtain the promotion in 2006 was the major factor in his depression but allowed that it was perhaps less than 75 per cent. He maintained that the Code of Conduct breach enquiry was significant given its temporal association with Mr Hatzigiakoumi ceasing work and deteriorating further.
29. Mr Hatzigiakoumi's cross-examination of Dr Strauss related to the events the doctor had taken into consideration in forming his opinion. Dr Strauss replied that he had relied on the history he had given, the clinical notes of Doctors Anderson and Millington and the other psychiatrists' reports, which had included his medication, the death threat, his failing to obtain promotion and the effect of the Code of Conduct enquiry. He said that Mr Hatzigiakoumi's high functioning level in 2005 was attributable to his anti-depressant treatment and was reflected in a decrease in sick leave taken, compared to 2003 and 2007. Dr Strauss attributed the difference in psychiatric reports and opinions to the histories given to, and the information available to, each of the medical experts.
30. The cross-examination was delayed temporarily when Mr Hatzigiakoumi produced the knife he says he carries for protection. He did so to make a point and not as a threat to any person in the hearing room The Tribunal member confiscated the knife, warned Mr Hatzigiakoumi of the illegality of this practice and the penalties it could attract. The knife was returned to Mr Hatzigiakoumi after the hearing was completed.
DOCUMENTARY EVIDENCE
clinical records of doctors millington and anderson
31. Dr Millington’s and Dr Anderson's clinical notes are referred to and summarised under BACKGROUND TO THE APPLICATION. They provide a contemporaneous record of the fluctuations in Mr Hatzigiakoumi's depressive disorder. Dr Millington's records commence on 19 May 2003 and Dr Anderson's records commence in April 1994. Dr Anderson first recorded psychological symptoms in 1994 and noted that Mr Hatzigiakoumi was attending Dr Jeff Lipp, psychiatrist, in November 1995. Dr Anderson prescribed treatment with the anti-depressant Aropax. Prothiaden was substituted for Aropax in May 1996 and continued until late 1997. Prothiaden was prescribed in 2000 but Mr Hatzigiakoumi did not take it. From 1994 onwards, Mr Hatzigiakoumi regularly took the sedatives Temazepam and (later) Stilnox.
32. On 9 December 2002 Dr Richard Moore (General Practitioner at the Carlton Clinic) recorded: Depression getting worse over the last few months, difficulties with partner, work problematic, script written – Zoloft 100mg. On 26 March 2003 Dr Anderson recorded: Work related stress, issues with partner, money problems and feels bleak and no future, end of life.
33. In 2006 and 2007 there are very few entries regarding depressive symptoms in Dr Anderson's clinical records but such entries are numerous in Dr Millington's notes, commencing on 5 January 2007.
DR SHEEHAN
34. Dr Sheehan provided a report dated 15 March 2007 diagnosing a chronic major depressive disorder with a recent exacerbation. The primary diagnosis was attributed to the death threat of 2003 and the aggravation to a four-fold increase in Mr Hatzigiakoumi's workload during 2006, the lack of managerial support and verbal abuse in the workplace. Based on the history given by Mr Hatzigiakoumi, Dr Sheehan considered that his employment had contributed to a significant but transient degree; transient in that a response to treatment was anticipated.
35. Dr Sheehan reassessed Mr Hatzigiakoumi in July 2009 (T49, p230). On this occasion, he was provided with the reports of Dr Millington and thereby learned of Mr Hatzigiakoumi's long history of depression, his recovering from the 2003 episode by 2005, and the relapse occurring in December 2006, after Mr Hatzigiakoumi failed to gain a promotion. Mr Hatzigiakoumi provided the further history of his retirement on the grounds of invalidity and his continuing depressive state. Dr Sheehan revised his opinion and attributed what was now a chronic depressive state resulting in permanent total occupational incapacity to Mr Hatzigiakoumi's failure to gain promotion. His current state, he said, was in no way contributed to by the 2003 compensable event.
DR MILLINGTON
36. Dr Millington was not called to give evidence. He had provided frequent reports on Mr Hatzigiakoumi's progress to Dr Anderson and Comcare, as well as letters of clarification requested by Mr Hatzigiakoumi. In his report of 10 October 2010 (A1), Dr Millington answered a series of questions posed by Mr Hatzigiakoumi. Dr Millington maintained his opinion that Mr Hatzigiakoumi's major depressive disorder began in 2003 and was precipitated by death threats at work and poor management practices in the MRT-RRT. He considered Mr Hatzigiakoumi's treatment between 2003 and 2007 had been successful in controlling depressive symptoms but had not cured the condition. Any cessation of medication had resulted in a return of depressive symptoms.
