Kalman and Comcare
[2000] AATA 574
•13 July 2000
DECISIONS AND REASONS FOR DECISIONS [2000] AATA 574
ADMINISTRATIVE APPEALS TRIBUNAL ) No. Q1996/731
) No. Q1997/148
GENERAL ADMINISTRATIVE DIVISION ) No. Q1997/211
No. Q1998/133
Re DAVID KALMAN
Applicant
And COMCARE
Respondent
DECISIONS
Tribunal Mr K L Beddoe (Senior Member)
Date13 July 2000
PlaceBrisbane
Decision The decisions under review are affirmed.
(Sgd) K L Beddoe
Decision No. 574/2000 Senior Member
CATCHWORDS
COMPENSATION : Incapacity payments – Liability for accelerated Coronary Heart Disease – Strain and Anxiety Depression – Supply of property – "Material contributing factor"
Safety, Rehabilitation and Compensation Act 1988 – s4, s14, s16
Re Kalman and Commonwealth of Australia (1986) 10 ALN 91
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
REASONS FOR DECISIONS
Mr K L Beddoe (Senior Member)
There are four applications for review before the Tribunal. In essence these applications raise the following issues:
(a)Q1996/731 – On 26 October 1995 the applicant made a claim for angina which the respondent accepted as a claim for acceleration of coronary heart disease and admitted liability (T7). The respondent subsequently deferred payment for treatment with Simvastatin pending a claim to be made for hyperlipidaemia and hypercholesterolaemia. That claim was subsequently made and liability denied by the respondent. On internal review the decision was affirmed. The effect was to deny liability for treatment with Simvastatin. The applicant applied for review in this Tribunal on 16 September 1996. The application for review was premature – there having been no internal reconsideration of the decision when the application for review was made. A valid application for review was made on 30 December 1996 (Exhibit 10).
(b)Q1997/148 – By a notice dated 12 February 1997 the respondent revoked its determination dated 16 February 1996 to accept liability for accelerated coronary heart disease. The Tribunal subsequently stayed the implementation and operation of the decision under review (Exhibit 11).
(c)Q1997/211 – Following the acceptance of liability for accelerated coronary heart disease (as above) the applicant applied for supply and maintenance of a digital mobile telephone service as an aid or appliance. On 21 August 1996 that claim was denied and that determination was affirmed on 3 May 1997 (Exhibit 12).
(d)Q1998/133 – In a wide ranging letter dated 5 January 1994 to the respondent's delegate the applicant included a claim for compensation in relation to the "condition of Strain and Anxiety Depression". That claim was refused by the respondent on 11 October 1994, which decision was revoked on 21 February 1995 when the respondent accepted liability. Proceeding on its own motion the respondent revoked that decision on 18 February 1998 so as to deny liability for the claim (Exhibit 13).
Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that the respondent is liable to pay compensation, in accordance with the Act, for an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
"Injury" is defined in section 4 of the Act and includes a disease as defined. Disease is defined to mean any ailment suffered by an employee or an aggravation of any such ailment where there has been contribution in a material degree by Commonwealth employment (s4(1)).
Section 16 of the Act provides for compensation in respect of medical treatment obtained in relation to an injury. The section applies whether or not the injury results, inter alia, in incapacity for work (s16(2)). Section 16(3) broadens the meaning of medical treatment to include, inter alia, the supply of property but is limited to circumstances of supply by qualified persons.
The four applications were heard together. At the hearing and resumed hearing the applicant conducted his own case and Mr Clark appeared for the respondent. The applicant objected to the documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Those documents were before the Tribunal as the "T" documents but only as evidence of the existence of the documents and not as evidence of the facts and opinions asserted in the documents.
In other proceedings under the Freedom of Information Act 1983 the Tribunal directed amendments and annotations be made to a number of documents in the T documents. In the result amended sets of T documents giving effect to that decision were before the Tribunal as follows:
Exhibit 11 - Q1997/148
Exhibit 12 - Q1997/211
Exhibit 13 - Q1998/133.
Exhibit 10 is the amended T documents in Application No. Q1997/39. That application is not before me but it replicates application Q1996/731.
Other documents were also tendered and marked as exhibits and oral evidence was given by the applicant, an officer of the respondent, Dr Lim, a consultant cardiologist, and Dr Stephenson and Dr Reddan who are both psychiatrists. The Tribunal also has before it the transcript of some evidence given by Dr Richards, psychiatrist, in an earlier case (Exhibit C).
