Judge and Comcare - [2002] AATA 367

DECISION AND REASONS FOR DECISION [2002] AATA 367

ADMINISTRATIVE APPEALS TRIBUNAL

Nº V2000/595

GENERAL ADMINISTRATIVE DIVISION

Re: IAN CALVIN JUDGE

Applicant

And: COMCARE

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Mr A. Argent, Member

Date: 20 May 2002
Place: Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member
COMPENSATION — aggravation of endogenous depression – anxiety and secondary depression – whether effect of aggravation ceased – whether permanent impairment
Safety, Rehabilitation and Compensation Act1988

REASONS FOR DECISION

20 May 2002 Mr B.H. Pascoe, Senior Member
Mr A. Argent, Member

This is an application to review a decision of the respondent dated 2 May 2000 which affirmed a prior determination of 10 January 2000 that on and from 22 December 1999 the respondent was no longer liable to pay compensation for aggravation of pre-existing endogenous depression resulting in anxiety and secondary depression, and that the applicant had no entitlement to compensation under s.24 of the Safety, Rehabilitation and Compensation Act1988 ("the Act"). The applicant had originally lodged a claim for compensation on 19 April 1990 and liability had been accepted. A further claim for permanent impairment was made by the applicant on 18 June 1998.
At the hearing the applicant, Mr I. Judge, was represented by Mr M. Nightingale, of counsel, and the respondent by Mr J. Lenczner, of counsel. Evidence was given by Mr Judge, his wife and four psychiatrists, Dr J. Garland, Dr P. Kornan, Dr W. Glaser and Dr J. Burvill. In addition to statements by these witnesses, the respondent tendered a 1988 report from the late Dr J. Scott, a psychiatrist (exhibit R3), a statement from Mr A. Long, a person who had worked with Mr Judge in the 1980s (exhibit R4), extracts from income tax returns of Mr Judge from 1989 to 2000 (exhibit R5) and a summary of files relating to rental properties owned by Mr Judge (exhibit R6). The Tribunal had also the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (T1-T43).
Mr Judge was born on 5 December 1947 and commenced working at the Australian Taxation Office ("ATO") after leaving school in 1966. Apart from a 12 months leave of absence in 1981-1982, he continued working for the ATO until July 1989 and was retired on the grounds of invalidity in February 1990. In 1979, Mr Judge was a senior staff clerk in the office services area of the ATO. The work involved responsibility for the physical condition of the ATO offices in Victoria. At one time there were nine city offices, three country offices and one suburban office. Mr Judge was responsible for building security dealing with emergency situations, and the implementation of new systems and equipment within the buildings. He said that, through the 1980s, there was a large increase in staff and his responsibilities, resulting in a need to work considerable additional hours. For two weeks out of every six, he was on close call restriction for 24 hours per day. He instanced being called out after hours to deal with emergencies such as security alarms going off and flooding of areas in the main office building, caused by a broken water main. In addition, he was frequently required to work on weekends to arrange moving of offices, renovations or installation of new equipment or systems so as not to disrupt operations during the working week.
Mr Judge said that progressively through the 1980s he found it increasingly difficult to cope with the demands and stresses of the work. He said that he developed symptoms of sleeping difficulties, anxiety, tension, indigestion, chest pain, irritability, social withdrawal and loss of energy. In the 1980s he took sick leave and recreation leave to seek a break from the work but said the level of improvement in his condition became less and less with each break. In November 1988 he was referred by his general practitioner to a psychiatrist, Dr Scott. Mr Judge saw Dr Scott regularly until the doctor died in 1992 when he continued treatment under Dr Garland. Since 1988, he has been on medication for depression and anxiety. Mr Judge maintained that the stress and pressure of his responsibilities were exacerbated by difficulties in the relationship with his then superior, Mr Grady, appointment of staff with inadequate training and disputes regarding underpayment of his allowances from June 1988.
Mr Judge said that he had difficulty accepting the views of Dr Scott and admitting to a mental illness in 1988. He said Dr Scott advised him to consider leaving the work but, at the time, he thought he was coping and he was in the midst of involvement with a new telephone PABX system with significant problems. He said that prior to 1980 he was active in the social life of the ATO staff, had a wide range of personal friends and believed that he was "easy to get on with". By the end of the 1980s, people tended to avoid him; he became irritated easily and, at one time, physically and verbally attacked a fellow worker. He said that, currently, he experiences regular headaches, is intolerant of others and a loss of energy limits his ability to complete a project.
Between 1989 and 1991, Mr Judge assisted his daughter in a kindergarten cleaning contract. In 1989 he owned four investment properties, has since purchased two other properties and sold five of them. He performed various maintenance tasks on the properties, including replacing kitchens, painting and plaster repairs, and re-tiling. Any such work is done alone as he said that he is unable to work with other people. He said that he forgets tools and equipment at times and, if tenants are not waiting, finds it difficult to maintain a timetable or any sense of urgency. Mr Judge said that, primarily, he had purchased investment properties at the lower end of the market, often with need of renovation. He had done his own conveyancing in relation to the purchase and sale of properties. He has one property in South East Queensland and drives there to inspect the property. In one year (he thought 1996) he went to Queensland three times to repair storm damage. He renovated the kitchen, pulling out and replacing cupboards, re-tiling, repainting and installing a new sink, which he took with him from Melbourne. The work took some months and he endeavoured to do as much of the work himself as was possible. In 1991, a house at Camberwell was vacant for almost a year while Mr Judge demolished the bathroom, arranged for it to be rebuilt by others, installed a new ceiling, repainted the house and generally cleared and repaired the house. He said that he was at the house on a daily basis for a major part of the year. Mr Judge said that, since 1995, he has handed over management of the properties to an agent.
