Hronopoulos and Telstra Corporation Limited
[2002] AATA 471
•18 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 471
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/934
GENERAL ADMINSITRATIVE DIVISION )
Re NICHOLAS HRONOPOULOS
Applicant
And TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr M D Allen, Senior Member Dr M E C Thorpe, Member
Date18 June 2002
PlaceSydney
Decision The decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision namely: 1. That the Respondent is to pay compensation to NICHOLAS HRONOPOULOS pursuant to sections 14, 16 and 19 of the Safety,Rehabilitation and Compensation Act 1988 (as amended) for the injury of Major depression for the period 15 October 1999 to 1 march 2000. 2. The question of costs is reserved for further submissions by the parties.
(Sgd) M D Allen
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION - Whether compensable condition caused by failure to obtain a promotion or benefit. Did work stress aggravate or contribute to ischaemic heart disease.
Safety, Rehabilitation and Compensation Act 1988 - s4, s14
Comcare v Mooi 42 ALD 495
REASONS FOR DECISION
Mr M D Allen, Senior Member Dr M E C Thorpe, Member
By application made 19 June 2000 the Applicant sought review of a reviewable decision of the Respondent dated 9 May 2000 which affirmed a prior determination dated 23 February 2000 rejecting his claim for compensation for the illness described by him as "depression and myocardial infarction".
The particular decisions refer only to the Applicant's condition of major depression however the claim form submitted to the Respondent by the Applicant on 10 November 1999 clearly refers to depression and myocardial infarction and it is incumbent upon this Tribunal standing as it does in the shoes of the decision maker to have regard to the actual claim submitted by the Applicant and to do what the original decision maker failed to do namely consider the claim for the Applicant's ischaemic heart disease.
Although the Applicant's claim lodged with the Respondent refers to "major depression arising from discrimination in the workplace resulting in a myocardial infarction (heart attack) at home in 1997" the Applicant's amended statement of facts and contentions (Exhibit A11) refers to "an acceleration of underlying ischaemic heart disease" and in his closing address the Applicant's counsel made clear that the Applicant's claim was for the aggravation or acceleration of ischaemic heart disease due to work caused stress.
In the resolution of this matter the definition of injury as it occurs in section 4 of the Safety, Rehabilitation and Compensation Act 1988 must be kept in mind. That definition reads inter alia:
"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, 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."The Applicant commenced employment with the Respondent on 28 March 1995 as what was described as a TTO1. Apparently there are various grades of technical officers with TTO1 the lowest. Previously the Applicant had applied for an advertised position as a TTO2 but was not successful. Indeed he was not even interviewed for this position a fact that caused him some amazement and resentment.
Having been interviewed for the position of a TTO1 the Applicant was successful and started employment on 28 March 1995. At that time he possessed what is known as an Austel licence. This licence is granted by the Australian Telecommunications Authority and permits the holder to undertake or supervise cable laying on private premises.
Upon commencement of his employment the Applicant was informed that he would be required to use his Austel licence in the performance of his duties. This the Applicant was unwilling to do as he believed he should be paid more than the wage payable to a TTO grade 1 for using his Austel licence plus he had objections to using his licence when he was not in charge of the site. As the Applicant put it in his evidence in chief "I was being asked to perform at a higher level than I was employed at".
Prior to commencing employment with the Respondent the Applicant had had extensive experience in electronics. He had been trained at AWA Pty Ltd and had employment as a lighting technician in a professional theatre company, with the NSW State Rail Authority as an electronics technician and by AWA Defence Industries.
On the 1 May 1995 the Applicant handed to his supervisor a Mr Job a memorandum dated 28 April 1995. In that memorandum (Exhibit A13) the Applicant stated inter alia:
"I have to inform you that a few problems exist in the systems.
Your formal offer of employment is invalid (no name, no date, no signature)
Use of my Austel licence as a TTO1 is a gross contradiction in responsibility & duties possible mistake in personnel office
It was not mentioned at interview or in any correspondence. Nobody has discussed this matter with me. This is unacceptable as it is not a prerequisite for lower grade positions.
