Ismail and Australian Postal Corporation
[2001] AATA 647
•12 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 647
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos N1998/727 &
) N1999/1571
GENERAL ADMINISTRATIVE DIVISION )
Re MAHMOUD ALI ISMAIL
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date12 July 2001
PlaceSydney
Decision The decisions under review are affirmed.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
WORKERS COMPENSATION - Whether Applicant's current mental illness caused or contributed to by employment. Diagnosis of condition. Factional Disorder leading to exaggerated signs of apparent illness.
Safety, Rehabilitation and Compensation Act1988
Comcare v Lees 29 AAR 350
REASONS FOR DECISION
12 July 2001 Senior Member M D Allen
The matter before the Tribunal relates to applications by or on behalf of the Applicant to review two determinations by the Respondent. The first determination is a "reviewable decision" made pursuant to s62 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) on 16 April 1998 which determined that the Applicant, as a result of an incident at his place of work on 3 February 1997, suffered a post traumatic stress disorder and was entitled to payment of compensation as a result for the period 16 May 1997 to 31 August 1997 and that liability to pay compensation under s19 of the SRC Act ceased as and from 9 October 1997.
The second determination is a "reviewable decision" dated 17 August 1999 affirming a prior determination of 8 December 1998 rejecting the Applicant's claim for compensation for permanent impairment alleged to have resulted from injuries to his neck and back occasioned by the work accident on 3 February 1997.
Document T3 in the bundle of documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975 in respect of the claim for permanent impairment (matter No 1999/1571) is a copy of the Applicant 's claim for permanent impairment. The claim reads:
"24% whole person impairment as a result of injuries to neck and back at work pursuant to Section 24 of the Safety, Rehabilitation and Compensation Act, 1988."
No claim for psychiatric impairment has been lodged by the Applicant or considered by the Respondent. Given the decision of the Full Court of the Federal Court in Comcare v Lees 29 AAR 350, it seems that even if the Applicant's psychiatric illness were found to be work-caused then the matter of the degree of permanent impairment (if any) would have to be remitted to the Respondent.
The Applicant was born in Syria on 24 July 1948 (T6 in N1998/727). He arrived in Australia in 1969 and after a series of employments, including being self-employed in conducting a fruit shop, he entered into employment with the Respondent in 1989, originally on a temporary basis but becoming permanent in 1990.
On 3 February 1997, whilst working at the Neutral Bay Post Office, the Applicant fell down a flight of stairs. He was taken by ambulance to Royal North Shore Hospital and remained as an in-patient for two days, being treated for a "soft tissue injury" but was regarded as fit to resume work on 17 February 1997 (T23 in N1998/727).
Although initially claims were made for injury to the Applicant's thoracic spine and neck, it has since become clear that the fall resulted in nothing more than a soft tissue injury.
Exhibit A7 is a report by Dr Zicat, the Applicant's treating orthopaedic surgeon. In that report Dr Zicat states:
"I note that he has had a crush fracture of the body of T12 with anterior wedging that was documented in 1976. In addition, there was narrowing of the L4/5 intervertebral disc space noted at the same time."
Given this report by Dr Zicat, I reject the report by Dr Roarty who opined that the wedge fracture was due to the fall.
The Applicant was also seen by Dr Hodgkinson, Orthopaedic Surgeon, on 29 April 1997. Dr Hodgkinson noted:
"Examination: On examination he walked into the consultation with a guarded movement using a walking stick. He was able to sit reasonably comfortably without any obvious disability. When examining him there was a tendency to overbreathing and all forms of passive movement were resisted with the result that he complained of unphysiological reference pain to his trunk, shoulders, neck and body generally.
On examining the shoulder, he objected strongly to any passive range movements although I noted he was able to remove his clothing without any obvious limitation. My every endeavour to examine him passively in the neck, back, shoulders, arms, legs and hips produced rigidity and restricted complaints of pain."
(T28 p90 in N1998/727)
And opined that the Applicant was embellishing disability.
Dr McGill, Rheumatologist, also noted that the Applicant was unwilling to provide a history and to co-operate with his physical examination. He further noted that the Applicant's cervical spondylosis exhibited a pattern of radiological change typical of constitutional disease (T15 in N1999/1571).