Mr Judge said that he purchased a property in Vermont South in 1999 for the purpose of rebuilding a home for his wife and himself. He said that he spends considerable time at the property but is having difficulty completing any specific work or adopting a systematic approach to the work. On occasions, he stays for a period at the new property although there is, as yet, no cooking facility. He accepted that he and his wife have problems and is concerned about her capacity to live and cope with his difficulties. At times he had stayed away from home deliberately to avoid distress to his wife when he sensed that trouble might be brewing in himself.
Mr Judge said that the 12 months leave of absence from early 1981 to early 1982 was to enable him to assist his brother in the establishment and operation of a newsagency in Queensland. He said that the arrangement between himself and his brother did not work out. While the business itself operated successfully, the personal relationship between the brothers deteriorated and it was agreed to sell the business. Mr Judge said that the long hours and physical effort involved in the business took a toll on both of them and disputes arose, particularly as Mr Judge believed that his brother and sister-in-law were taking money from the till. He said that the rift between them took some years to settle and, in retrospect, he had wished that he had not agreed to join in the venture. He denied any loss of money from the venture. Mr Judge said that the episode caused him to focus on what he described as a "real job" with the ATO.
Mr Judge accepted that much of the overtime worked and being available on call was by his personal choice. He accepted also that he had borrowed substantial sums for the purchase of investment properties but did not believe that he had any financial problems in the 1980s such as to pressure him into working overtime to derive the additional income.
Mr Judge said that he had never considered taking on any employment since 1990 as he did not want to put himself in a situation which might result in an embarrassing failure such as a breakdown similar to that in 1989. He accepted that no medical practitioner had said that he could not or should not work but said that neither had anybody told him he should seek work. He said that, for a period, he had assisted a friend who was away overseas by handling his business paperwork on two days per week. The friend was involved in marketing real estate and Mr Judge said that he collected receipts from salesmen, checked the banking, entered the records in books of account and supervised his friend's real estate trust account. Some 12 months ago Mr Judge assisted his daughter in the conveyancing work in relation to her house. He accepted that he had difficulties facing up to the preparation and lodgement of income tax returns, with the 1998, 1999 and 2000 returns being lodged very late. However, he maintained that this was a motivational issue rather than a financial issue.
Mr Judge accepted that he had some history of stress and anxiety prior to 1979. When his mother died in 1978 he suffered a severe grief reaction although Mr Judge said that he did not suffer a breakdown at the time and did not believe that his reaction was abnormal. He accepted also, that, about that time, there were difficulties in relation to a new baby.
Mrs Judge said that her husband had been conscientious and dedicated to his work. She believed that he had been "reasonably healthy and emotionally stable". She said that she noted a change in Mr Judge after the return from Queensland in early 1982 with him becoming increasingly affected by stress in his work. He started to become less able to function efficiently, leaving tasks incomplete and becoming depressed and withdrawn. She said that he was experiencing panic attacks, increasing social withdrawal, irritability, headaches, heartburn, indigestion and disturbed sleep. She said that it was becoming increasingly obvious to her that he could not continue at his work and was not surprised at the psychiatric advice to cease work. Mrs Judge believed that, after ceasing work, there had been some improvement in Mr Judge's psychiatric condition but that he remains in poor condition and his ability to organise and complete tasks is at a considerably lower level than in the early 1980s. She said that, while Mr Judge was upset at the death of his mother, she believed that "he would have got over it within a few years". In relation to the business venture with Mr Judge's brother in Queensland, Mrs Judge said that there was no significant financial loss but that it had been a shock for Mr Judge to find that his brother was addicted to drugs. She said that Mr Judge had been upset at the need to sell some of his investment properties and at not achieving the financial security that he had envisaged from such investments. Mrs Judge acknowledged that her husband had assisted her with preparation of documents, letters and advice in relation to a dispute she had in relation to redundancy pay as a disability support worker. She said he was better than she in business or legal dealings and the management of paperwork.
Dr Scott, who has since died, saw Mr Judge on referral from his general practitioner on 3 November 1988. In his report to the general practitioner on 24 November 1988 he referred only to the severe grief reaction on the death of Mr Judge's mother and the Queensland business venture which "ended in disaster". He said that:
… The overall picture of course is that he is of a strong, obsessional personality. The diagnosis is that of an insidious endogenous depression in the setting of the personality which is more than likely to end in such an illness.