I would like to negotiate a more suitable arrangement which is beneficial to NDC and to myself."
According to the Applicant when he handed the memorandum to Mr Job he laughed which the Applicant found very "demeaning and belittling".
Later the Applicant was informed that he was to attend a meeting on 2 May 1995 in the city. Prior to the meeting he was informed by another employee that its purpose was to sack him. On the day of the meeting he overheard another employee say words to the effect "Oh, the hit squads here".
The meeting resulted in Mr Job typing and handing to the Applicant a letter which read inter alia:
"Your functions and duties as a Telecom Tech Officer Gr 1, will require you to use your Austel Licence fully. Under this arrangement Telstra will pay your licence fees and costs incurred with the maintenance of your Austel Manual.
…it is planned that you will be provided with 23 days mandatory training within your first 6 months of employment."Exhibit A14 is a copy of that letter defaced by the Applicant's comments written on it by him in the train as he returned home after the meeting. Amongst those comments are the following "but I don't want to use my licence", and "worthless, weak ineffective bully boy tactics". The Applicant, notwithstanding the letter, did not use his Austel licence afterwards in his work.
The Author of the letter Mr Job was called by the Respondent but had no clear recollection of the meeting. Some of the evidence given by Mr Job was contradictory, eg he stated that at his level of employment the Applicant would not be required to use his Austel licence yet Exhibit A14 clearly refutes this.
Document T13 at page 40 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 contains the report of a conversation Mr Job had with an investigator engaged by the Respondent. As Mr Job was unable to depose to the contents of that statement in the witness box we have paid no regard to it. Similar comments apply to the conversation between the investigator and Mr Hollis who also could not accurately remember events at the time the Applicant was under his supervision.
Another perspective of the Applicant's beliefs at the time of his interview with Mr Job on 2 May 1995 is contained in a statement to the investigator engaged by Telstra. At document T17 commencing at page 77 the following is declared by the Applicant:
"g) When I first applied for a position with the Corporation, it was for a tradesman Level 2 position. I did not receive an interview, however some 3 months later I received a phone call, asking me if I was interested in a Level 1 position. Partly because I was unemployed, I said yes.
h)…
i) Upon commencement, I was placed on the most menial, non-skilled, and basic of tasks. The tasks I was given were certainly not in keeping with my skills and expertise, background experience and qualifications. Unfortunately, even after the initial period, I was forced to remain on the same type of tasks.
j)…
k)…
l) I very soon found out after starting with Telstra that they wanted to use me in jobs where an Austel licence was required, but that they were not prepared to pay me a salary in keeping with the fact that I held a licence. I should also mention that during my recruitment interview, I was informed that Telstra would want use my licence. When I later raised this aspect with my Manager, he contended that the licence issue was discussed at the interview, however this is not true.
m)…
n) Not only were Telstra using my licence, and having me perform the most basic of tasks, I also found myself having to teach other staff the most basic of tasks. Again, this was not recognised. There have been also been many instances over the years whereby Telstra have wanted me to perform work above the level of which I am being paid. Sometimes I have obliged, however sometimes I have also declined and pointed out the inequity.
o)…
p) Then, around July 1998, I transferred to my current position, which is based at Darlinghurst, (in an area known as Digital Data Network). Prior to this, I had worked at a number of telephone exchanges, including Sylvania Exchange where I spent some 6 months.
q) I was hoping the transfer "fresh start" so to speak. To the contrary, since commencing there I have again found that my skills have not been utilised, leaving me frustrated and disappointed. For example, on the first day I commenced in my current job, I was given the task of cleaning up the library and removing rubbish. I use this merely as an example to show how my technical skills are ignored."Following the meeting with Mr Job the Applicant was informed by his then supervisor that he was being "set up" and that it was alleged that he had "dobbed in" fellow workers to Job for going to the "movies" when they were allegedly working. Later he found himself ostracised by other employees.