The major issue in this matter is the Applicant's psychiatric state. What is clear, however, is that when attending medical specialists engaged by the Respondent, the Applicant has been incapable of performing diagnostic tests. His treating orthopaedic surgeon now recognises that his crush fracture of the T12 vertebra is long-standing and radiology showing that fracture predates the Applicant's employment with the Respondent. On discharge from Royal North Shore Hospital it was thought that the Applicant could resume employment some 14 days after the accident and the diagnosed condition was soft tissue injury. As early as 23 April 1997, Dr Zicat had noted that: "There is no evidence of neurological dysfunction …" (T27 in N1998/727). Given the material before me I am satisfied that no ongoing compensable orthopaedic condition post 9 October 1997 existed, much less being caused by or contributed to by the Applicant's fall on 3 February 1997, nor is there any permanent impairment resulting from that fall.
In passing, I note that the video films taken of the Applicant show him moving freely with no apparent restrictions nor the need for any walking stick.
The video films of the Applicant referred to above assume a more important role in this matter as they were used as evidence by the Respondent to support its argument that the Applicant was feigning symptoms of mental illness.
As a layman, it is quite clear that the presentation of the Applicant before the Tribunal was in marked contrast to his appearance on the video films. On the first day of the hearing the Applicant appeared using a walking stick, unshaven and unkempt in appearance. He was unable to respond intelligibly to counsel's questions in cross-examination and during the showing of the video films kept up a running monologue of gibberish.
In complete contrast the video films showed a man dressed in neat casual attire and well groomed, who moved vigorously. He appeared to engage in conversations which went on for some time. He was shown in a shop that sells mobile telephones and was seen to go to a display cabinet, to choose a telephone from that cabinet and apparently demonstrate the telephone to a customer.
Other films showed the Applicant driving a motor vehicle, using an automatic teller machine and engaging in games of chance at the Sydney Casino. Later he was observed at the Casino, sitting back, relaxing and talking.
All of the above activities are totally in contrast to the appearance of the Applicant before the Tribunal.
The Applicant's first signs of any mental disturbance were noticed by Orthopaedic Surgeon, Dr Hodgkinson on 29 April 1997 when he reported:
"He gave a vague history of having had a nephrectomy for renal calculi when a young man in Lebanon. The full details of the story were a little vague when describing this problem which also made him emotional." (T28 in N1998/727)
Dr Hodgkinson further noted during his examination of the Applicant that every endeavour to examine the Applicant passively in the neck, back, shoulders, arms, legs and hips produced rigidity and restricted complaints of pain and that, whereas the neck resisted all attempts at range movements whilst interviewing the Applicant, he was able to move his neck freely without complaint and that examination further produced complaints of unphysiological pain and distribution to the chest, trunk, arms and shoulders.
These physical manifestations can be compared with similar behaviour noted much later by Dr McGill when examining the Applicant. In his report of 22 June 1999 Dr McGill noted that the Applicant was unable or unwilling to provide a history or co-operate with his physical examination:
"He was unable or unwilling to co-operate with the physical examination. He walked with a stick held in his right hand and he limped favouring the left leg. He was able to stand erect. The deformity of T12 vertebra, apparent radiologically, was not apparent clinically.
He would not or could not stand on his forefeet or his heels. When asked to attempt a squat he performed some manoeuvres but did not manage to do any squatting. When subsequently asked to demonstrated (sic) lumbar flexion by touching his toes (I demonstrated as I did for all of the other assessments in the erect position) he performed a full squat such that he was able to touch his toes without bending his back. It was not possible to make any valid assessment of the range of spinal movement due to his inability or unwillingness to co-operate.
…
He resisted lower limb movements powerfully but could not/would not co-operate with assessment of muscle power in the lower limbs.
His lower limb reflexes were normal.
…
He resisted straight leg raising as he resisted hip movement with his knees bent.
There was bilateral hallux valgus and bilateral flat feet. Otherwise there was no objective peripheral joint abnormality. His upper limb function while dressing was normal. He was able to elevate both arms above his head and there did not appear to be any restriction of elbow or wrist movement.
He reported tenderness to palpation over his entire back extending from the occiput down to the low sacrum. The tenderness was apparently equal (as best I could judge from his facial expressions and movements) whether it was applied laterally over the back muscles or closer to the spine or over the spinous processes. There was no suggestion of increased tenderness at the T12 level compared with other sites." (T15 p35 in N1999/1571)
The first referral for psychiatric evaluation was by Dr Zicat in May 1997. In a report dated 16 May 1997 (T31 in N1998/727) Dr Zicat states:
"I have taken the liberty of recommending psychiatric evaluation, and have made a referral for him to Dr Cassimatis."