37. Although during this period Dr Millington had described Mr Hatzigiakoumi as being well, this wellness related to Mr Hatzigiakoumi's level of functioning, which in this period was effective. Dr Millington highlighted Mr Hatzigiakoumi's continuing sleep disturbance in 2006, which he interpreted as a sign of residual depression. The failure of Mr Hatzigiakoumi to gain the promotion had lead to a temporary aggravation of his depressive disorder and was not the cause of a new disease. Dr Millington did not address the enquiry into the alleged breach of the Code of Conduct. Since 2007 Mr Hatzigiakoumi has experienced continuous depressive symptoms, which fluctuate. However, he has never completely returned to his pre-morbid state.
DR GRAS (t36, p159)
38. Dr Gras was requested by the MRT-RRT to conduct an occupational health assessment of Mr Hatzigiakoumi. He reported on 26 November 2007, confirming the diagnosis of a depressive disorder commencing in the 1990s and characterised by marked episodes of increased symptoms in 2003, 2005 and 2006. He found Mr Hatzigiakoumi totally incapacitated for work and believed this incapacity could well be permanent.
39. Dr Gras advised that an independent psychiatric opinion should be obtained and arranged for Mr Hatzigiakoumi to be seen by Dr Peter Smith, psychiatrist.
DR SMITH (t37, p166)
40. Dr Smith saw Mr Hatzigiakoumi on 29 November 2007. Mr Hatzigiakoumi gave him a history which included depressive symptoms in the early 1990s requiring treatment but undergoing a full remission after three to four years. Mr Hatzigiakoumi attributed his current depression to the 2003 death threat and an excessively heavy workload in 2006. However, he did not mention his failure to obtain the promotion or the enquiry into the alleged breaches of the Code of Conduct. Dr Smith considered Mr Hatzigiakoumi's prognosis to be poor, his occupational incapacity to be total and he advised retirement on the grounds of invalidity.
DR WEISSMAN (t39, p176)
41. Dr Weissman's opinion was sought by Mr Hatzigiakoumi's former legal representative. He saw Mr Hatzigiakoumi and reported on 8 May 2008.He was provided with Dr Millington's clinical records and reports and Dr Sheehan's report. Mr Hatzigiakoumi gave him a history of a three-year period of depression following his diagnosis of HIV infection (recorded as being from 1985 to 1988), for which he was treated by the late Dr Lipp. Between 1988 and 2003 Mr Hatzigiakoumi said he was well. He attributed his depressive disorder to the 2003 death threat with symptoms becoming profound and disabling in 2006-2007. Mr Hatzigiakoumi informed Dr Weissman of the December 2006 failure to gain a promotion but described this as a disappointment lasting for a period of two weeks. Dr Weissman confirmed the diagnosis of a chronic major depressive disorder and attributed this condition to Mr Hatzigiakoumi's employment with the RRT-MRT. The level of psychiatric impairment was assessed at 25 per cent.
CODE OF CONDUCT ENQUIRY
42. The Tribunal was provided with the record of the enquiry into the alleged breach of the Code of Conduct by Mr Hatzigiakoumi.
RELEVANT LEGISLATION
43. Section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) relates to compensation for injuries resulting in permanent impairment and states:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
. . .
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage
Section 5A of the Act defines injury in the following terms:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
44. Section 5B of the Act concerns the definition of disease as being:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
SUBMISSIONS
45. Mr Wallace addressed the amendments to the Act which were effective from 13 April 2007 and which imposed a higher test of injury/disease causation. The contributions by employment have to be of a significant degree rather than a material contribution. Comcare had accepted liability for Mr Hatzigiakoumi's injury for 24 April 2003 based on a material contribution by his employment to the depressive disorder. He identified the issue to be determined by the Tribunal as whether the injury of 24 April 2003 had resulted in permanent impairment and if so, when the impairment became permanent.
46. Mr Wallace pointed out that Mr Hatzigiakoumi's sick leave record showed a decrease in sick leave taken in 2005, with an increase from 5 January 2007, 14 days after he had been advised of his failure to gain a promotion and the record also showed a total inability for work from the initiation of the investigation into the alleged breaches of the APS Code of Conduct. He said the changes in Mr Hatzigiakoumi's depressive state were also reflected in the level of medication prescribed and Mr Hatzigiakoumi's psychological status as reported in Dr Millington's clinical records.
