Klinge and Comcare (Compensation)

[2020] AATA 677

Klinge and Comcare (Compensation) [2020] AATA 677 (26 March 2020)

Division:GENERAL DIVISION

File Number:          2018/4233

Re:Stephen Klinge

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:  26 March 2020

Place:Brisbane

The Tribunal affirms the decision under review.

.................................[SGD].......................................

Deputy President J Sosso

CATCHWORDS  

COMPENSATION – diagnosed condition of schizophrenia – relationship between the Applicant’s first stress induced psychotic episode and schizophrenia – whether the Applicant’s schizophrenia was materially contributed to by his employment – Comcare not liable to pay compensation – decision under review affirmed.

LEGISLATION  

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES  

Casarotto v Australian Postal Commission (1989) 10 AAR 191

Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Halliday and Comcare (1994) 19 AAR 431
Holt v Comcare (2003) 130 FCR 576
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

REASONS FOR DECISION

Deputy President J Sosso

26 March 2020

INTRODUCTION

1. On 28 December 2017 Mr Stephen Klinge (“the Applicant”) submitted a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for permanent impairment (s. 24) and non-economic loss (s. 27) for schizophrenia – Exhibit 1 T28 pp. 97 – 111.

2. This claim was not accepted by Comcare in a decision dated 22 February 2018 – Exhibit 1 T33 pp. 121 - 131. Comcare, at the request of the Applicant, undertook an independent review of this decision. On 9 May 2018 the Comcare Review Officer affirmed the original decision – Exhibit 1 T39 pp. 132 – 135.

3. In reaching this decision, the Review Officer provided the following reasons – Exhibit 1 T39 pp. 133 – 134:

   “The issue to be decided in this reconsideration is whether you are entitled to compensation for schizophrenia, secondary to stress induced psychotic episode from 1994.

   To be entitled to compensation under section 14 of the SCR Act, the evidence must satisfy that the claimed condition arose from the same circumstances that led to your compensable condition, or was contributed to, to a material degree, by your compensable condition…

   Upon review of the medical evidence, there is insufficient information to suggest that either your Commonwealth employment or compensable condition was a material contributor to your ongoing condition of schizophrenia.  Whilst it is contended that it was schizophrenia that you initially presented with in September 1994, the evidence from Dr Cotton in April 1995 suggested that you experienced a reactive psychotic episode, which was in remission at the time.  Dr Cotton was also of the opinion that this was unlikely to reflect the true onset of schizophrenia.  Whilst it is acknowledged that your Commonwealth employment caused this one episode, the evidence does not support that the events that led to the episode, or the episode itself, were the cause of your ongoing schizophrenia.  Rather, it appears that this was merely the first time that your experienced an episode.

   Furthermore, you reported that you experienced a further psychotic episode in 2004 whilst employed with Queensland Police Service, and it was at this time that you received the subsequent diagnosis of schizophrenia.  It is unclear what the cause of this episode was, however it is evident that you had not been engaged in Commonwealth employment for some nine years at that time, and it is unclear how it contributed to the episode or subsequent diagnosis of schizophrenia.  This is supported by the medical evidence of Dr Wren, who wrote that there was no specific trigger for your condition.  Based on this evidence, a close and clear connection between your compensable condition and subsequent diagnosis of schizophrenia has not been established.  Furthermore, whilst your first episode coincided with stressful employment events, the evidence does not satisfy that these events, your Commonwealth employment, or the compensable episode in 1994 contributed, to a material degree, to your condition of schizophrenia.

   The evidence does not satisfy that your condition of schizophrenia was materially contributed to by your Commonwealth employment or compensable condition, therefore compensation is declined under section 14 of the SCR Act. It follows that compensation is also not payable under any other sections of the SCR Act for this condition.”

4. The Applicant applied on 6 July 2018 for a review of the decision of the Review Officer – Exhibit 1 T1 pp. 8 – 9.

5. The Respondent concedes (Respondent’s Outline of Submissions, 9 December 2019 (“ROS”) p.2 fn. 1) that the Applicant suffers from “schizophrenia with the specifier, multiple episodes, currently in partial remission (DSMV) [sic, the reference should be to DSM 5].”