In December 1995, the Applicant was transferred to the Sylvania depot, where the supervisor was a Mr Hollis. Hollis asked the Applicant if he would use his Austel licence but he again refused.
The Applicant claimed that he had an altercation with Hollis regarding his Austel licence. Apparently two other employees were being sent on a course to obtain their Austel licence. The Applicant apparently asked if he could attend the course as a refresher and Mr Hollis refused and in the words of the Applicant got angry and berated him. If this did occur we can quite understand Mr Hollis' reaction as the Applicant was still refusing to use his Austel licence in the course of his employment with the Respondent. Apparently however the Applicant took offence to Mr Hollis' reaction.
The Applicant also felt discriminated against in the length of time he remained at the level of TTO grade 1. He said that although he applied for promotion several times in the years 1995, 1996, 1997 he was rejected and remained at the grade 1 level for 3 years whereas the normal length of time in this grade was 6 months. Mr Job however stated that the average length of time for promotion from grade1 to grade 2 level was two to two and half years. He also added that before promotion to grade 2 level can take place certain mandatory training must be undergone.
The Applicant was promoted to a grade 2 and almost immediately thereafter to a grade 3 position in July 1998 and commenced work at Darlinghurst. There he claimed he was overworked as he had to show another grade 3 level employee how to do his job plus he was constantly answering the telephone of another level 4 employee and answering questions for which that person had responsibility. All of these functions were carried out in addition to his own duties.
On the 17th June 1999 the Applicant was working at the Respondent's offices in Pitt Street City when he overheard a supervisor make a remark on the telephone, namely, "you've been hanging round the Greeks too long". He took offence at this remark and when he remonstrated with the supervisor was told it was a private conversation. Later that day he was at the building's loading dock when he heard another employee say to a companion "here comes the Greek". At this he was grievously offended.
Because of the above events which happened on a Friday the Applicant claims his anxiety became worse. He was sleepless and irritable all over the weekend. He returned to work on the Monday and prepared a memorandum for the manager. He then left work as he was feeling isolated and vulnerable and could not cope any longer. He remained off work for one week.
After one week away from work the Applicant returned but after one hour went home. He attended a Dr Panaretos who gave him a referral to a psychiatrist. The Applicant remained absent from work until his employment was terminated on medical grounds on 7 June 2000.
In addition to his conflicts within the workplace the Applicant suffered in the period from 1995 to 2000 three coronary infarcts. These occurred on 28 February 1997, 28 June 1998 and 6 June1999.
So far as the actual infarcts are concerned the first occurred in the morning after the Applicant had been out the night before. The second occurred after a night the Applicant had spent celebrating and the third when the Applicant was attending his niece's wedding. There is no evidence that the actual ischaemic events had any reference to the Applicant's employment.
Cross-examined the Applicant revealed that he had resentment towards the Respondent from the commencement of his employment. He said that he felt degraded at not getting the level 2 position for which he had applied. He also added that although he did not mind starting at the bottom he did not expect to stay there very long.
As to his Austel licence the Applicant said that as the level 1 position is not that of a tradesman why should a non-tradesman use his expertise and his licence if he is not being paid for it. He further added that he did not see why he should use his Austel licence unless he was paid a premium for doing so.
Exhibit R8 consists of the Applicant's diaries for the years 1995 to 1999 inclusive.
An entry on 30 March 1995 (remembering the Applicant commenced employment with the Respondent on 28 March 1995) reads "kindergarten starts". Cross-examined the Applicant stated that he did not think it right that 19 year olds should be on the same salary as him.
On the 20th April 1995 a diary entry of "whites only" was explained as being that all selected employees were Anglo-Saxons. Cross-examined as to the entry of 28 April 1995 the Applicant reiterated that he would have been quite happy to use his Austel licence if he had been paid for it.
The Applicant was cross-examined on other entries in his diaries and we do not consider it necessary to set out this cross-examination in any detail. Suffice it to say that at the end of this cross-examination we were in full agreement with the assessment of the Applicant by Psychiatrist Dr McClure who in a report to the Applicant's solicitors dated 25 January 2000 (Exhibit A8) wrote:
"Your client, Mr Nicholas Hronopoulos, gives a history suggestive of pre-existing narcissistic personality traits resulting in life long need for admiration and support, concern over body image, fragile self-esteem and a tendency to attempt to "take control" in interpersonal situations.