In a report to the respondent of 20 December 1990, Dr Scott noted the difficulties experienced by Mr Judge in coping with his work and noted, also, that he had been seen in the past by other psychiatrists. Dr Scott concluded:

…
In view of this man's continual breakdown when faced with stress in the work situation it could be undesirable to even suggest that he return to the workforce in any circumstance.
This man is of very obsessional personality.
Such individuals become their own worst enemy and when they begin to ruminate on their workload and find that they cannot delegate responsibility they overload themselves and literally "blow a fuse". His conduct raises alarm signals when one finds that he is so frustrated by strangers blocking the access to the rear of his offices that he damages their cars and blocks them in such a way that they cannot move without causing further damage.
The somatization of his frustration is such as to produce physical symptoms of illness. When one considers his family history it must be accepted that if he continues to be exposed to such frustrations that inevitably he will have problems with either cardiac arrest or cardiac malfunction.
The work situation has greatly affected his condition and I strongly recommend that he be totally distanced from the work in taxation.

Dr Garland succeeded Dr Scott as the treating psychiatrist for Mr Judge from October 1992. In a report to the respondent dated 25 September 1995, Dr Garland noted that Mr Judge had considered that he had suffered an emotional breakdown in 1982 and that his problems had begun in 1978 when his mother died, his younger daughter was born and he had come under the supervision of a very unpleasant supervisor at work. In a report to Mr Judge's solicitors on 15 June 1998, Dr Garland said that:
… Mr. Judge suffers from a major recurring depressive/anxiety reaction, associated with ongoing frequent anxiety and panic attacks and he suffers from chronic and at times severe depression with suicidal ideation and he was frequently tearful and despondent at interview.

He considered that Mr Judge was permanently incapacitated regarding his former employment with the ATO but was capable of some form of comparable employment which would not put him into a vulnerable workplace situation. He considered that Mr Judge suffered from constitutionally determined depression and anxiety associated with his obsessional personality characteristics which had been aggravated in a major way by his employment with the ATO. Dr Garland, who sees Mr Judge on a monthly basis, believed that the condition of Mr Judge had not changed from October 1992 to date. In his oral evidence, Dr Garland said that the condition suffered by Mr Judge, endogenous depression, was constitutional and not reactive but, usually, comes in cycles and can be masked at times. He believed that a long period of stress, as experienced by Mr Judge, can have a prolonging effect on a depressive condition. While Dr Garland accepted the patients with such depressive conditions will tend to look for reasons and causes of their condition, he believed that Mr Judge was a genuine man who could concentrate on his past work problems.