6. The Applicant was born in 1970 and at the date of the Hearing was 49 years of age – Transcript (Tr.) 25.11.2019 p. 13.

7. After completing high school the Applicant enrolled at Griffith University, and was awarded a Bachelor of Informatics – Tr. 25.11.2019 p. 15.

8. The Applicant accepted a three year contract as a computer programmer with the Commonwealth Scientific and Industrial Research Organisation (“CSIRO”) in Narrabri, from 27 September 1993 – Exhibit 1 T4 p. 37, Tr. 25.11.2019 p. 16. When the Applicant filled this position, it had been vacant for over three months, causing the project he commenced working on to be considerably behind schedule – Exhibit 1 T7 p. 43.

9. The Applicant provided the following information regarding his employment with the CSIRO – Tr. 25.11.2019 p. 16:

   “To begin with, it was…enjoyable and fulfilling. If I can sum up, I asked to build a decision support system, which is a computer program, to assist cotton growers in managing pests.  Dr Gary Fitt, who was a CSIRO researcher, established – or developed some economic thresholds.  In layman’s terms, cotton crops can tolerate some damage to – by bugs and these economic thresholds were based on the most cost effective way to manage pests, while still producing a high yielding crop, cotton crop. So, my involvement was, as the computer programmer, those programs were released to cotton growers on a free basis as a technology transfer tool.”

10. The Applicant was employed in a “sub-program” which was headed by Mr Lance McKewen, Senior Research Scientist.  Mr McKewen prepared a statement which is dated 19 October 1994 in which he outlined the nature of the Applicant’s employment and how he was coping – Exhibit 1 T7 p. 43:

    “Because of the seasonal nature of the cotton industry the deadline for release of the computer software was fixed at October, 1994…

    Despite the delay in appointing Stephen, we were not unduly concerned about the time schedule. However some new programming tools were adopted and the lack of familiarity of all staff with these tools caused a series of frustrating delays as problems were encountered. A series of meetings with industry representatives also inflated the specification for the software, which was not finally fixed until April, 1994.

    As the conference deadline approached, staff working on the project, including Stephen Klinge, were working long hours, 7 days per week.  Stephen, as the programmer responsible for generating most of the final code, was working particularly long hours, both at work and at home. I would estimate he was spending 10 to 12 hours per day over a 7 day period around the beginning of August.

    In general he was cheerful and willing, but showed signs of fatigue and frustration as the deadline approached. I did mention that he should not feel compelled to spend such excessive hours on the project. However at the same time we remained committed to meeting the deadlines and other staff were also willingly working extra hours, so I did not actively try to prevent Stephen from working.

    At the conference commencing 10^th August we did successfully display the prototype software, although Stephen was not happy with aspects of the program. His room-mate reported him working on his computer in the wee hours during the conference, up to 3am in one case.  At that point I was concerned that his behaviour was perhaps obsessive and not beneficial under the circumstances. However, I was not able to prevent it at the time, partly because I was not fully aware of the extent of the problem.

    On returning to Narrabri after the conference I generally suggested that Stephen (and the rest of my group) take some time to recover, and I actively encouraged him to take some belated time off in-lieu.  He took one day in late August, which enabled him to spend a long weekend at the coast.  It was obvious that he was mentally exhausted and the day off barely allowed him time to recover.  At the same time the deadline for final release of the program (October 10) was rapidly approaching, and we realised that there was still a lot of work to be done.

    Stephen’s attitude to the project appeared to be fluctuating.  During the week beginning August 22, I observed that Stephen appeared overly confident about the status of the project, as if he was trying to put on a brave and cheerful face.  I wondered if he was becoming a little confused or unrealistic at that stage.”

11. On 3 September 1994 the Applicant suffered a stress induced psychotic episode.  The Applicant claimed that he was working long hours at work, was stressed, was unable to sleep properly and ultimately he was unable to make rational decisions – Exhibit 1 T4 p. 34.