Mr Hronopoulos' basic personality structure has left him vulnerable to decompensation in situations of frustration, disappointment or loss. He has faced such a situation during his four and a half years working for the Telstra Corporation."
At the end of his cross-examination the Applicant conceded that his complaints against the Respondent were that he considered that he should not have had to use his Austel licence (which he did not), that there was a failure to gain promotion, that he was asked to do jobs using his Austel licence but not paid for it and that he was not sent to training courses. He agreed that going to any training course would have been a benefit to him. He also stated that he thought a level 1 position was beneath him and that he should have been employed at a level 2 position.
The Applicant did not seek any treatment for alleged anxiety and/or depression until after the incidents of October 1999. Initially he consulted Dr Panaretos. Dr Panaretos referred him to a psychiatrist a Dr McDowell but the Applicant declined to attend that Doctor. Instead he sought a referral to a Dr Costa an occupational health consultant. The Applicant was later referred to a psychiatrist a Dr Moorthy but he did not continue with treatment from Dr Moorthy as he had, according to his evidence, a personality clash with that Doctor.
In a report dated 26 January 2000 (T25) Dr Panaretos stated inter alia:
"On 15/10/1999 he gave a history of suffering the following symptoms since commencing employment with Telstra in March 1995.These included
lowered self esteem
anxiety
insomnia
social withdrawal
depressed mood
a sense of anger and difficulty coping with the stress that he perceived that
he was under in the workplace.
… He stated that he was suffering mild angina symptoms, during work hours as a result of the stress that he was under in the workplace and that these would be relieved by sublingual anginine.
There was a past history of depression at a time that he was experiencing problems with his daughter. Family history of psychiatric illness included his mother who suicided when he was three years of age. …
Having not seen the patient since November 1999, I am unable to respond to some of your questions as regards fitness for employment. I believe that he was suffering an anxiety disorder with possibility of underlying depression. Whether or not this would have occurred if not for the employment I cannot answer, not knowing in depth the work place environment and not having a deep understanding of the patient's psychological health prior to his commencement of employment with Telstra. The myocardial infarct that he suffered in 1999 would have had emotional repercussions, which I believe could be a partial factor in his anxiety disorder."Document T23 is a report by psychiatrist Dr Moorthy undated but received by the Respondent on 6 January 2000. In that report Dr Moorthy does say:
"I saw Mr Nicholas (sic) on 23.11.99 and was referred by his local Doctor for the assessment and management of depression and anxiety.
He reported the above symptoms and related them to discrimination and harassment at the workplace Telstra where he had employed since 95. He alleged that his qualifications went unrecognised and he was used for his licence when less qualified people were asked to do his job."
Dr Moorthy concluded his report by stating that the Applicant required further psychological evaluation.
Dr Costa stated in an initial report to the Respondent 19 January 2000 (T24) that the Applicant suffered from a generalised anxiety disorder due to work and that his then unfitness for work was entirely due to the said anxiety disorder.
In a report dated 14 February 2000 to the Applicant's then solicitors (Exhibit A2) Dr Costa opined that the Applicant suffered a generalised anxiety disorder due to work which had accelerated and aggravated an underlying cardiac condition, and precipitated 3 cardiac infarcts. At the date of that report Dr Costa considered the Applicant to be still totally unfit for work.
Exhibit A3 is a further report by Dr Costa date 11 January 2001. In that report Dr Costa notes that a clinical Psychologist a Mr Anthony found in 2000 that the Applicant was capable of "self-employment in a situation in which he could work mainly on his own, preferably away from the electronics industry". Dr Costa however seems to disagree with this assessment as at page 5 of his report he states:
"He continues certification as totally unfit for work in his present condition. He is permanently unfit for his pre-injury employ (sic) it is doubtful whether he could again face up to any structured work situation or close supervision because of the traumatic experiences with his previous employer and also doubtful whether he could cope with any form of employment because of impairment of capacity to persevere with set tasks."