The Applicant's EvidenceMuch of Mr Kalman's evidence was given in relation to his concerns about the decision making process and personal bias on behalf of the decision-makers and medical specialists. I have considered that evidence and concluded that it is of no assistance in making my decisions except as to one aspect which I will refer to.
The applicant said, and I accept, that he has a heart pacemaker for which the respondent accepted liability. As to the diagnosis of his medical conditions I prefer to rely on the medical evidence before the Tribunal.
In Re Kalman and Commonwealth of Australia (1986) 10 ALN 91 Senior Member Ballard made the following findings of fact which I adopt for the purpose of dealing with the present applications:
"The applicant had been in the Army. He was involved in two separate incidents in 1957. The first, in Victoria, involved the applicant falling while practising for a military tattoo. The applicant's commanding officer saw the incident and inquired as to the applicant's condition: the applicant replied that he was "all right" but "felt a bit sore". The applicant was off work for the rest of the day of the incident and the following day. The second incident, in Brisbane, occurred on 22 December when the applicant dived into a water-hole and hit his head. The applicant was admitted to hospital for several days and then discharged.
The applicant returned to work. He began to get pains in his back but these were not severe until October 1958. The Army Medical Board considered that the applicant was medically unfit to remain in the Army. The applicant claimed that he requested the Board to advise him of the reasons for its conclusion but that the Board refused to do so. The applicant consulted an orthopaedic surgeon, Dr Lahz, who wrote a report which included the following: "Clinical examination showed no definite abnormality but the X-rays of his back showed mild changes due to healed osteochondritis". The applicant stated that he had consulted Dr Lahz to obtain support for his application to the Medical Board, not because he knew he had a back injury. With this report, the applicant applied to the board to reconsider its opinion but this application was refused. The applicant was discharged in February 1959."In a letter to the respondent dated 26 October 1995 (Exhibit E & Exhibit 11) the applicant said that on 29 September 1995 he was walking from the Gateway Hotel to the Commonwealth Law Courts Building (in Brisbane) carrying two overnight bags containing files when he experienced "excruciating pain" in the centre of his chest requiring that he stop walking on at least three occasions until the pain decreased. He said that he had also experienced similar pain while loading files into a car "to go to the AAT in Cairns" but does not say when. I infer it was prior to the incident on 29 September 1995. He said he was treated for angina by his general practitioner.
In a letter dated 9 June 1996 the applicant refers to a further incident while in Brisbane "awaiting the AAT hearing date" (7 June 1996) when the applicant says he suffered a heart attack on a train resulting in hospitalisation (Exhibit 11).
The evidence given by an officer of the respondent has been considered but I am satisfied that it is of no assistance in deciding these applications.
The Medical EvidenceExhibit 1 is a report by Dr Lim, Consultant Cardiologist, dated 29 January 1996 and addressed to the respondent's delegate. Dr Lim describes a history of heart disease from admission to Cairns Base Hospital in October 1995 with bypass surgery on 24 October 1995. He noted premature artery disease the most significant factor being hyperlipidaemia. He thought the heart disease may have been unmasked by stress. He does not consider stress to be a factor in causation of heart disease which he considered was likely to have occurred in any event. He suggested cholesterol lowering treatment with aspirin for treatment. Dr Lim was of the opinion that the applicant's back condition did not cause the coronary artery disease.
Exhibit 2 is a further report by Dr Lim dated 26 June 1996 and addressed to Dr Goldfeder who I understand to be the applicant's general practitioner. Dr Lim reported an episode of palpitations while in Brisbane to attend this Tribunal. He diagnosed AV nodal re-entrant tachycardia and recommended changed medication and further investigation.
In a further report dated 12 August 1996 addressed to the respondent's delegate (Exhibit 3) Dr Lim reiterated that the cardiac condition related to ischaemic heart disease contributed to by hyperlipidaemia in turn caused by diet and genetic factors. He noted stress as a factor but not a major cardiac risk factor. In relation to hyperlipidaemia he was definite that there was no causative link with congenital abnormality of the spine and crush fracture to the T8 vertebra. He was also definite that there was no causative link from headaches, blurred vision, Anxiety, Depression and acceleration of symptoms of coronary heart disease and no causative link with his employment by Department of Defence. He did attribute some contribution by stress caused by the applicant's compensation claims which he said was 10-25% of the likely cause. In oral evidence Dr Lim said the cardiac condition was caused by constitutional factors, high cholesterol, with the condition being unmasked by the stress in relation to the compensation claims.