12. The Applicant gave the following testimony about what then occurred – Tr. 25.11.2019 p. 18:

    “One morning, I don’t know why, but I packed up my belongings and into my car and drove to the coast where I was – I checked into a motel and then I was subsequently found in a psychotic state by the police and taken to the police station where – where my mother and my sister, my younger sister, attended the police station to pick me up. I was in psychotic state and after trying to take me home or to – sorry, not Narrabri, to take me to Noosa, in – in this psychotic state I tried to escape the vehicle and abscond.  I was then taken to the Macksville Hospital, transferred to the Coffs Harbour Hospital where an uncle of mine, David Klinge, visited me. I was then asked would I like to be transferred to a hospital closer to support, family support.  I agreed, so I was transported – transported to Nambour Hospital in Queensland.”

13. After being admitted to the Coffs Harbour Base Hospital the Applicant was examined and assessed by Dr Richard Williams, Staff Specialist Psychiatrist.  In his report of 5 September 1994 Dr Williams made the following observations – Exhibit 2 p. 3:

    “Mother tells me that she was in contact with him a week or so ago by phone when he sounded quite normal but felt he had been under work pressure.  There was no suggestion of any previous psychiatric problems or drug abuse including alcohol.

    When seen here two days ago he showed marked psycho-motor retardation with an almost inaudible voice and very slow responses.  He seemed to have a reasonable grasp of recent events but found great difficulty in expressing himself – he could certainly give no adequate explanation for his sudden exit from Narrabri.  After an uneventful night on the unit, his mother made an attempt to escort him back yesterday but he refused to get in her car.  It looks as though he is suffering from an acute psychotic illness which has yet to clearly define itself…”

14. On 5 October 1994 the Applicant submitted a claim for compensation for a “stress induced psychotic episode”, with a date of injury stated to be 3pm on 3 September 1994 – Exhibit 1 T4 pp. 32 – 39.

15. On 26 October 1994 Comcare accepted the Applicant’s claim for stress induced psychotic episode and agreed to pay compensation for time off work from 1 September 1994 until 13 November 1994 as well as any reasonable medical expenses – Exhibit 2 ST1 p. 1.

16. The Applicant, unfortunately, remained totally incapacitated for work and on 3 March 1995 Comcare wrote to him stating that before any further liability could be considered on his claim, he was required to attend a specialist assessment by Dr G Robbie, Psychiatrist – Exhibit 1 T9 p. 45. The Tribunal has not been provided with a report of Dr Robbie, however the Applicant was examined and assessed on 28 March 1995 by Dr Peter Cotton, Clinical Psychologist – Exhibit 1 T13 pp. 58 – 62.

17. Dr Cotton provided this analysis of the clinical features of the Applicant – Exhibit 1 T13 p. 60:

    “Mr Klinge has experienced an acute onset psychotic episode with clear delusional features.

    His psychiatric episode appears to have been reactive in nature and is directly related to sever environmental stressors (massive workload and over-involvement in work tasks).

    Mr Klinge’s condition is consistent with a formal diagnosis of a brief psychotic disorder with marked stressors (and is unlikely to reflect the onset of a true schizophrenia condition).”

    (emphasis in the original)

18. Dr Cotton gave the following opinion – Exhibit 1 T13 p. 61:

    “1. Mr Klinge presents with a recent reactive psychotic episode that is currently in remission.

    2. There were no indications of any major predisposing factors that are likely to have contributed towards the onset of his condition.

    3. It is likely that the identified work-related factors (excessive workload and deadlines, lack of systemic constraints on work involvement) comprised the direct precipitant for the onset of his psychotic episode.

    3.1 An element of concurrent social isolation probably also rendered him slightly more vulnerable because of the lack of any strong social/personal buffers.

    4. Mr Klinge is progressing well and his current clinical management is appropriate.  There were no indications that any additional treatment or psychological intervention is indicated at this time.

    5. It is recommended that Mr Klinge commence work on a graduated basis at the St Lucia laboratory in the second week of April….”

19. The Applicant was compensated for incapacity and treatment until the conclusion of his employment with the CSIRO on 27 September 1996. No further claims for compensation were made between 27 September 1996 and 28 December 2017 – Statement of Issues, Facts and Contentions of the Respondent, 2 December 2019 (“SIFCR”) para 9, p. 2.