That report by Dr Zicat also contains the following passage regarding the Applicant's orthopaedic injuries:
"I have advised Mr Ismail that I agree with Dr Hodgkinson that his best form of treatment at the present time is physiotherapy, and that he should continue with that. I have also advised Mr Ismail that I believe it is in his best interests to re-engage with the rehabilitation providers, and to participate in a graded return to work program as his symptoms permit. …"
As a result of Dr Zicat's referral, the Applicant attended Dr Cassimatis, Psychiatrist. In a report dated 29 May 1997 to Dr Zicat (T32 in N1998/727) Dr Cassimatis states:
"He presented with an acute agitated depression and symptoms of an acute Post Traumatic Stress Disorder …
…
In 1964 he had a kidney removed and now lived in fear that the medication that he was required to take would destroy his only existing kidney".
In evidence to the Tribunal Dr Cassimatis stated that he considered in hindsight that he had misdiagnosed symptoms of post traumatic stress disorder. The Applicant had had a traumatic stress episode, namely the fall, but not a disorder.
On 30 June 1997 Dr Cassimatis reported that the Applicant:
"… continued to develop an intense paranoid psychoses associated with the Depression and the Post Traumatic Stress Disorder." (T36 in N1998/727)
However, on 21 July 1997 Dr Cassimatis stated:
"Mr Ismails' (sic) mood and paranoid ideation with regards to the people at the post office have diminished considerably and I believe that he will gradually settle over a period of many months." (T41 in N1998/727)
Dr Cassimatis' opinions as to Applicant's psychiatric illness were directly challenged by Dr Champion, Psychiatrist. In his report of 11 September 1997 to the Respondent (T43 in N1998/727) Dr Champion states inter alia (pp111-112):
"Comment: Mr.Ismail limped into the consulting room grimacing and groaning with much facial contortion. Prior to seating himself he whispered 'please help me'.
After explaining to him the matters set out in the paragraphs above he was able to provide the identification data recorded. From that point of the interview forward Mr.Ismail responded to questions with rambling statements often not related to the matters at hand and did not seem able to provide me with any form of chronological history.Much of the rambling did not seem to make any sense at all. It did not seem to be typical of a patient who was suffering with hallucinations or representative of any fixed delusional system.
When asked about his own symptoms however the initial pain behaviour exacerbated but he was able to describe pain in his low back and right lower limb which he claimed radiated to every other part of his body, including his head.…
Comment: As a psychiatrist of over 20 years general experience I am quite used to dealing with psychotic patients. It is not unusual that an individual suffering with a psychosis cannot produce any reasonable history because of delusions, hallucinations or thought disorder.
In such circumstances individuals significantly affected by psychosis are disabled to such a degree by their psychotic illness that the attendance at a doctor's appointment on their own after driving there in their own motor vehicle would be remarkable.
In this case I felt that Mr.Ismail's presentation was not consistent with genuine disorder and that the presentation most likely represented a significant exaggeration of any psychiatric disorder present."
Dr Champion then went on in his report to state (pp112-113):
"At one stage I used the technique of adopting a nonsense question. His response was to question me immediately about why I would say such a silly thing. I felt that he was fully aware of reality throughout the examination but chose quite consciously to ignore it."
And then commented as follows (pp114-115):
"Comment: … There was no indication of anything that would lead one to suspect the presence of a post-traumatic stress disorder having regard to the criteria for this diagnosis set out in the DSM-IV.
…
Comment: It is possible that Mr.Ismail may be suffering from a paranoid psychosis however the intensity indicated by Dr.Cassamatis suggests that if so this would be the primary diagnosis.
…
Comment: An acute psychotic reaction involving delusions and hallucinations following the type of accident described is possible but not a probable outcome.
Paranoid psychotic illnesses are common in the community and are often present for many years at low levels before announcing themselves clinically in terms of frank psychotic behaviour requiring treatment. It may be that Mr.Ismail had been suffering for a considerable time with a level of paranoid disorder. If so, it may be that the accident had exacerbated the disorder.
…
If Mr.Ismail's claimed psychosis became a chronic matter then one would suspect that the accident may have in fact not played any substantial role.