Dr Costa also maintains his opinion that the Applicant continued to suffer a generalised anxiety disorder due to work, which remained semi acute.
Dr Costa has no qualifications in psychiatry and where his views as to the origin and duration of the Applicant's psychiatric illness conflict with those medical practitioners having specialist qualifications in psychiatry we prefer the opinions of the qualified specialists. Similar comments can be made in respect of a Dr Kendall a physician relating to both psychiatric illness and the aetiological factors in ischaemic heart disease.
Exhibits A4 and A5 are reports from a clinical psychologist Mr Anthony dated respectively 15 March 2000 and 20 December 2000. In those reports Mr Anthony opines that the Applicant suffered a generalised anxiety disorder with depression due to various incidents of perceived discrimination in the work situation over a number of years. In his latter report Mr Anthony stated:
"There are indications of increased depression. He reports that he has difficulty persevering with set tasks, including his hobbies. He is reluctant to socialise. He generally feels inadequate and a failure in life. …Anxiety associated with Telstra would preclude return to that employer and he would be also subjected to considerable stress if faced with the demands and pressures of any supervised work situation. In terms of his current psychological adjustment, with particular regard to the level of depression, it is doubtful whether he could cope with any form of employment because of impairment of capacity to persevere with set tasks."
The report of Dr McClure has been referred to above. Dr McClure concludes his report by stating:
"In the absence of any evidence of pre-existing condition, other than his native personality traits, it seems clear that the nature of Mr Hronopoulos' work has been a substantial contributing factor to his recent major depressive episode. He has achieved some degree of symptomatic recovery (based on his presentation at interview today), with his removal from the workplace, but he requires ongoing, expert opinion from a consultant psychiatrist, including antidepressant medication at therapeutic levels and appropriate psychotherapy."
In a vocation assessment report dated 17 December 1999 (Exhibit A6) for the Respondent Mr Hiscox occupational psychologist stated inter alia:
"Whilst Mr Hronopoulos continues to believe and resent his alleged treatment in the workplace, whether or not it is founded, then he places himself in a position of psychological stress which will enhance other perceptions of stress such as time pressures and workload. The more anxious we are the greater our tendency to interpret situations as threatening, whether they are or not. …
There does not appear to have been any effective attempt to sought out the problems between Mr Hronopoulos and his immediate work area.
There is insufficient fact to conclude that on the basis of psychiatric illness Mr Hronopoulos cannot return to the employ of Telstra at least without a trial of Mr Hronopoulos developing and applying anxiety management skills,…"
Dr Kendall is a consultant physician. In his report of 30 March 2001 to the Applicant's solicitors (Exhibit A9) he states inter alia:
"The diary provided by the patient shows that he was poor at coping with stress.
His diary, as well as his refusal to have surgery because of the disfigurement it would cause (!) suggest that he has an obsessive personality and such people are very vulnerable to perceived and real external stress.
OPINION
He also has a largely genetically determined predisposition to coronary heart disease, which was aggravated by his distressing emotional stress and continued smoking…"
A paper accompanying Dr Kendall's report demonstrates that he is firmly in the camp of those medical practitioners who consider stress to be a contributing factor to ischaemic heart disease.
Psychiatrist Dr Napper was requested by the Respondent's superannuation provider to provide a report on the Applicant as the Applicant had applied for total and permanent incapacity invalidity benefit following his forced retirement from the employer on medical grounds. He took an uncritical history of events from the Applicant and stated:
"Mr Hronopoulos claims that he was mistreated by Telstra during the course of his 5 year employment with Telstra. The first serious occasion of mistreatment occurred when Telstra insisted that he perform work at a level that required him to use his Austel licence. He was only employed at a level 1, which was unskilled position for which an Austel licence was not required. The Austel licence was usually required for level 2 and above. In other words, he was asked to perform at a higher level while being paid at a lower level. Another example of mistreatment was the refusal by Telstra to promote Mr Hronopoulos to a higher grade within a reasonable period of time. He claims that it took him 3 years to be promoted to a level 2 and all his colleagues received promotion within 6 months to a level 2. He says he never had any adverse feedback on his work He claims that the refusal by Telstra to promote him to a higher level within an acceptable time frame was an example of discrimination against him."