20. The Applicant testified that since the 1994 episode he had been admitted to Nambour Hospital on eight occasions and “each time was involuntary treatment order” and on each occasion he was admitted for two weeks – Tr. 25.11.2019 pp. 18, 23.  In addition the Applicant was also admitted to Goulburn Hospital in New South Wales in March 2015 – Tr. 25.11.2019 p. 23.

21. When asked what triggered these psychological episodes, the Applicant gave this response – Tr. 25.11.2019 p. 18:

    “I don’t know.  I’ve suffered from delusions and psychosis ever since, off and on, but it doesn’t go away. It’s been with me for 25 years and I don’t know what causes it and there seems to be theories around what causes it.  You know, some use labels like schizophrenia or labels like stress induced psychotic episode.  All I know is I suffer from delusions and psychosis and I have good days and I have bad days it doesn’t seem to want to go away.”

22. In March 2011 the Applicant applied for the position of Data Analyst with Unity Water and in his application attached a CV which outlined his work history up until that time – Exhibit 2 pp. 34 – 44. When cross-examined the Applicant testified that the CV accurately stated his employment history – Tr. 25.11.2019 p 22.

23. The Applicant’s work history from September 1993 until March 2011 was as follows – Exhibit 2 pp. 39 - 43:

    (a)Analyst Programmer, CSIRO Cotton Research Institute, Narrabri, New South Wales, September 1993 – September 1994.

    (b)Analyst Programmer, CSIRO Biometric Unit, October 1994 – October 1996;

    (c)Intranet Developer, Golden Casket Lottery Corporation, April 1997 – May 1998;

    (d)Quality Assurance and Testing of the production system, Golden Casket Lottery Corporation, May 1998 – July 1998;

    (e)Internet Consultant, University of Guelph, Ontario, Canada, July 1998 – January 1999;

    (f)Analyst Programmer, Praxa Ltd, Brisbane, January 1999 – November 1999;

    (g)Internet Consultant, University of Queensland, January 2000;

    (h)Analyst Programmer, Scalable Data Systems, June 2000 – November 2000;

    (i)Systems Analyst, Architecture and Integration Group, Queensland Police Service, April 2001 – April 2005;

    (j)Database Administrator/Developer, 21^st Century Academy, November 2007 – September 2008; and

    (k)Database Administrator/Developer, Australian Publishing, APN News and Media, September 2008 – December 2010.

24. The Applicant subsequently was employed as by Unity Water as a data analyst and then was later employed as a bus driver – Tr. 25.11.2019 p. 22. At the date of the Hearing, the Applicant was unemployed.

25. At various times in the period 2000 – 2019 the Applicant has been in receipt of the Disability Support Pension – Exhibit 4 p. 5.

26. The Applicant called two witnesses at the Hearing: Ms Amanda Gow, a Griffith University colleague and roommate, and his sister, Ms Megan Withers.

27. The Applicant tendered a Statutory Declaration from Ms Gow, which was deposed on 22 November 2019 – Exhibit 3.

28. Ms Gow attended Griffith University,  studied for the same degree as the Applicant and shared a house with him at Jindalee  for approximately twelve months – Exhibit 4 paras  1- 2, Tr. 25.11.2019 p. 36.

29. Ms Gow deposed that she never saw any indication of the Applicant suffering from a mental condition whilst they were studying – Exhibit 3 para 4.

30. Ms Gow also gave evidence and testified that she was aware that he had suffered a mental breakdown whilst working.  She then went on to testify – Tr. 25.11.2019 pp. 36 – 37:

    “He was a completely different person after that happened, when I did see him, or spoke to him. Prior to that we spoke easily together, very – an easy conversation, whereas afterwards it wasn’t – it was a strained conversation, and, you know, I had calls from his mother about his mental breakdown, so that’s what I meant. I didn’t see any evidence of that prior to – to him going off to work.”

31. Later, however, Ms Gow  testified that her post university contact was with the Applicant sparse – Tr. 25.11.2019 pp. 36 - 37:

    “And after you completed your studies did you continue to remain friends with him?---I think we touched base about once every five years or so, probably more recently connecting though Facebook, but not face-to-face so much; I think probably only a handful of times since then…

    …After you and Stephen parted way when you completed your degree at Griffith University?---Yes.