47. Mr Wallace submitted that the difference in the opinions of Doctors Strauss and Sheehan on the one hand and the opinions of Doctors Gras, Smith and Weissman on the other hand arose from the completeness of the clinical history provided to them respectively by Mr Hatzigiakoumi and the availability of the treating doctors’ clinical notes. Mr Hatzigiakoumi had not provided a full and accurate history to most practitioners. Dr Strauss had a more complete history relating to Mr Hatzigiakoumi's pre-2003 psychological status.
48. Relying on Dr Strauss's report, Mr Wallace contended that Mr Hatzigiakoumi would probably not be entitled to compensation under s 14 and s 16 of the amended Act. Comcare has continued to pay Mr Hatzigiakoumi's medical costs as it was not aware of Mr Hatzigiakoumi's pre-2003 depressive state until after he had lodged his application for review with the AAT on 24 February 2010. Mr Wallace said it was not Comcare's intention to seek reimbursement of medical costs for treatment delivered up to the time of this Tribunal's decision.
49. Mr Wallace argued that should the Tribunal find that Mr Hatzigiakoumi's permanent impairment was contributed to by his failure to obtain the promotion and the investigation of the alleged breach of the Code of Conduct, the Tribunal would be bound by the Full Federal Court decision in Hart v Comcare (2005) 87 ALD 341 (Hart) and must affirm Comcare's decision denying liability for Mr Hatzigiakoumi's permanent impairment.
50. Mr Hatzigiakoumi maintained his argument that his major depressive disorder was due solely to the death threat of 24 April 2003 and that Comcare's action in continuing to pay his medical expenses was an acceptance of liability. On his calculations, the medical costs paid by Comcare to the date of the hearing totalled $67,000.
51. Mr Hatzigiakoumi denied withholding information from any of the reporting doctors on purpose and attributed any omissions or errors in the histories that he gave them to his poor memory.
52. Mr Hatzigiakoumi contended that Comcare had been selective in its reliance on certain medical experts in making its determinations and the decision regarding permanent impairment. Additionally, Comcare had influenced Dr Strauss and Dr Sheehan by providing other medical data and posing questions relating to the effect of his failure to gain promotion in 2006.
53. Mr Wallace, in response, noted that Mr Hatzigiakoumi had not argued that the Code of Conduct breach investigation was unreasonable.
THE TRIBUNAL'S DELIBERATIONS
54. It is clear that Mr Hatzigiakoumi is suffering from a severe, incapacitating and permanent major depressive disorder. The question for the Tribunal is whether this results from the compensable event of 2003 or is due totally, or in part, to other non- compensable circumstances and events such as his pre-existing depressive illness, the aggravation of this condition in 2003 or his failure to gain a promotion in 2006 and the Code of Conduct investigation of 2007.
55. The Tribunal has relied primarily on the contemporaneous clinical records of Doctors Anderson and Millington. Mr Hatzigiakoumi's first attendance upon Dr Anderson was related to his sleep disturbance. The use of sedatives was only partially successful and problems with disturbed sleep remain a major ongoing symptom.
56. Mr Hatzigiakoumi was diagnosed with depression in September 1995 and Mr Hatzigiakoumi then revealed that he was already seeing Dr Lipp. He was prescribed and took anti-depressant medication until late 1997. Mr Hatzigiakoumi's depressive symptoms relapsed in 2000 but he did not take the Prothiaden then prescribed. He commenced this medication in December 2002.
57. This pattern of fluctuating symptoms persisted until September 2007, with episodes of major depression rendering him temporarily incapacitated for work in 2003, August 2005 and January 2007. The episode in 2005 was short-lived. The episodes of 2003 and early 2007 were of greater duration. Multiple stressors have been identified by the treating doctors, with work issues, Mr Hatzigiakoumi's physical ill-health, his personal problems relating to his partner and financial difficulties predominating.
58. Until September 2007 Mr Hatzigiakoumi responded to psychiatric treatment and improved to a level where he functioned, in terms of his work, at an effective level. While Mr Hatzigiakoumi took more days of sick leave in 2007, he returned to work on a graduated programme between May and August 2007. Dr Millington’s clinical notes record that Mr Hatzigiakoumi coped with the programme and progressively increased his hours of work.
59. In his report of 10 October 2010, Dr Millington succinctly encapsulated Mr Hatzigiakoumi's psychiatric status, at least since May 2003 as:
Mr Hatzigiakoumi is suffering from a major depressive disorder, recurrent, severe without psychotic features. He remains depressed and, although at times he has felt relatively happy with his condition, he has not returned to his pre-morbid level of functioning and he has not been over the last three years without depressive symptoms. These symptoms have indeed fluctuated over the time but over the last three years he's not completely recovered to his pre-morbid state.