Dr Napper opined that the Applicant was suffering from a chronic adjustment disorder with anxiety. The cause of the condition being his treatment at Telstra, his medical dismissal, current unemployment and lack of income. Dr Napper did not believe that the Applicant could be gainfully employed.
On 19 November 1999 Dr Hall consultant cardiologist and physician prepared a report for the Respondent. In preparing his report Dr Hall obtained from the Applicant a history that:
i.In 1995 he had to endure a lot of slander and discrimination including racial discrimination while at work.
ii.He was a smoker and had been a heavy smoker.
He had smoked up to 40 cigarettes a day.
He had been overweight but had reduced his weight.
v.On 15 October 1999 he stopped work as things were chaotic due to shortness of staff and he was starting to get chest pains. He has not returned to work.
Significantly Dr Hall comments that it was a "great blow" to the Applicant when he was given a lower grade job with the Respondent. He concluded his report by opining that the Applicant's present condition was that of ischaemic heart disease and anxiety depression state and an occupational rehabilitation program was unlikely to be of any assistance to the Applicant until he underwent recommended cardiac surgery or other effective treatment. The Applicant could undertake, if such a job were available, clerical work without any psychological or physical stress.
Dr White, psychiatrist, interviewed the Applicant at the request of the Respondent on 1 December 1999. In his report of that date he opined that the Applicant suffered from a personality disorder and perhaps a paranoid illness; that it was his negative perception of the work place rather than the reality of the workplace which had generated stress; and whereas further information regarding the Applicant's psycho-social functioning is required but 'he is as well now as he was when he was working so from that point of view, he could resume work." As a summary of his report Dr White opined (see T16 p54):
"Mr Hronopoulos is alleging work related stress which he believes is caused by the nature of his conditions of his work from when he started in 1995. Specifically, he believes that he was over qualified for his current status and that Telstra tried to use his extra qualifications and training while paying him at a lower level. When he was transferred from customer service to the NDC, this ceased to be an issue.
He now complains that he has been discriminated against in his pursuit of promotions and in his applications to work on rosters which would entitle him to extra pay. The 'final straw'" was when he overheard what he believes was 'a racial comment" directed against him.
He has been off work for at least month (sic) but I was unable to determine evidence of a work related psychiatric disorder which would justify him being off work for medical reasons. He has an unusual personality style and appears to have "Cluster A" personality dysfunction characterised by odd and erratic behaviour. This may explain his attitudes and his perception of the difficulties which he experienced at work.
While the comment about his Greek origin was unfortunate, it is neither necessary nor sufficient cause for mental illness. He has much more significant psychological stressors, notably his severe ischaemic heart disease for which he has declined cardiac surgery so that his prognosis after heart attacks may well be poor.
In my opinion, Mr Hronopoulos does not suffer from a psychiatric disorder or stress related illness which can be reasonably attributed to his employment with Telstra. He has serious and probably life threatening heart disease but he is declining to have surgery for medically unsophisticated reasons; this is a potent alternative cause for emotional distress."
The Applicant was referred by his general practitioner Dr Bhattacharyya to Dr Gray psychiatrist. In a report dated 1 March 2000 to the Applicant's former solicitors Dr Gray states:
"2. At the time of initial assessment Mr Hronopoulos appeared to be recovering from a major depressive episode. The severity of symptoms at that stage was mild. From his retrospective account of his condition it is probable that he had suffered from a major depressive disorder MDD, recurrent, of moderate severity. He dated the onset of his symptoms to when he commenced work with Telstra in March 1995. He had been on sick leave since 15/10/1999 and said his symptoms have improved significantly from the time of moving in with his brother and sister-in-law on the 01/11/1999.