    Do you recall the next time you saw him?---Good question. I don’t think I saw him again until possibly when I had – my kids, so, you know, that was like – over 10 years later I think. I spoke to him on the phone a couple of times, but I don’t think I saw him face-to-face or- for many years. I couldn’t tell you when.”

32. Although it appears that the Applicant attended Ms Gow’s wedding in approximately 1996, she did not recall his attendance – Tr. 25.11.2019 p. 38.

33. Accordingly, Ms Gow’s ability to ascertain discernible differences in the Applicant’s mental state was very limited, in that she did not recall having a face-to-face meeting with the Applicant for approximately ten years after she completed university. Further, it would appear that she was reliant on the information about the Applicant’s mental state provided by his mother, rather than from personal observation.

34. Ms Withers testimony was relatively short.  She testified that, to the best of her knowledge, none of her relatives, on either side of her family, with the exception of the Applicant, had been diagnosed with a mental illness – Tr. 25.11.2019 p. 40.

1. It should be noted that on 12 March 2015 the Applicant’s mother spoke to the Registrar of the Goulburn Hospital and provided a history of psychiatric disorder in her family with depression, autism and possible schizophrenia. In addition, a cousin of the Applicant visited him and reported that his nephew had committed suicide the year before, and had been talking about demons prior to his suicide – Exhibit 4 p. 6.

2. As the Applicant’s mother was not called to give evidence, the Tribunal is not in a position to form a definitive view about the strength of Ms Wither’s testimony. Suffice it to say, the Tribunal has before it conflicting evidence about this aspect of the Applicant’s family life.

3. As previously noted, the Applicant submitted a compensation claim for permanent impairment and non-economic loss which was dated 28 December 2017 – Exhibit 1 T28 pp. 97 – 111.  The Applicant’s treating General Practitioner, Dr Gregory Wren, diagnosed the Applicant with the following condition – Exhibit 1 T28 p. 100:

   “Major depression illness in 1994. Later diagnosed (2004) as schizophrenia.”

4. In a medical certificate dated 12 April 2018, Dr Wren sought to clarify his completion of Part B of the compensation claim – Exhibit 1 T35 p. 126:

   “The paperwork included a tick in the ‘aggravation of a pre-existing condition’ box as the paperwork was filled out for 28/12/2017.

   There is no suggestion that he was suffering from or diagnosed with any similar or pre-existing condition prior to his diagnosis in 1994.”

5. The Applicant testified that he had “struggled with employment ever since.” – Tr. 25.11.2019 p. 18.

6. It would appear that the Applicant was being treated in 2017 and 2018 by Dr Todd Cash, Consultant Psychiatrist.  In a letter of 9 April 2018 to Comcare, Dr Cash made the following observations – Exhibit 1 T34 p. 125:

   “Stephen is concerned that his claim may have been rejected because of confusion caused by his GP ticking all three boxes in Part B of the certificate issued 28/12/17. I wish to advise that Stephen’s first clear episode of illness occurred in 1994 and the claim was initiated at that time therefore his injury/disease should be categorised on the certificate for the purposes of the claim as ‘a new injury or disease’.

   Another issue with respect to the claim was that it took 10 years for the true nature of Stephen’s illness (as first manifest in 1994) to be recognised.  The initial diagnosis made in 1994 was that of ‘stress induced psychotic episode’. ‘Major depressive illness’ was recorded on certification in 1996. Schizophrenia was definitively diagnosed in 2004.”

7. The Applicant was interviewed on 7 May 2019 by Dr J G Reddan, Consultant Psychiatrist.  Dr Reddan prepared a detailed report which is dated 31 May 2019 – Exhibit 4.

8. Dr Reddan diagnosed the Applicant as suffering from Schizophrenia with the specifier, multiple episodes in partial remission (DSM 5) – Exhibit 4 p. 13.  In addition, Dr Reddan opined that the Applicant has probably experienced depression – Exhibit 4 p. 13.