There is also the other possibility that if a chronic psychotic condition had been present it may have lead (sic) to the feelings of stress complained of prior to the accident and the accident itself may have resulted from abnormal thinking associated with the psychosis."
Having made those particular comments, Dr Champion reviewed other material available to him and then commented upon reports regarding the Applicant emanating from his workplace as follows (p117):
"Comment: The report, if reliable, suggests the presence of significant difficulties in personality function.
It is possible that these relate to the presence of an underlying paranoid personality disorder or even a level of paranoid illness which had not surfaced clinically."
And then concluded his report by opining as follows (pp117-120):
"Mr.Ismail, a long term Australia Post employee, is reported by his manager as having some problems in demonstrating a flexibility of approach to his work practices. The description is quite consistent with the presence of underlying personality dysfunction.
…
He seems poorly motivated to return to the workplace.
When I examined Mr.Ismail I felt that there was a deliberate simulation of severe mental disorder.
…
It is possible, though I believe not probable, that Mr.Ismail may have suffered with a level of chronic paranoid disorder, possibly associated with the personality dysfunction prior to the alteration of duties in his workplace. There may have been an exacerbation of such a paranoid disorder following these issues and the subsequent fall. Any exacerbation related to these factors would be expected to be of short duration and to be no longer currently playing any significant role in any present disorder.
…
… it is likely that Mr.Ismail will adopt the sick role behaviour at least until any litigation matters associated with his employment are concluded."
As a result of the reports by Drs Hodgkinson and Champion, the Respondent was able to formulate a return to work programme for the Applicant and he was advised of this by telephone on 23 September 1997. Document T44 is a letter from the Rehabilitation Counsellor who spoke to the Applicant on 23 September 1997 to the Applicant following up that conversation.
The telephone conversation between the Applicant and the Rehabilitation Counsellor is significant regarding the next development in the Applicant's mental condition. As described by Dr Cassimatis in a report dated 24 November 1997 (T53 in N1998/727):
"In September he ceased taking medication and was quite suicidal and was scheduled to the Royal North Shore Hospital where psychiatrist Dr Bartrop rang me stating that he was found on the Harbour Bridge by the police. He displayed hallucinations and delusions with anger. He was to remain in the Cummins Unit and was treated with anti psychotic drugs for 3 days.
In October, I interviewed Mr Ismails estranged wife and daughter. It was their belief that Mr Ismail had been under some stress and conflict with other people in the work place prior to the fall. … It is my view that Mr Ismail was frightened to return to the work place because of this ongoing stress and was frightened to communicate this to any of the Doctors or employers.
The Post Traumatic Stress Symptoms described prior had ceased some time in August of 1997 and the general picture was one of paranoid psychoses with depression and a fear of the workplace."
It was submitted by the Respondent that the timing of the Applicant's bridge escapade was not coincidence as it occurred on the same day as and following the telephone conversation between the Applicant and the Rehabilitation Counsellor referred to above, and that his presentation reflected a feigned manifestation of illness following upon the Applicant being notified that he was required to return to work. On the other hand, there is the undisputed fact that the Applicant was admitted to Royal North Shore Hospital as a psychiatric patient so that he either managed to fool the medical officers at Royal North Shore Hospital or was exhibiting symptoms of mental illness.
I have no reason not to accept the genuineness of the Applicant's symptoms at the time he was admitted to Royal North Shore Hospital. However the timing is important, and I find that this manifestation of symptoms following upon a call to return to work is further evidence as to the existence of a factional disorder.
The diagnosis that the Applicant's mental disease is a factional disorder was originally suggested by Dr Cassimatis in reply to Dr Champion's opinion of malingering. In his report of 24 November 1997, Dr Cassimatis did not accept that the Applicant did have a factional disorder but diagnosed a paranoid psychosis with depression with a core fear of returning to the workplace.
In evidence in chief Dr Cassimatis stated that the Applicant's behaviour before examining medical practitioners was to send a message as to how ill he was and that this was part of a factional disorder. Cross-examined he accepted that the Applicant does have an illness behaviour and elements of a factional disorder.
That the Applicant's behaviour and mental state varies can be shown by reference to a letter apparently written by him on 23 October 1997, that is to say one month after his admission to the Psychiatric Unit of Royal North Shore Hospital. That letter (T50 in N1998/727) reads:
"In reply to your letters of 2/10/97 and 9/10/97, respectively,
I wish to inform you that I am dissatisfied with your decision and your determination (respectively).