Dr Lim gave evidence about Hypercholesterolaemia. He said it may be caused by genetic, dietary, thyroid problems, kidney problems or liver problems. He said cause was multi-factorial. Depression is not such a factor. By itself it does not cause a heart attack but by clogging of the arteries due to high cholesterol a heart attack may be the consequence.
In his oral evidence Dr Lim drew a distinction between depression and stress as causes of heart disease which he said they were not and stress and depression as accelerants of existing heart disease, which he said they were. In relation to exercise he said that a lack of exercise did not, in his opinion, cause high cholesterol. Nor was it caused by symptoms of back pain.
Dr Lim said that tachycardia was also found. Tachycardia is caused by a short circuit in the heart resulting in palpitations and is not connected with coronary heart disease. Dr Lim was not the treating doctor and his opinion appeared to rely on his reading of the Cairns Base Hospital file. However Exhibit E includes a letter dated 12 August 1996 addressed to the respondent's delegate in which the following appears:
"I would be pleased to provide you with a general description of Mr Kalman's condition. However my last review of him was on 19th June 1996 and I have not subsequently seen him.
From my point of view his cardiac condition relates to ischaemic heart disease and recurrent palpitations, likely to be related to a congenital "short circuiting" i.e. dual AV nodal pathways. He has hyperlipidaemia which is likely to be diet related as well as contributed to in part by genetic influences.
In replying to the Department's questions I find it very difficult as the questions are broad and specific questions may be more appropriate. For example, the stress after his employ with the Department of Defence may have allowed the manifestation of the coronary artery disease to become apparent earlier. It is certainly open to debate whether the stress is the primary cause of his heart disease as currently stress is not recognised as a major cardiac risk factor, although a contributing one.
He has had bypass surgery on 24.10.95 but since then has reported episodes of chest pains. I have requested an exercise Thallium test on him but he has not proceeded with this request. He has palpitations which have been documented on ECG to be a supraventricular tachycardia and currently is on Sotalol 40mg bd. I have not had a chance to review him as he has not returned for review."In my view that is a fair summary of Dr Lim's evidence before this Tribunal.
Exhibit A is an earlier pro-forma response by Dr Lim to the respondent dated 11 April 1996. He diagnosed Ischaemic Heart Disease, Stress, and AV nodal recurrent tachycardia.
The applicant put Dr Lim's credit in issue on the basis that the witness was biased against the applicant. Dr Lim explained, in response to the applicant's questions, that he had taken a stand against the applicant sexually harassing one of the doctor's staff. Also, in response to the applicant's questions, Dr Lim said that he had warned his staff to be careful when dealing with the applicant because he made "slanderish remarks" about people on radio and because he secretly recorded conversations. He also indicated he may have had words with the applicant over his failure to attend for a Thallium test. While Dr Lim was clearly dissatisfied with aspects of the patient/doctor relationship there is nothing in the evidence which suggests his evidence on medical matters has been biased by the unsatisfactory relationship.
Exhibits F and G satisfy me that Simvastatin is an appropriate lipid lowering treatment for the applicant's hyperlipidaemia with hypercholesterolaemia and I so find.
Dr Burman has prescribed Simvastatin with Noten and Astrix for the ongoing treatment of Coronary Heart Disease and has prescribed Ducene, Ciprannil and Zyprexa for the ongoing treatment of the applicant's "strain and anxiety depression" (Exhibit H).
Exhibit K is a report by Dr Tan, Consultant Cardiologist dated 20 March 1998, addressed to Dr Ling (a partner of Dr Lim) and which reports on cardiac procedures performed at Townsville General Hospital. The report makes it clear that the applicant suffered serious ischaemic heart disease. Dr Ling said he had assured the applicant that his cardiac prognosis "is good".
Exhibit C is an extract from transcript of the evidence given by Dr Richards, psychiatrist, before Senior Member Muller in 1988. It is apparent from the transcript that Dr Richards had diagnosed the applicant as having a lifelong personality disorder. He said that the applicant's physical disabilities would be heightened in their effect on him by this personality disorder. The disorder resulted in a lack of personal responsibility – always perceiving others to be at fault for adverse situations. Dr Richards said there was no mental illness when he saw the applicant describing the applicant as having a vulnerable personality. I have not taken into account two reports by Dr Richards in Exhibit 7 because of the applicant's objections.
