Kapetanov and Comcare

[2005] AATA 1005

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1005

ADMINISTRATIVE APPEALS TRIBUNAL  N° V2004/1091

GENERAL ADMINISTRATIVE  DIVISION

Re:  ROBERT KAPETANOV

Applicant

And:                  COMCARE

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:12 October 2005

Place:Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

COMPENSATION ‑ whether illness caused or aggravated by employment ‑ paranoid schizophrenia – permanent invalidity – causes of schizophrenia – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14

REASONS FOR DECISION

12 October 2005   Regina Perton, Member

1.       Mr Robert Kapetanov, who is 49 years old, worked for the Department of Defence for 12 years.  On 31 August 2000, he was granted a superannuation invalidity pension.  His last years at the Department were characterised by conflict with colleagues and management.  He raised a number of concerns while still working there that were investigated by an independent consultant who found that they had no substance.  In 2003, he was diagnosed as suffering from paranoid schizophrenia.  On 29 January 2004, he was given a permanent invalidity retirement pension.

2.       On 25 September 2003, Mr Kapetanov lodged a claim for compensation with Comcare on the basis that his illness arose through his stressful work in a stressful and classified environment.

3.       On 22 June 2004, Comcare determined that there was no evidence that Mr Kapetanov’s employment contributed materially to his medical condition.  On 13 September 2004, upon reconsideration, the decision was affirmed.  Mr Kapetanov lodged an application for review with the Tribunal on 22 September 2004.

4.       A hearing was scheduled for Monday, 18 July 2005 but during the preceding weekend, Mr Kapetanov sent an email to the Tribunal requesting that the Tribunal make a decision on the papers. Comcare’s representatives attended the hearing, unaware of the request. Ms Ann McMahon of Counsel, representing Comcare, consented to a hearing on the papers but lodged further documents. The Tribunal sent copies to Mr Kapetanov. Mr Kapetanov’s email response indicated that he did not have any substantive comments on the additional material. Pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 the Tribunal proceeded to review the decision by considering the documents provided to the Tribunal and without holding a hearing.

5.       The issue for the Tribunal in this matter is whether Mr Kapetanov’s paranoid schizophrenia arose as a result of his work; and if so, whether it is compensable under the Safety, Rehabilitation and Compensation Act 1988 (the Act).

EVIDENCE

6.       Accompanying Mr Kapetanov’s application to the Tribunal was a statement dated 15 September 2004.  In it he stated, among other things, that:

The nature of my permanent injury is such that no exact date for the injury can be set, however there is medical evidence to support that my injury was sustained during the course of my employment and that this work directly contributed to my injury.  This medical evidence is from Dr Mat Gelman and also from my reported medical history during my employment with the Department of Defence In 1992 and 1993.

7.       Mr Kapetanov provided the Tribunal with a copy of a letter dated 9 February 2004, which he had sent to Comcare, in which he provided a summary of why he believes his work contributed to his condition:

In June 1992 I was told by the Department of Defence that I would be required to undertake overseas postings to Shrivenham Military College England for six months and to Picatinny Arsenal New Jersey USA for six months.  I was required to relocate from my Department of Defence Melbourne office duties as soon as possible.  It was at this stage because of the stress of compulsory transfer to an overseas posting that I first experienced auditory hallucinations.  I transferred to the UK Ministry of Defence in September 1992 and at the end of my six month posting in England, I then relocated to Picatinny Arsenal New Jersey USA on March 1993 to work within the USA Department of Defence.

I completed my overseas postings in September 1993 and returned to the Department of Defence Melbourne to resume my work duties involving providing safety and ballistic advice to military personnel.  This work was stressful and in a stressful and classified environment which led to delusions of being persecuted and prominent auditory hallucinations which by 1998 were becoming more frequent and almost constantly present in 1999.

Due to my complaints of being threatened and persecuted by Department of Defence personnel, I was directed by Department of Defence Personnel to attend a medical appointment with Dr Peter Smith of Health Services Australia in July 2000.  I did not attend this appointment because I did not at that stage accept that I was ill.   I was subsequently suspended from my work duties in August 2000 and my position was terminated on 31 August 2000 for failing to attend a medical appointment and continuing to make allegations of being persecuted by Department of Defence personnel.