Dr Kornan saw Mr Judge on 18 June 1998 and 6 February 2001 and provided reports dated 22 June 1998 and 13 February 2001. Initially, Dr Kornan's diagnosis was "endogenous depression resulting in anxiety and secondary depression". After the second visit Dr Kornan changed his diagnosis to "chronic major depression", "indications of an underlying compulsive personality disorder" and "chronic anxiety". He considered Mr Judge as "… someone who has had obsessive characteristics all his life and these would be progressively getting more disabling as he got older" and that it appeared "… as if his psychiatric difficulties were overtly related to his mother's death and then aggravated by his employment". Dr Kornan considered that, on the balance of probabilities, employment aggravation still continues to a degree, that his condition could be considered as stabilised and permanent. In his oral evidence, Dr Kornan said that Mr Judge's depression has constitutional type characteristics with a reactive component. While he accepted that the effect of an aggravation such as work stress can cease, he believed that the excessive stresses of the ATO workplaces had produced a strong reactive component to Mr Judge's condition which was ongoing.
Dr Glaser examined Mr Judge on 28 November 1991 and provided a report dated 9 December 1991. In that report Dr Glaser said that Mr Judge was suffering from a resolving depressive illness, that employment had made a material contribution to his psychological state and that the contribution then still existed. After a second examination on 10 December 1997, Dr Glaser provided a report dated 22 December 1997. His then diagnosis was that Mr Judge was suffering from the residual symptoms of a depressive disorder, which was then of very mild severity. He said that there were a number of causes of the then condition, including:
…
a.His longstanding personality style, which involves obsessional and perfectionistic personality traits. (I note, in particular, the comments of his treating psychiatrists, Dr. Scott ad Dr. Garland, regarding these).
b.The death of his mother around the time of the birth of his younger daughter in 1978, which appears to have had a profound effect on his mental state.
c.Various stresses associated with his employment, as summarized above and detailed in the various materials you have on file.
d.Some recent medical problems including glandular fever and hepatitis which have had sequelae of fatigue and lack of motivation; these are common effects of these sorts of illnesses.

In that report, Dr Glaser was of the view that, after nine years from cessation of employment, the time when any employment-related contribution will have ceased to exercise any material influence on the further development and progress of his symptoms was approaching. In both reports, Dr Glaser was of the opinion that Mr Judge was capable of carrying out a wide range of employment and noted his activities in managing and renovating several properties and legal work in pursuance of his wife's claim for back pay. Dr Glaser finally re-examined Mr Judge on 28 December 2000 and provided a further report dated 29 December 2000. In that report, Dr Glaser said that Mr Judge continued to suffer from a depressive disorder which was then of mild to moderate severity. He did not believe that the condition was any longer related to employment. Dr Glaser was of the opinion that a range of misfortunes since 1997 together with the pre-existing vulnerability to the development of a depressive illness were adequate to account for the then current nature and severity of the depressive symptoms. These misfortunes were described as an unsuccessful appeal against a decision to reduce compensation benefits to exclude the overtime content, the need to sell some of the rental properties, the departure of Mr Judge's children from home, the consequent strain on the marriage, being pursued by the ATO for non-lodgement of income tax returns and action by the Health Insurance Commission to recover payment for medical expenses payable by the respondent. Dr Glaser was of the opinion that Mr Judge's then current impairment would have been of the same nature and severity at that stage of his life, regardless of the nature of, or stresses associated with his employment. Dr Glaser believed that, in 1997, Mr Judge's psychiatric problems had virtually resolved and that, with more extensive and appropriate treatment, his 2000 condition could again improve substantially. He felt that a worst case scenario was Mr Judge being left with some permanent impairment of mild or negligible severity.