Requests in writing for a reconsideration and a review (respectively) will be submitted to the appropriate officers of your department.
Please be informed that Mr. Bruce Cameron, solicitor, has been instructed by me to act on my behalf in these matters. Mr. Cameron will now be acting on my behalf in all matters which arise in relation to my Compensation Claim with Australia Post."
The tone and content of the letter do not show any disturbance of thought process and again contrast remarkably to the Applicant's behaviour before the Tribunal.
That the Applicant's presentation can vary is illustrated by comparing the report of Dr Cassimatis of 30 December 1998 to that of Dr Lovell, Psychiatrist, of 25 January 1999. Dr Cassimatis writes (T8 in N1999/1571):
"Throughout 1998 he had remained reasonably stable but depressed and psychotic. He was always well groomed and on time for his appointments and at times would take medication in my office to show me that he was complying with therapy. He had improved considerably from the description in my reports of 1997. His sleep was now satisfactory, appetite was good and he was happy with his children. He was able to talk and sit throughout the interview and talk less frequently to imaginary people. The pre occupation with the Post Office had diminished in its intensity, but remained the primary focus. The physical disability remained unchanged from when I first interviewed him.
…
The exaggerated and bizarre presentation of his physical incapability's (sic) was a primary conversion that would prevent him from discharging his anger onto the Post Office employees. He had a delusional belief that he was more physically incapacitated (unable to be altered by reason) that in reality and by this he had stopped himself from acting out his anger. Although he has had some improvement, he will require long term therapy."
As stated, that report on the Applicant's presentation can be contrasted to the presentation before Dr Lovell who reported (T11 in N1999/1571):
"Mr Ismail proved to be a most difficult historian. He essentially delivered an incoherent, egocentric monologue which was quite thought disordered. He evidenced paranoid thinking. He presented wearing a Coca Cola peaked cap, shoes but no socks, and was generally poorly groomed. He was unshaven. He moved stiffly and showed little facial expression. This was consistent with extrapyramidal side-effects from antipsychotics."
After his consultation with the Applicant, Dr Lovell opined (T11 pp27-28 in N1999/1571):
"Dr Cassimatis makes two diagnoses, a paranoid psychosis and depression. It seems far more likely that Mr Ismail is psychotic and his psychosis is biologically determined, that is he has a genetic predisposition.
There exists the possibility that Mr Ismail is feigning psychosis, although he appeared to be able to maintain his egocentric monologue and the themes with which he was preoccupied were consistent with his being psychotic. Clearly his psychosis is a more recent development as the history of Dr Hodgkinson is coherent and organised."
Dr Lovell went on to opine (p28):
"Mr Ismail suffers from a paranoid schizophrenia evidenced by auditory hallucinations, persecutory delusions, thought disorder and lack of motivation.
…
I do not believe that his employment is relevant in the evolution of this condition. He was off work at the time it evolved. He did not strike his head nor lose consciousness in the fall. His condition is biologically determined and frequently inherited."
Having viewed the video film, Dr Lovell then opined:
"The compilation of surveillance does not suggest any evidence of mental illness. There are no extra-pyramidal side effects. He shows full facial expression and swings his arm. He is not seen to mutter under his breath or do anything inappropriate. His affect is appropriate. He appears to have found work at an Internet Café. Once again, I would comment on an entirely different presentation to that at my clinical interview with him on 25 January 1999." (Exhibit R6 p2)
Dr Cassimatis, on the other hand, states that such video films as viewed by the Tribunal and Dr Lovell are unhelpful in the diagnosis of mental illness. Dr Champion, however, disagreed with this view stating that the video film affords the psychiatrist to have a look at the activities of the person "outside the theatre of the consulting room".
Cross-examined, Dr Champion adhered to his opinion that the Applicant was simulating illness. He conceded, however, that the motivation for such behaviour can be conscious or unconscious.
Dr Champion was not aware of the Applicant having been admitted to Royal North Shore Hospital on 23 September 1997. When this was put to him he stated that two possibilities were open, one being someone who was mentally ill being plunged further into depression, the other scenario being a person who was acting in a way so as to express to the world that they had been hurt by being required to return to their workplace.