I believe the stress associated with being posted overseas twice within a twelve month period to work with the Ministry of Defence UK and the USA Department of Defence and the stressful and classified nature of my work duties both overseas and in Melbourne Department of Defence led to me experiencing auditor hallucinations and thoughts of being persecuted.

I was first treated for my illness in August 2002 at the Box Hill Hospital Upton House by Dr Eric Hu and subsequently as an outpatient at Koonung Mental Health Clinic Box Hill.  Both my treating doctor, Dr Mat Gelman, and my case manager Mr Andy Murugan agree that my illness was sustained during my employment with the Department of Defence…

8.       Mr Kapetanov provided the Tribunal with a letter from the Commonwealth Superannuation Scheme dated 29 January 2004, which confirmed that he is entitled to an invalidity benefit and that he has been deemed to have retired on the ground of invalidity on 31 August 2000.  He also provided a report by Dr A. Webster, Occupational Physician, dated 19 December 2003 in which Mr Kapetanov was assessed as being permanently unfit for any employment.  A report by Dr P. G. Smith, Consultant Psychiatrist, dated 23 December 2003, indicates that Mr Kapetanov is incapable of undertaking any gainful employment.

9.       Mr Kapetanov also provided copies of reports that had been prepared for the Commonwealth Superannuation Administration by Dr M. Gelman, Consultant Psychiatrist at Koonung Community Mental Health Centre.  In a report dated 1 September 2003, Dr Gelman states:

Mr Kapetanov has paranoid schizophrenia for which he has received treatment by this mental health services since August 2002.

He experienced bizarre persecutory delusions and prominent auditory hallucinations which had been presented for 4 years and were worsening.  He was referred by the police and CAT team for inpatient psychiatric treatment.  He was discharged from Upton House psychiatric inpatient unit at Box Hill Hospital as an involuntary patient on a Community Treatment Order and has subsequently been treated at Koonung Community Mental Health Service.

He has severe schizophrenia and associated disability.  His condition is long-term, having commenced in the late 1990’s.

He is treated with case management, the antipsychotic medication quetiapine, and by supportive and cognitive psychotherapy.

He has had a resolution of his positive psychotic symptoms, but remains unfortunately with moderate to severe negative schizophrenic symptoms.  He has poor energy, motivation, social or other interest, emotional or verbal expression, without him being depressed.  These features are likely to remain treatment resistant. 

His prognosis is therefore guarded.

His prospects for return to work and retraining are poor.

10.     Mr Kapetanov also provided the Tribunal with a copy of a Comcare form dated 16 December 2003, with handwritten entries by Dr Gelman.  Both this and the report cited above were provided to Mr Kapetanov by Dr Gelman.  In response to a  question on the form asking for a Diagnosis of current condition, Dr Gelman has written:

Paranoid schizophrenia.  The stress and a sustaining factor which considerably contributed to this condition was work-related.  The stress was associated with his Defense Dept duties in ’92 & ’93.

11.     Mr Kapetanov also provided the Tribunal with memoranda from Dr E. Hu, Medical Officer from the Box Hill Hospital, dated 26 August 2002 and 13 September 2002.  Dr Hu’s comments concern Mr Kapetanov’s admission as an involuntary patient, his diagnosis and other related matters.  There is no mention in either of the letters of any causal relationship between Mr Kapetanov’s illness and his work.  

12.     Professor G. D. Burrows provided a report to Comcare dated 21 February 2005.  Professor Burrows indicated that his comments were based on the papers provided to him, as Mr Kapetanov did not attend his scheduled appointments.  In relation to whether there could be a nexus between Mr Kapetanov’s work and his schizophrenia, Professor Burrows stated:

…The mention of possible work relationship is by Dr Gelman who mentions stress in relation to the employees duties in 1992.  This was during a period when he was posted overseas.  Dr Gelman fails to explain how the possible stress in 1992 and 1993 contribute to the manifestation of his condition nearly 5 years later. 