Dr Burvill examined Mr Judge on 28 September 1998 and provided a report dated 6 October 1998. He was of the opinion that Mr Judge suffered from a low-grade anxiety state as a reflection of his obsessional personality. He did not consider that there was any relationship between Mr Judge's current functioning and previous employment. He was of the view that any employment contribution had ceased by the time Mr Judge saw Dr Glaser in November 1991. In his report, Dr Burvill said:
…
I consider Mr Judge's problems have always been a reflection of his intensely obsessional personality and he is typical of persons with that personality in that they embrace any activity fiercely, and just as fiercely embrace the illness role. Once they focus on their life's problems as being due to illness, they become introspectively vigilant regarding any variation or shortcoming in their functioning. Mr Judge certainly displays this, and displays a powerful sense of being a martyr, attempting to acquire some abiding sense of purpose in life by re-enacting his father's role of what he considered to be martyrdom.
Mr Judge does not appear to have gained any worthwhile sense of achievement from his employment, and from the records provided, has turned the deep sense of loss and anger at abandonment, as it were, by his mother when she died, into a sense of anger and aggression to all around him in the workplace and in his home.
Currently he appears to lead a productive life, as Dr Glaser noted, but with a firmly held conviction that his way of doing things and his plans must be adhered to and that his opinions are almost invariably correct. From that stance he uses the fuzzy logic which says that therefore he could not go to work and work with others because he needs to make his own decisions and not have other people seek to be involved. This is, of course, a self-perpetuating logic for the continuance of his illness role and his attitudinal stance of self-preservation.

Dr Burvill, in his oral evidence, said that workload stressors can lead to a diagnosis of adjustment disorder which, generally, ceases when the events cease. He believes that in the case of Mr Judge the work factors were of importance for a brief period only.