9. In response to the Question of the date the Applicant’s Schizophrenia first developed, Dr Reddan provided the following response – Exhibit 4 p. 13:

   “Most individuals with Schizophrenia have a lengthy prodrome of the first obvious symptoms or signs of the condition.  Often the prodrome is subtle and so gradual that early symptoms are either attributed to other problems or conditions are seen as part of developmental changes.  He had been reported by his mother to have probably been unwell since he was at university and he experienced some academic difficulties but he was not clearly psychotic until approximately 1994.”

10. Dr Reddan gave the following response to the Question of whether the Applicant’s CSIRO employment had caused or contributed to either a material or significant degree to his mental condition – Exhibit 4 p. 14:

    “It is quite possible that Mr Klinge’s first episode of clear psychosis was contributed to by a material degree by his employment with the CSIRO in that he was working very long hours and all the employees had a deadline to have the particular work completed, however his work with the CSIRO did not cause him to develop Schizophrenia. Mr Klinge would have developed symptoms and signs of Schizophrenia eventually whether he had been employed by the CSIRO or not.  It is equally possible, that he found the work particularly stressful as his mental state deteriorated into psychosis.”

11. Dr Reddan went on to opine that the Applicant does not continue to suffer from the a stress-induced psychotic episode, and any “role of stress in precipitating the first episode of psychosis probably ceased within 6 to 12 months of the first psychotic episode” – Exhibit 4, p. 14.

12. Dr Reddan also gave evidence at the Hearing.  She went on to explain that most people with Schizophrenia have a prodromal period – Tr. 25.11.2019 p. 46:

    “Schizophrenia is a sort of process condition, it’s largely a neurodevelopmental condition, so it is slow in onset, and often one needs to know the longitudinal history to make the diagnosis, and part of that is the prodrome.”

13. Later, Dr Reddan testified that Schizophrenia is a “developing illness” and consequently – Tr. 25.11.2019 p. 47:

    “It’s rare that one would make a diagnosis of schizophrenia during the first episode.  Because it’s a longitudinal condition one has to have a period of time to actually see how the person goes over time.”

14. Then the following exchange occurred – Tr. 25.11.2019 pp. 47 - 48:

    “And so in this particular instance with Mr Klinge his condition was first accepted for the purpose of workers compensation as being described as a stress induced psychotic episode?---Yes.

    How does that relate to the diagnosis which has now been given of schizophrenia?---Well, that’s commonly what one observes. It appears often that the condition has come on suddenly during the first episode, or it certainly – or its attributed to circumstances at the time.  That’s a very, very common problem.  It’s only as the years roll on that it becomes apparent that this isn’t just due to some external stress or that.  Also it’s – it’s extraordinarily rare for individuals to actually develop a psychosis due to stress unless that stress is really severe and extraordinary.  There would have to be some sort of problem underlying, but often what happens is as the person’s deteriorating into psychosis they find their circumstances particularly stressful because they’re having trouble functioning. So the fact that it was called a stress induced psychotic episode isn’t surprising at all…

    In terms of the relationship between – if for a moment you assume that the first psychotic episode was, there was stress relating to work contributing to the first episode?---Yes.

    What effect does the first episode have on how Mr Klinge presents now, and the nature of his condition as it is now?---Mr Klinge unfortunately has schizophrenia and that first episode, as I said in my report, his perception of stress may have played a role in him developing more overt or more clear psychotic symptoms, but it didn’t cause him to develop schizophrenia.  He was going to become psychotic sooner or later, no matter what he was doing.”

    ISSUES

15. It is not disputed that the Tribunal will need to determine whether liability arises to pay the Applicant compensation under ss 14, 24 and 27 of the Act in respect of his diagnosed condition of schizophrenia.

16. Comcare submitted (ROS p. 2 para 5), and the Tribunal agrees, that the following issues potentially arise:

    (a)what medical condition does the Applicant currently suffer from?;

    (b)what relationship, if any, is there between that condition and the previously accepted compensable condition of ‘stress induced psychotic episode’?;

    (c)was the Applicant’s current condition materially contributed to by his employment with the CSIRO or the stress induced psychotic episode?;

    (d)if the Applicant’s condition is compensable does the Applicant suffer a permanent impairment as a result of that condition?; and

    (e)if so, what compensation, if any, is the Applicant entitled to under ss 24 and 27 of the Act?