3…
4…
5…
6. The prognosis is good. By his own admission Mr Hronopoulos has already improved significantly since leaving the work situation at Telstra and he would no longer fulfil criteria for having a major depressive episode. …
7. He presently has mild depressive symptoms but these are not of sufficient severity to fulfil the criteria for a major depressive episode. His symptoms are consistent with a normal response to the circumstances he is currently in with respect to pursuing an important legal case of uncertain duration and outcome.
8…
9…
10. There should be no permanent disability resulting from the psychiatric disorder he has suffered.
11. Although he should suffer no permanent psychiatric disability or loss of earning capacity it is likely that he will find it difficult to work for a major corporation with an impersonal bureaucratic structure."
Exhibit R10 is a copy of the clinical notes of Dr Gray. The entry for 21 December 1999 reads "confidence and self esteem is returning" and "now feels fine as long as doesn't have to have anything to do with Telstra". In cross-examination the Applicant agreed that this last observation was true.
Dr Lewin psychiatrist examined the Applicant on two occasions upon referral by the Respondent. In his report of 1 February 2001 (Exhibit R2) Dr Lewin states at page 6:
"Mr Hronopoulos reported a range of current symptoms. He spoke of feeling dejected from time to time, particularly when he focuses upon how he was treated at Telstra. On those occasions, he experiences difficulty organising his thoughts. He remarked "all these events are still playing on my mind". Mr Hronopoulos described ruminating about being badly treated. As he was telling me about this, he appeared to be angry. He was fiddling with a large dossier of papers."
and concluded by stating:
"I found a man who had a prickly sensitivity and preoccupation with perceived grievance. There appeared to be a strongly held attitude of resentment towards the employer and a marked preoccupation with these matters in the work place. It was noted that when Mr Hronopoulos spoke about these matters, he became distressed. By his own account, he had no particular distress at other times. I found no evidence of any current psychiatric illness.. He reported a range of depressive symptoms in the past and it is possible that he had an Adjustment Disorder at an earlier stage. By the time that I came to examine him, I found no evidence of a depressive illness. There were minor signs of distress associated with his preoccupation with a sense off grievance. However, there were no morbid, depressive or anxiety symptoms.
…
I did not diagnose any current psychiatric illness … Mr Hronopoulos may well have suffered intermittent depressive and anxiety symptoms. It is common for people with a personality vulnerability to have difficulty coping with the ordinary vicissitudes of life...
It is most unlikely that this man will develop any enduring psychiatric illness related to his work place.
I found no evidence of any ongoing psychiatric illness related to work. There is no permanent condition and I found no evidence of permanent impairment."
Having regard to all the material before us and in particular the cross-examination of the Applicant we reiterate our finding that Dr McClure accurately summed up the Applicant. We note that the Applicant's treating psychiatrist Dr Gray considered that at the time of his report namely 1 March 2000 the Applicant had mild depressive symptoms consistent with pursuing a legal case with its consequent uncertainty.
We have no doubt that the Applicant did develop a psychiatric illness be it a personality disorder (Dr White), major depressive episode (Drs Gray and McClure) or an adjustment disorder with anxiety (Dr Napper). However that illness clearly related to the failure to obtain a benefit (appointment at level 2 and not level 1; failure to attend a training course) and failure to obtain a promotion, and as such any injury arising therefrom is non-compensable. See the definition of injury in s4 of the Safety, Rehabilitation and Compensation Act.
Other matters however also influenced the final decompensation of the Applicant into frank illness. After 1998 he had been promoted 2 grades, yet it is clear that he still felt a resentment towards his employer and felt he was being asked to take on too much work. A large part of this can be explained by the Applicant having a narcissistic personality and his employment was no more than the scene in which his vunerabilities manifested themselves.