For the purpose of an examination of Mr Judge by the Commonwealth Medical Officer on 18 September 1989, his supervisor, Mr Brogan, who had worked with Mr Judge for some 20 years, prepared a report setting out his duties and comments on his performance. Subsequently, Mr Brogan provided comments on the long written explanation by Mr Judge included with his claim for compensation dated 12 April 1990. Mr Brogan confirmed the significant stresses of the work caused by a significant growth in the number of employees requiring accommodation and services, the moving of offices, the substantial overtime worked and the requirement to be on call. He said that he had seen a significant deterioration in the health and performance of Mr Judge since 1985-1986. He became more obsessive with completion of even minor tasks required to be perfect, constantly challenged policies and activities of others and unable to answer a question in a simple straightforward way. He avoided social activity and had become totally job oriented. Mr Brogan has since died.
Dr Kenny, a psychiatrist, saw Mr Judge on 5 March 1991 and reported to the respondent by letter dated 5 March 1991. Dr Kenny saw Mr Judge as "… a man with obsessional traits and a vulnerability to react to stressors in his environment with anxiety and depression". He considered that Dr Scott's reference to Mr Judge's propensity to "blow a fuse" was a reasonable description of what happened. Dr Kenny had no difficulty in accepting that work stressors would have been largely responsible for the anxiety and depression precipitating cessation of work but, at the time he saw Mr Judge, did not believe that he was any longer depressed. Dr Kenny was of the opinion that, well within a year of Mr Judge leaving work, the stresses of work had ceased to have caused any significant condition. He was of the view that Mr Judge was not incapacitated for work but he would continue to be vulnerable to react in the same way as he had in his previous work.
The two questions before this Tribunal are whether, from 22 December 1999, Mr Judge's employment continued to contribute to a psychiatric illness and whether the employment contribution had resulted in a permanent impairment of 10 per cent or more which became permanent after 1 December 1988. There is no dispute among the psychiatrists that his employment had contributed to a psychiatric condition in July 1989 when Mr Judge ceased work. The difference in views now lies on whether employment continued to make such a contribution.
It appears to us to be relevant that, when Mr Judge saw Dr Scott in 1988, the commencement of any depressive condition was said to have been in the late 1970s to 1982 and the significant factors were seen as the death of his mother, the birth of a daughter and "a disaster" with the business venture in Queensland with some difficulties in coping with work. Progressively in subsequent histories taken by psychiatrists, the factors of the late 1970s-early 1980s appear to have been significantly downgraded by Mr Judge with the major emphasis on work stresses. One stressor, which occurred in 1981-1982 and which was noted by Dr Scott but was not included in the histories taken by any other psychiatrist, was the failed business venture with the brother of Mr Judge in Queensland. The only reference by the other psychiatrists, if noted at all, was in connection to family relationships and commented that Mr Judge had some falling out with his brother in the past but they had become reconciled subsequently. In his evidence Mr Judge said that there had been some suspicion of his brother taking money from the cash register but Mrs Judge referred to the shock suffered by her husband on finding that his brother was a drug addict. She said, further, that she first noted the change in Mr Judge after their return from the failed venture in 1982.
Of the psychiatrists who either treated or examined Mr Judge, only Dr Garland, his current treating psychiatrist, believed that his ATO employment was still contributing significantly to his condition. Dr Kornan believed that the aggravation by employment still continues "to a degree". Unfortunately, Dr Scott, his initial treating psychiatrist, has died and only those early reports are available. Nevertheless, he saw Mr Judge shortly prior to and after cessation of employment and, while stating that the work situation had greatly affected his condition, concentrated on the stressors in the late 1970s and early 1980s which were not work-related and the vulnerable personality. It could be assumed that, if Dr Scott considered the work stresses as a significant cause of his then condition, he would have said so. His views appeared to be more that Mr Judge's personality was not suited to the type of work he was then undertaking. Drs Glaser, Burvill and Kenny were all of the opinion that, while employment aggravated Mr Judge's condition, the effect of such aggravation had ceased. Drs Burvill and Kenny considered that the effect had ceased by 1991 whereas Dr Glaser considered that the effect had ceased some time between 1997 and 2000. Only Dr Glaser referred to Mr Judge having suffered glandular fever and hepatitis some time between 1991 and 1997 with their sequelae of fatigue and lack of motivation.
From the evidence of Mr and Mrs Judge, it would seem that Mr Judge coped reasonably well after ceasing the ATO employment in that he was involved in buying, selling and renovating several properties, managed the business affairs of a friend who was overseas, assisted his wife and daughter in legal or semi-legal work and undertook some other manual work. He acknowledges that several psychiatrists have said that he is capable of working in suitable employment, no one has told him he cannot or should not work but argues that no one has told him he should work. The evidence of Mr Judge seems to indicate a more recent difficulty in coping and Dr Glaser referred to factors such as glandular fever and hepatitis, daughters leaving home, effect of his obsessional personality on his marital relations, difficulty with income tax returns, difficulty with the compensation claim and difficulties with rental properties.
On balance, and preferring the evidence of Dr Glaser, supported by Drs Burvill and Kenny and, to a degree, the emphasis by Dr Scott on non work-related factors, we find that the effect of the employment aggravation on Mr Judge's psychiatric condition, while material at the time, had ceased by 22 December 1999. It follows that the decision to cease liability from that date should be affirmed. In our view any psychiatric condition suffered by Mr Judge after that date is the result of an underlying constitutional personality condition which may well be currently aggravated by non employment-related factors. Opinions of the psychiatrists vary as to whether Mr Judge has any permanent impairment and, if so, whether any such impairment relates to an aggravation from employment. While Dr Glaser believed that, with appropriate medication and therapy, the prognosis could be regarded with reasonable optimum, neither Dr Glaser nor Dr Burvill considered that any current impairment was employment-related. Dr Kornan assessed permanent impairment of 20 per cent but, in oral evidence, had some difficulty in supporting that level of impairment. On balance and again preferring the evidence of Drs Glaser and Burvill, and our finding that employment no longer contributes to the condition of Mr Judge, we find that there is no entitlement to lump sum compensation under s.24 of the Act. The decision of 2 May 2000 should be affirmed.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Mr A. Argent,               Member
(sgd)       Catherine Thomas
              Clerk
Dates of Hearing:  6 June 2001
  20-21 August 2001
  18 December 2001
Date of Decision:  20 May 2002
Counsel for the Applicant:            Mr M. Nightingale
Solicitor for the Applicant:           Messrs Patrick Robinson & Co
Counsel for the Respondent:       Mr J. Lenczner
Solicitor for the Respondent:       Messrs Sparke Helmore