On looking at the information, I believe that employment has not contributed to the employee’s psychotic condition and I believe he has therefore no entitlements to compensation under the Act.

The modern viewpoint of schizophrenia is that it is a genetically predetermined condition.  It is a biological disorder.  I believe his beliefs concerning personnel at work were a manifestation of the illness, not the stress that caused the illness.

The onset of schizophrenia is slow.  The person develops stress responses because of the slow onset of the disorder.  To use an expression, it is the “cart and horse” argument where the illness is developing and the person becomes more stressed…  

13.     Comcare’s solicitors provided the Tribunal with a Respondent’s Statement of Medical Issues.  It contains a detailed summary of Mr Kapetanov’s symptoms, treatment and the medical and legal issues he has faced since he was first diagnosed with paranoid schizophrenia in August 2002.  It also contains a summary of the current medical views on the causes of schizophrenia with extracts from various publicly available reports.  Attached were extracts from the 2002 U.S Surgeon General’s Report, the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM IV) and several other medical research data bases.  All of these extracts attribute genetic factors with predisposing a person to paranoid schizophrenia.  Some researchers suggest that environmental influences may also play a part in determining if the genetic predisposition develops into schizophrenia; but how they interact, or if indeed they do, is not yet clear.

CONSIDERATION OF THE ISSUES

14. Compensation can be awarded for injuries suffered by an employee in the workplace under section 14 of the Act:

14(1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment…

15. Injury is defined in section 4 of the Act:

"injury" means:

(a)a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

16.     Having examined all the medical reports, the Tribunal is able to locate only one comment which suggests that Mr Kapetanov’s work contributed to his condition.  Dr Gelman commented on 16 December 2003, in the Comcare form submitted for permanent invalidity payments, that the stress and a sustaining factor which considerably contributed to this condition was work-related.  He also stated that the stress was associated with Mr Kapetanov’s work in 1992‑1993.  Dr Gelman has not provided any further explanation as to why he made the comment which formed part of the form for Mr Kapetanov’s claim for a permanent invalidity pension.

17.     Other doctors, including Dr Smith and Dr Webster, have described Mr Kapetanov’s work history, the way in which the symptoms manifested themselves and noted that his illness was untreated while he was working.  However, they did not suggest that Mr Kapetanov’s work contributed to his illness.  Rather, they noted that his then undiagnosed illness appeared to have contributed to his work problems.  Professor Burrows has firmly stated that schizophrenia is a genetically predetermined condition.  He suggests that a person develops stress responses as the disorder develops.  The various reports provided to the Tribunal on current research into schizophrenia support Professor Burrow’s comments.

18.     The Tribunal prefers Professor Burrow’s analysis to the single, unsupported comment by Dr Gelman.  Professor Burrows is Professor of Psychiatry at Austin Health and has written, researched and lectured widely on schizophrenia and other psychiatric illnesses.  Dr Gelman’s comments were provided on a form to enable Mr Kapetanov to obtain a retirement pension on the basis of invalidity, prior to retirement age.  Dr Gelman has provided no rationale or evidence for his short, hand‑written comment.  The Tribunal notes that there was no room on the form for more than a sentence or two.  However, it also notes that in a typed report prepared some three months earlier, for the same body, Dr Gelman makes no mention of Mr Kapetanov’s work causing his condition.  

19. Taking into account all the documentary evidence before it, the Tribunal is not satisfied that Mr Kapetanov’s overseas postings in 1992‑1993 or the nature of his work in Australia caused or aggravated his paranoid schizophrenia. Hence, Mr Kapetanov is not entitled to compensation pursuant to section 14 of the Act.

DECISION

20.     The Tribunal affirms the decision under review.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  18 July 2005
Date of decision:   12 October 2005
Advocate for the Applicant:          Self-represented
Counsel for Respondent:              Ms A. McMahon
Solicitor for the respondent:          Phillips Fox Solicitors