    LEGISLATIVE REQUIREMENTS

17. Subsection 14(1) of the Act provides, subject to Part II, that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

18. It will be seen that that s 14(1) prescribes the threshold requirements for an employee to claim compensation under the Act. Once an employee meets the threshold requirements, compensation is payable, subject to satisfying the test(s) specified under the relevant statutory head of entitlement.

19. “Injury” is defined by s 5A(1) to mean:

    “(a) a disease suffered by an employee; or

    (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or 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), that is an aggravation that arose out of, or in the course of, that employment,

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”

20. Prior to the 2007 amendments to the Act, “injury” was defined in s 4(1) of the Act. The changes effected to the definition by the 2007 amendments do not impact on the matters before the Tribunal in this matter.

21. By virtue of s 5B(1) “disease” is defined as:

    “(a) an ailment suffered by an employee; or

    (b) an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”

22. Prior to the 2007 amendments “disease” was defined in s 4(1) of the Act. Whilst there now the contribution test is to a significant degree, prior to the amendments it was to a material degree.

23. When liability was accepted for the Applicant’s stress induced psychotic episode, the material degree contribution test applied. Likewise if there is a linkage between the Applicant’s current condition and his 1994 condition, then the material contribution test is applicable.

24. Reference can be made to the observations of Finn J in Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536 for guidance on ascertaining the meaning of “material degree”:

    “[13]…the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.

    [14] What is problematic is identifying where the threshold lies. Treloar’s case sets its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimus contribution or one which did not influence the course of events.  But once an employment  was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329.  It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe the contribution as ‘material’: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. The usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.

    There are, in my view, obvious hazards in allowing finely tuned nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions in the SRC Act were engaged.  This said I consider that one of the meanings of the word ‘materially’ in the Oxford English Dictionary probably captures the essence of what the legislature was conveying.  That meaning is –

    ‘4. In a material degree; substantially, considerably.’

    An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose ends’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.

    [16] Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can  ultimately be said is that the s 4 definition:

    (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;

    (ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);

    (iii) whether this will be so in a given case will be a matter of fact and degree.”

25. It is important in this context to refer to s 5B(3) which defines “significant degree” as a “degree that is substantially more than material.” It follows, then, that a “material degree” is substantially less than a “significant degree”. As his Honour Finn J explained above, what meets the threshold of a material degree is a matter of fact and degree, but it is clear that it is a more generous standard for an injured worker than that which applies following the 2007 amendments.

26. “Aggravation” is defined in s 4(1) to include “acceleration or recurrence.” Reference can also be made the following observations of Windeyer J in Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:

    “’Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom Co Pty Ltd v Semlitch…”

27. “Ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

28. The term “incapacity for work” is defined by  s 4(9)  as follows:

    “A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

    (a) an incapacity to engage in any work; or

    (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”

29. Entitlement to benefits under ss 24 and 27 of the Act is predicated on establishing a causal link with the accepted disease.

30. Both sections are located in Division 4, Part II of the Act which deals with injuries resulting in impairment.

31. Subsection 24(1) provides that where an injury to an employee results in permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. In determining whether an impairment is permanent, Comcare shall have regard, pursuant to s 24(2), to the following matters:

    “(a) the duration of the impairment;

    (b) the likelihood of improvement in the employee’s condition;

    (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

    (d) any other relevant matters.”

32. “Permanent” is defined by s 4 to mean “likely to continue indefinitely”.

33. “Impairment” is also defined in s 4 and means “the loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”.  This is a broad definition and has been given an orthodox application by the Tribunal; reference can be made to the following observations of the Tribunal in  Halliday and Comcare (1994) 19 AAR 431 at 441:

    “Consequently, there will be an impairment of part of the body or bodily system or function if it has been damaged in the sense that its usefulness or value has been diminished or if it malfunctions in the sense that it fails to perform normally or properly.”

34. The relevant test in s 24 applies where a disease results in permanent impairment.

35. Subsection 27(1) provides that where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under s 24, Comcare is liable to pay additional compensation in accordance with s 24 to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment. Subsection 24(2) prescribes how the compensation for non-economic loss is calculated.