Whereas Dr Cassimatis stated that his diagnosis of the Applicant's illness was one of psychotic paranoia, in cross-examination he agreed that there was nothing in the medical literature which suggested a fall down a flight of stairs was likely to induce a psychosis of that kind. He also agreed that he would rephrase his earlier opinion to state that the Applicant suffered symptoms of a post traumatic stress disorder rather than the disease and that those symptoms had ceased in August 1997.
More importantly, however, Dr Cassimatis agreed with the cross-examiner that the presentation of the Applicant was consistent with that of a factitious disorder.
Evidenced by the video films and confirmed by the Applicant's wife and daughter in their evidence is the fact that the Applicant drives a motor vehicle and attends the Casino. Questioned about this Dr Cassimatis stated that the Applicant is capable of driving a motor vehicle and is capable of playing games of chance. That the Applicant has the capability of controlling some of his actions is made clear by the report of Dr Cassimatis for the Guardianship Tribunal. That report dated 30 December 1999 is Exhibit A21. The report reads inter alia:
"Joe Ismail is well oriented in time, place and person. He knows that he has a compensation claim for a work related injury and understands the due process.
However he has a delusional belief for the cause of the accident and injury. This belief system causes him to have poor judgment and understanding of the appropriate compensation for the injury. I believe his ability to give instructions would be benefited by the appointment of a tutor."
Again, the contents of that report are in direct contrast to the Applicant's appearance before the Tribunal and his presentation to other examining medical specialists, for example Drs Hodgkinson, McGill and Dowda (Dr Dowda's report is at Document T6 in N1999/1571).
During the course of his cross-examination, Dr Cassimatis stated that he believed that the Applicant's medication was controlled at home. The evidence of the Applicant's daughter was that it is not.
I also find that the Applicant's wife and daughter have over emphasised his disability. Ms Rene Ismail, the Applicant's daughter, is obviously greatly attached to her father and has an abiding interest in his welfare. However, I find it difficult to equate her evidence that her father's personality has so changed that he is a person who "twists everything and says horrible things" and directs abuse at her friends, to a person whom she still accompanies when she has a day off and who accompanies her to the Casino on her birthday and at other times.
Ms Ismail's evidence was that a friend of the family lends his car to the Applicant to drive and that the Applicant does go to the Casino and play Roulette. She also said:
"He does have people that he mixes with that go there and he goes with them".
I would only add that the video film shows the Applicant playing Blackjack which is a game played with cards and demands concentration as to the value of the cards dealt.
Ms Ismail stated that she does travel in the car as a passenger when her father drives. She describes his driving as - "he does illegal things … its quite scary" but conceded her father still had a Drivers Licence. It seems that notwithstanding the Applicant's lack of ability to properly manage a motor vehicle, neither Ms Ismail nor her mother nor the Applicant's treating medical practitioner have regarded his ability as so impaired as to require him to surrender his licence. Nor does it appear that his driving has been so erratic as to bring him to the attention of police, or dissuade the friend not to lend him his motor vehicle. All this points to an exaggeration of the Applicant's inability to properly manage a motor vehicle.
The Applicant's wife separated from him in 1995. Her evidence was that although the children initially remained with their father after the separation, she took the children away from the Applicant after his work accident as he had become very violent towards them. Later, while their son Ali, was studying in Lebanon, her daughter persuaded her to receive the Applicant into the unit occupied by Mrs Ismail and her daughter in order to better look after his welfare.
Mrs Ismail stated that the Applicant continued to exhibit hostility towards their son and, as a result, he now boards away from home. Although the Applicant resides with her and her daughter, she has no conversation with him.
The Applicant's wife was evasive on the question of the Applicant's possession of a motor vehicle. She stated that she did not know from whom the Applicant obtained the motor vehicle he was driving but the Applicant's daughter stated that a friend had lent a motor vehicle to both her and her father. Mrs Ismail could hardly fail to notice that the Applicant and her daughter drove the same vehicle. Similarly, I find her evidence of driving with the Applicant but of sitting in the back seat because of his bad driving to be beyond comprehension. Her evidence of the Applicant rising early and leaving the unit to get out of her way also contrasts with the daughter's evidence of the Applicant, apart from the short period when he went swimming in the early morning, being still asleep until "after we leave".
Both Mrs and Ms Ismail spoke of the Applicant having difficulties at work shortly before his fall.
Mr Riad El Assad is the proprietor of the Digital Café, Neutral Bay and also sells mobile telephones. He is also the owner of a motor vehicle with the registration lettering of DEF-ROW. The Applicant frequents the café owned by Mr El Assad and "helps" him by wiping down tables. Mr El Assad speaks to the Applicant in Arabic and apparently humours him.