Exhibit B is three reports by Dr Stephenson, Community Psychiatrist, employed by Queensland Health, and dated 18 February 1994, 13 December 1994, and 29 April 1997. Dr Stephenson adopted a different position to Dr Richards. She found an obsessive personality with paranoid features obsessed with his compensation claim with insight into the problems caused by the obsessive behaviour. Dr Stephenson considered that the applicant's depression and anxiety were secondary to the ongoing physical pain and incapacity caused by the accepted back condition together with psychological strain of the compensation case. In the latter regard Dr Stephenson said in effect that the compensation claim had been running for 30 years and she advocated that the claim should have been conceded. It is not clear, however, as to which claim Dr Stephenson thought should be conceded.
In the report dated 13 December 1994 Dr Stephenson diagnosed depressive illness with anxiety attributable in part to his long term disability following the neck and back injuries, and partly attributable to frustration experienced in relation to the compensation claims. Dr Stephenson expresses her own frustration because the applicant apparently refused to accept treatment unless it was funded by the respondent. She prescribed medication but this was inadequate because of the applicant's refusal. Dr Stephenson says she overcame this by supplying free medication to the applicant but apparently without improvement. Dr Stephenson was of the opinion that the applicant was totally disabled for work.
Dr Stephenson also gave oral evidence. She said she had disagreed with Dr Richards' diagnosis of long standing personality disorder but now accepts that is the case and that injuries do not cause personality disorders. She further said in answers to questions by Mr Clark that the compensation claims were a significant factor in causing the applicant's depression. In so far as Dr Reddan suggested that depression was not a significant issue Dr Stephenson said she disagreed with Dr Reddan and said, in effect, that the applicant suffered ongoing depression. Given Dr Stephenson's responses to questioning by Mr Clark I am satisfied she attributed the ongoing depression to the ongoing claims for compensation and the fact of them not being resolved.
Exhibit 7 is a medico-legal report by Dr Reddan, Consultant Psychiatrist, dated 27 January 1997 and addressed to the respondent's delegate. Much has been said to me about this report and the respondent's failure to provide documents to Dr Reddan. The applicant has also claimed that Dr Reddan was paid an excessive fee for the report. While I would not wish to be seen to be excusing the obvious inefficiency of the respondent when referring the applicant's case to Dr Reddan I am satisfied that the inefficiency of the respondent has not been reflected in the professional opinion of Dr Reddan. As to the allegations by the applicant that Dr Reddan was paid an excessive fee for the report I am satisfied that there is no substance in this allegation by the applicant. In particular I am satisfied that schedule fees payable under the National Health Scheme are not a relevant guide when, if it is necessary to do so, deciding the reasonableness of the fee for a medico-legal report. I am not satisfied that the fee paid to Dr Reddan was paid and accepted in circumstances that in any way reflect on the creditability of Dr Reddan's report.
Dr Reddan examined the applicant on 13 November 1996. She made a detailed report diagnosing a personality disorder with mixed narcissistic obsessional and paranoid traits. In response to the following specific questions she said:
(a)Was the employment the principal cause of the employee's condition? – Definitely not!
(b)Would the employee have contracted the disease or suffered the aggravation, acceleration or recurrence of the disease if it had not been for his or her employment? Definitely!
(c)To what extent do you believe that the employee's employment contributed to the contraction of the disease or the aggravation or acceleration or recurrence of the disease? Initially Dr Reddan answered 25-50% but in response to a query by the respondent she said there was an error and the answer should have been 0-5%! (Exhibits 7, 8 & 9).
Dr Reddan's oral evidence confirmed her findings in the written report. She said that the applicant had not told her about physical and sexual harassment said to have been experienced while serving in the Army and put to Dr Reddan in cross-examination by the applicant; Dr Reddan answered on the basis of assuming the harassment had taken place. She was of the opinion that although distressing at the time such harassment would not normally lead to enduring psychological difficulties. Dr Reddan said the applicant's desire to not leave the Army and his disappointment at being discharged early on medical grounds was inconsistent with allegations of harassment causing serious distress. In particular Dr Reddan said that the applicant said at the time she examined him that he got on well with the other soldiers.