60. Dr Millington also stated that at no time had Mr Hatzigiakoumi been cured of his depression, a cure being considered as the patient being free of symptoms after the cessation of all psychotropic medication. In Mr Hatzigiakoumi's case, each time he stopped his anti-depressant medication his symptoms recurred or escalated. Dr Millington had considered Mr Hatzigiakoumi to be doing well when his symptoms were minor and his functioning back to the pre-morbid level. He rejected the argument that the effects of the 2003 death threat had completely resolved by mid-2006, as Mr Hatzigiakoumi's sleep disturbance, considered by Dr Millington to be a symptom of depression, had persisted. As Dr Millington was firmly of the opinion that Mr Hatzigiakoumi's depressive illness was caused by the death threat of 23 April 2003, he did not address Mr Hatzigiakoumi's pre-2003 psychiatric status.
61. The opinions of Doctors Weissman, Smith, Gras and the opinion of Dr Sheehan in his 2007 report, and to an extent the opinion of Dr Millington, have all been based on the history given to them by Mr Hatzigiakoumi. The omissions and incompleteness of the clinical history is reflected in these doctors' opinions. The Tribunal accepts that Mr Hatzigiakoumi's memory is diminished as there are repeated errors with respect to dates throughout all the clinical material and it was clear, from Mr Hatzigiakoumi's oral evidence to the Tribunal, that he could not recall many events or dates, although his memory on the day of the hearing was particularly affected by a moderate dose of Valium.
62. The medical evidence indicates that Mr Hatzigiakoumi has suffered from a depressive disorder since 1993, when he was informed that he was HIV positive, that is, infected by the Human Immunodeficiency Virus. This depressive disorder continued thereafter, with varying levels of severity and major episodic depression being precipitated by exposure to various stressors. The major episodes of 2003 and 2006/2007 were precipitated by work-related stressors. The major episode of 2005 was precipitated by non-compensable stressors relating to issues with his partner of 20 years and his financial concerns.
63. The Tribunal finds that the episode of late 2006 (stretching into mid-2007) was precipitated to a significant degree by his failure to gain promotion in December 2006. It is clear that other factors were involved, including difficulties with his partner's health and financial problems. This episode was however regarded as being temporary or transient in that it was expected to respond to treatment.
64. Mr Hatzigiakoumi stopped working within days of the notification of an enquiry into alleged breach of the Code of Conduct in September 2007. In conjunction with other stressors, this caused a marked increase in the severity of his depressive symptoms which have persisted to this day. Two months after the instigation of the enquiry, Dr Millington recommended that Mr Hatzigiakoumi be retired on grounds of invalidity. Despite denying the alleged breaches of the Code of Conduct, Mr Hatzigiakoumi has not challenged the reasonableness of this administrative action by the MRT-RRT. The temporal connection between the enquiry and Mr Hatzigiakoumi’s permanent incapacity cannot be ignored, despite Dr Millington’s opinion attributing permanent impairment to the 2003 death threat.
65. The Tribunal finds that Mr Hatzigiakoumi's depressive disorder was precipitated by the medical confirmation of his HIV infection and has been potentiated (endowed with increased severity) by a multitude of stressors, albeit to varying degrees of severity, until the breach of the Code of Conduct enquiry in September 2007; which rendered his incapacity for work total and his impairment permanent.
66. In Hart the Full Court of the Federal Court of Australia rejected the argument that the exclusion clause in the s 5A definition of an injury, which states that an injury does not include disease, injury or aggravation suffered as a result of reasonable administrative action, would not operate where the injury was due to several causes. The Court held that if reasonable administrative action was a material contributing factor in a multi-factorial disease aetiology, the exclusion operated.
67. The Tribunal has found that Mr Hatzigiakoumi's failure to gain promotion in December 2006 contributed to a significant degree to the aggravation of his depressive disorder. The Tribunal determines that the enquiry into the alleged breach of the Code of Conduct by Mr Hatzigiakoumi was a reasonable administrative action and the most significant factor in rendering his depressive disorder continuous rather than episodic, and thereby permanently incapacitating him for work. Therefore, according to the Full Court in Hart, the exclusion clause in s 5A applies.
68. The Tribunal affirms the decision under review.
I certify that the sixty eight [68] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, MemberSigned: Grace Carney
Administrative Officer, Members' Support TeamDate of Hearing 17 November 2010
Date of Decision 16 December 2010
Solicitor for the Applicant Self Represented
Counsel for the Respondent Mr John Wallace
Solicitor for the Respondent Ms S Krauss, Australian Government Solicitor
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