Mr El Assad gave evidence that he had given the Applicant a mobile telephone which did not have a "SIM" card, therefore while it could receive calls the Applicant could not use that telephone to send calls. As the Applicant liked to try to assist him, he had trained him to show customers dummy telephones and then to refer to him (El Assad) for the details of price and purchase plan.
Although Mr El Assad stated that at times the Applicant acted inappropriately and reacts badly to any stressful situation including shouting, he admitted that he did lend his motor vehicle to the Applicant.
Mr Titmuss is a licensed investigator employed by Adroit Business Advisers. He had taken video film of the Applicant on 26 and 28 February and 1 March 2001. On 1 March 2001 he entered the telephone shop and had a conversation with the Applicant which he remembered as:
Titmuss"I am interested in purchasing a mobile telephone."
Applicant"Just one moment, this person can help you."
(The Applicant indicated a male behind the counter.)
The other male then said to the Applicant:
"Show the customer the phones and the display cabinet."
The conversation continued:
"What type of phone would you be looking at buying?
Titmuss "A 3210."
Applicant "Well take a look at this one."
Titmuss "What type of plans do you have?"
Applicant "You can speak to this person about that."
and gestured towards the other person present.
Whereas Mr Titmuss is relying upon his memory to recount his conversation with the Applicant, the very fact that the Applicant is able to have a rational conversation with would be purchasers of mobile telephones and is permitted by Mr El Assad to drive his motor vehicle shows that he is not as disabled mentally as he has made out to the Tribunal. Mr El Assad did not impress me as the type of person who would tolerate a mentally disturbed individual approaching potential customers or would lend his motor vehicle, with its very individual number plates, to a person incapable of exercising proper control over it.
Taking all of the evidence before me into account I have concluded that the proper diagnosis of the Applicant's mental illness is that of a factional disorder. The criteria for that disease is stated at page 474 of volume IV of the Diagnostic and Statistical Manual of Mental Disorders as follows:
"A.Intentional production or feigning of physical or psychological signs or symptoms
B.The motivation for the behavior is to assume the sick role.
C.External incentives for the behavior (such as economic gain, avoiding legal responsibility, or improving physical well-being, as in Malingering) are absent."
As I understand the evidence of the Applicant's treating psychiatrist, Dr Cassimatis, he would not dissent from this diagnosis and it explains the variation in presentation between the Applicant as seen on video film and his presentation before the Tribunal and before some of the examining medical practitioners.
There is evidence that the Applicant suffered delusional mental behaviour prior to his fall at work. In the report of Dr Harvey dated 31 May 1983 (Exhibit A4) that doctor took a history of the Applicant being knocked over by a car driven by his brother-in-law and since that time of the Applicant having pain "over the whole lumbar region". When cross-examined on this point the Applicant's wife denied any knowledge of any such incident.
At Document T8 page 32 in matter N1998/727, a certificate from a Lebanese hospital state (in translation) that the Applicant was admitted to hospital suffering from typhoid fever and from stress. On 29 January 1997 a certificate was issued by a Dr Chen of the "Big Bear Medical Centre" to the effect that the Applicant was suffering from "stress and anxiety from workplace". This corroborates the evidence of the Applicant's wife and daughter that the Applicant was suffering stress at work prior to his fall.
Document T14 in matter N1998/727 is a report by a Commonwealth Medical Officer on the Applicant's fitness for duty and is dated 22 July 1992, apparently following the Applicant suffering a fractured patella. That doctor notes that the Applicant became emotionally distressed when discussing his thyroid problems and was anxious and distracted. On 11 November 1993 Dr Fitzgerald, a Senior Medical Officer with the Australian Government Health Service, reported (Document T16 in matter N1998/727):
"Mr Ismail told me … he has had a morbid fear of operations. … despite his constantly ruminating about the remote possibility that he had a malignant tumour, etc."
And at the second page of his report Dr Fitzgerald stated:
"The chronology of the subsequent events is very difficult to elucidate. Either Mr Ismail has no concept of time, dates, etc. or he is dissembling.