Consideration
In submissions the applicant attacked the evidence of Dr Lim and Dr Reddan on creditability grounds. He said the Tribunal should adopt the evidence of Dr Hayes and Dr Steffen (Exhibit F) and the written and oral evidence of Dr Stephenson.
The respondent's submissions attacked the applicant's credit on the basis that he is an unreliable historian. In particular the harassment claims had not previously been made. Dr Stephenson who is advocating the applicant's case does not mention the harassment claims. As Dr Stephenson and Dr Lim made clear, it is the applicant's claims for compensation and the stress arising from those claims that is the cause of anxiety and depression. See also Dr Goldfeder's report (Exhibit 11/23). Further there is no causative link between the applicant's employment in the Army and the condition hyperlipidaemia.
In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 the Federal Court considered a claim for compensation under the 1971 Compensation legislation. The claim was for a condition diagnosed as malignant melanoma caused by exposure to sunlight. The applicant worked as a Telecom linesman.
In considering the appeal the Full Court relied on dicta in the judgments of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. In particular the Full Court had regard to the following dicta of Windeyer J at 641:
"When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
The Full Court said at 328:
"Consistently with what was said by Windeyer J, "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not "contribute".
The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."
I am therefore required to be satisfied that it is more likely than not that incidents in the applicant's Army service were a contributing factor to:
(a)the applicant's Coronary Heart Disease; or
(b)the applicant's Strain and Anxiety Depression.
It is well accepted that I must be satisfied that it is more likely than not that incidents in the employment were a contributing factor. A mere possibility is not sufficient to be so satisfied. But I can be so satisfied if an incident in the course of the subject employment was but one of several contributing factors.
In relation to the claim for Strain and Anxiety Depression the evidence of the applicant does not establish any basis for a finding that incidents in his Army service were in any sense a cause of this condition. In 1988 Dr Richards diagnosed a life long personality disorder and the evidence of Dr Stephenson and Dr Reddan does nothing to show this diagnosis to be wrong. Dr Richards described a vulnerable personality. It may well be the case that such a person would be adversely affected by, for example, workplace harassment. I am not satisfied that is the case here. Dr Stephenson did not consider the issue because she wasn't told that it was an issue. Dr Reddan did give it consideration and was of the opinion that there would be no enduring psychological difficulties, assuming harassment had taken place during Army Service.
Dr Stephenson found the applicant to be chronically depressed but attributed that to the applicant's obsessive behaviour in relation to his compensation claims (Exhibit B).
I am not satisfied, on the balance of probabilities, that the applicant's Army service incidents were in any way a contributing factor to the claimed condition. If it was necessary to do so I would accept Dr Stephenson's diagnosis of Chronic Depression – Personality Disorder with paranoid obsessional narcissistic traits (T19/70).
As to the claim for accelerated coronary heart disease I am satisfied that the contributing factors do not include incidents in the applicant's Army service. Dr Hayes diagnosed hypercholesterolaemia requiring aggressive lipid lowering. Dr Lim said it was unlikely that the compensible injuries were the principal cause of the condition. He said that anxiety, depression and anger attributable to the compensation claims would be a contributing factor likely to aggravate and symptomatise the pre-existing heart disease.
I am not satisfied, on the balance of probabilities that the heart disease was contributed to by incidents in the course of the applicant's Army service. That follows from the lack of satisfaction that the claim for Strain and Anxiety Depression should be accepted.
Being satisfied that the claim conditions have no causative link with the applicant's Army service I am satisfied that the Commonwealth does not have any liability under the Act for the conditions of Angina – Coronary Heart Disease and Strain and Anxiety Depression however diagnosed.
It should not be assumed that if I had agreed that the condition Angina – Coronary Heart Disease was compensible that I would allow the claim for the mobile telephone. I would not. I am not satisfied that a mobile telephone used for other purposes can in any sense be treated as an aid or appliance for rehabilitation.
The decisions under review will be affirmed. The applicant's request for an order for costs must also be refused.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member.
Signed:
T G Lowther
AssociateDates of Hearing 17 & 18 November 1998; 7 & 8 October 1999
Date of Decision 13 July 2000
Representative for the Applicant In person
Counsel for the Respondent Mr ClarkSolicitor for the Respondent An officer of the Australian Government Solicitor
0
3
0