Different considerations however apply to the comments overheard by him on 17 September 1999 where it was alleged another employee in a conversation with a third person and overheard by the Applicant said words to the effect of "You've been hanging around the Greeks to long". Although as Dr White points out this should have been resolved by a simple apology the Applicant's state of mind was such that he magnified the incident out of all proportion. Then when later a remark was made namely "Here comes the Greek" he became emotionally upset. We see these events as the final straw to a vulnerable personality already, in his mind, in conflict with his employer although the employer was by no means at fault.
At the same time we believe that the Applicant exaggerated the effects upon him. He conceded in cross-examination that before he finally went off work on 15 October 1999 he had been looking to go off on stress leave and make a claim.
Currently the Applicant is in receipt of a Disability Support Pension. We do not know the disabilities in respect of which that benefit has been granted but we infer that they include his ischaemic heart disease and some depressive state however so called.
So far as the Applicant's psychiatric illness is concerned we are convinced by the reports and clinical notes of his treating psychiatrist Dr Gray. As at 1 March 2000 Dr Gray considered that the Applicant's mild depressive symptoms were consistent with a normal response to his circumstances which involved legal proceedings against his former employer. Such responses do not amount to a psychiatric impairment or illness but are the normal mental and functioning behaviour appropriate to the circumstances and are not compensable see Comcare v Mooi 42 ALD 495.
We are strengthened in this view by opinion of Dr Lewin who on 1 February 2001 could not diagnose any psychiatric illness and the opinion of Dr White who on 1 December 1999 opined "he is as well now as he was when he was working".
So far as the Applicant's Ischaemic hearty disease is concerned this matter again canvassed the question of whether stress or anxiety is a contributing factor in ischaemic heart disease. Dr Herman the Applicant's treating cardiologist was of the view that it did whereas Associate Professor Richards who was called by the Respondent was not.
The Tribunal was impressed by the evidence of both cardiologists called. Both gave clear evidence and where alternate views existed they were willing to debate the pros and cons of these alternate opinions. Dr Herman for example readily conceded that the link between stress and/or anxiety and ischaemic heart disease is debateable.
Although regard must be had to the reports and evidence before us the Tribunal is aware from its day to day work that the question of any link between and stress and/or anxiety and hypertension and thus ischaemic heart disease is one of ongoing debate.
In this matter the Applicant had another well-recognised major risk factor for ischaemic heart disease namely a smoking history. At the time he commenced he employment with the Respondent (1995) his ischaemic heart disease was already well developed in that in 1997 an angiogram revealed that he had a blockage of 80% in two coronary arteries and 60% in a third.
We find that in the presence of the major risk factor of smoking, a habit with which the Applicant persists, and the undecided question of whether stress/anxiety does or does not contribute ischaemic heart disease that we are not satisfied on the balance of probability that any stress or anxiety experienced by the Applicant whilst in the employ of the Respondent was a contributing or aggravating factor in his ischaemic heart disease.
A further point on this is that as that most of the stress allegedly experienced by the Applicant was in non compensable circumstances namely his failure to gain promotion or a benefit then the results, if any, of this stress is itself non compensable.
As a result of his ischaemic heart disease the Applicant did experience attacks of angina pectoris whilst at work. Even if these angina attacks were caused by incidents at work as Professor Richards stated if relieved by nitrates then they were self-limiting episodes.
As the Applicant was absent from work from 15 October 1999 because of a psychiatric illness contributed to by incidents in his employment he is entitled to compensation. However the evidence from his treating psychiatrist is that he would have been psychiatrically capable of return to work by 1 March 2000. There is support for this view in the reports of Drs Lewin and White. In these circumstances the decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision namely that the Respondent is to pay compensation to Nicholas Hronopoulos pursuant to Sections 14, 16 and 19 of the Safety Rehabilitation and Compensation Act 1998 for the injury of major depression for the period of 15 October 1999 to 1 March 2000. The question of costs is reserved for further submissions by the parties.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr M D Allen, Senior Member
Dr M E C Thorpe, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 21 and 22 January 2002; 1-3 May 2002
Date of Decision 18 June 2002
Counsel for the Applicant Mr J Trainor
Solicitor for the Applicant Messrs Kings Lawyers
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Henry Davis York
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