The story is that as soon as he was granted sick leave for his low back pain, he made a sudden decision to return to Lebanon to seek treatment for his thyroid condition. He apparently had no hesitation about undertaking a 22 hour plane trip with his back as it was. …
Mr Ismail told me that he developed what appears to be an acute panic episode in the doctor's office …"
Then at page 3:
"I found him very evasive when trying to pin down dates, sequence of events, etc. and when trying to elicit a history that might be compatible with being ill with typhoid fever. He had no evidence of thought disorder or other delusional behaviour. He demonstrated no insight whatsoever into the perspectives of Australia Post management of his bizarre sequence of sick leave certificates in the period we are discussing. …
In summary, for reasons that I could not determine today, even after lengthy discussion with the client, Mr Ismail suddenly decided in September of this year to return to Lebanon to have evaluation of a minor thyroid problem that had previously been thoroughly investigated by eminent specialists in the field at the Royal North Shore Hospital, 12-15 months previously. …"
Dr Fitzgerald concluded her report by stating:
"I could get nothing more specific out of him than that he had fever and some abdominal pain, did not match the clinical syndrome of typhoid which is a serious illness which starts with high fevers, constipation, severe headache and subsequently in the third week by an illness with diarrhoea. His lack of ability to describe a typical typhoid illness, plus the problems with discrepancies in certification, make me draw the conclusion that he did not in fact suffer this illness whilst overseas."
Following a reorganisation of his place of work at the Neutral Bay Post Office in January 1997, the Applicant became agitated. In a letter to the Regional Manager of Australia Post dated 29 January 1997 (T19 in matter N1998/727) he stated:
"I must point out to you that the reorganisation of the Mail-Room during my short absence without any consultation or input from me would seem to indicate a total break-down in participative management practices and makes a total mockery of Industrial Participation. Furthermore this is the way that work-related stress begins for the individual worker. I must ask you to take steps to ensure that the local Management at Neutral Bay Junction Post Office does not continue to breach its duty of care to me in my work-place in the present reckless manner."
A memorandum from the Post Master at Neutral Bay Post Office dated 12 February 1997 (T20 in matter N1998/727) states:
"In consultation with the new acting SPSO Gr 1 a number of changes which Mr Ismail had refused to accept were implemented and the Part Time Sorting Officer began to assist the Retail area.
Everything went smoothly until Mr Ismail returned from leave.
He refused to accept any of the changes made regardless of the fact that everything was working smoothly.
For example, in response to a small simple clerical task, Mr Ismail indicated he could not do it and would need three months training.
Furthermore he would not be doing other parts of his duties which he had done in the past but now did not want to do.
He spent a significant portion of the day telephoning the union and sending faxes to the union, Regional Manager, and Area Manager.
At 4pm (his finishing time is 5.51p) he signed off claiming stress …"
The above evidence shows that the Applicant was disturbed prior to his fall at work and even years before had exhibited bizarre behaviour, for example his claim, knowledge of which was denied by his wife, to have been knocked over by a car driven by his brother-in-law. His complaints of stress on previous occasions, and reaction to changes at his workplace, emotional reaction to thyroidism and an apparent panic attack whilst in Lebanon. The very fact he decided to return to Lebanon after investigations at Royal North Shore Hospital have been commented upon by the Commonwealth Medical Officer.
Whereas I am satisfied that the Applicant does have a factional disorder, I am not satisfied that it was caused or contributed to by his fall at work. Dr Cassimatis referred to an earlier paranoid element referable to his kidneys which had nothing do with his work. Then there are the various episodes of "stress" and other delusions referred to above. As I see it, the Applicant's employment was no more than the scene in which the development of his factional disorder took place, a purely inert factor upon which the Applicant's developing mental illness focussed its attention. This is illustrated by the reaction to being informed on 23 September 1997 that a return to work plan was to be implemented.
There is simply no evidence that anything in the Applicant's employment caused or contributed to his factional disorder. The Respondent paid compensation for the period during which Dr Cassimatis said that the Applicant had some of the symptoms of a post traumatic stress disorder but after that period no connection has been made out between any mental disorder suffered by the Applicant and his employment.
The decisions under review will be affirmed.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of;
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDates of Hearing 2 March 2001, 14 and 15 June 2001
Date of Decision 12 July 2001
Counsel for the Applicant Mr M K Minehan
Solicitor for the Applicant Mr S Smith,
Cameron Gillingham Boyd
Counsel for the Respondent Mr B Skinner
Solicitor for the Respondent Ms H Dejean,
Australian Government Solicitor
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