36. In order that compensation is payable by Comcare an employee must suffer an “injury” – s 14. An injury can be disease or an injury (other than a disease) or an aggravation of a physical or mental injury (other than a disease) – s 5A.

37. The High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 has provided guidance on how to approach the required task. French CJ, Kiefel, Nettle and Gordon JJ made the following observations ([42] - [47], 479 - 481):

    “[42] The set of conditions answering the definition of ‘injury’ in the Act relevantly comprises two sub-sets, ‘disease’ and ‘injury (other than a disease)’, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.

    [43] As appears from the definition of ‘disease’, a ‘disease’ for the purposes of the Act must be an ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a disease. The ailment or aggravation thereof has to have been contributed to in a material degree by the employee’s employment by the Commonwealth.

    [44] An ‘injury (other than a disease)’ covers the other sub-set of ‘injury’. Various aspects of this limb of the definition of ‘injury’ should be observed.  First, the phrase ‘other than a disease’ means that if an employee establishes that they have a ‘disease’ within para (a) of the definition of ‘injury’, there is no need to consider para (b).  Secondly, ‘an injury (other than a disease)’ suffered by an employee must be ‘a physical or mental injury arising out of, or in the course of, the employee’s employment’ (emphasis added)  That is to say, the physical or mental injury has to have a causal or temporal connection with the employee’s employment. Thirdly, that need for a causal or temporal connection in respect of a ‘physical or mental injury’ in para (b) directly raises the question – what does ‘injury’ mean in that paragraph?

    [45] ‘Injury’ in para (b) is used in its ‘primary’ sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska if ‘something…can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of the word’ (emphasis added).

    [46] That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee…

    [47] However the Full Court correctly held, ‘suddenness’ is not necessary  to be an ‘injury’ in the primary sense…’suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and, in one sense, closely related) disease…But it is the physiological change – the nature and incidents of that change – that remain central.” 

38. In this matter it is not disputed that the condition the Applicant is suffering from is a disease and not an injury (other than a disease), and that the disease provisions outlined earlier apply.

    THE HEARING

1. A Hearing was convened in Brisbane on 25 November 2019.  The Applicant was self-represented and Comcare was represented by Mr Dube.

2. The Applicant gave evidence and was cross-examined by Mr Dube.

3. As previously noted, the Tribunal received evidence from Ms Gow, Ms Withers and Dr Jill Reddan.

   CONSIDERATION

   What condition is the Applicant suffering?

4. The first issue to be determined is what condition does the Applicant currently suffering from.

5. The Tribunal had the benefit of receiving the detailed and considered report of Dr Reddan and also observe her give evidence.  The Tribunal also had the benefit of considering the 6 April 1995 report of Dr Cotton. Insofar as the diagnoses of Dr Reddan and Dr Cotton differ, the Tribunal prefers those of Dr Reddan.  When Dr Cotton examined and assessed the Applicant he had only recently suffered his first stress induced psychotic episode. In contradistinction, a quarter of century elapsed before Dr Reddan assessed the Applicant, and she had the benefit of considering his medical history over an extended period of time.

6. The Tribunal accepts the following explanation given by Dr Reddan – Exhibit 4 p. 14:

   “It is not uncommon for first or second episode of psychosis to be diagnosed as being related to a number of other conditions and it is often only over time that the particular signs and symptoms of Schizophrenia become apparent.  The first episode was due to Schizophrenia.”

7. Comcare concedes (ROS p. 7 para 21), and the Tribunal agrees, that the Applicant is suffering from schizophrenia, multiple episodes, in partial remission.

8. Further, based on Dr Reddan’s diagnosis (Exhibit 4 pp. 13 – 14), the Tribunal finds that, on the balance of probabilities, the psychotic episode in 1994 was the first clinically significant psychotic episode in respect of the Applicant’s schizophrenia condition.  This finding is also consistent with the contentions of the Applicant – Statement of Issues Facts and Contentions of the Applicant (“SIFCA”) para 8.

   Relationship between the Applicant’s schizophrenia and the first stress induced psychotic episode

9. The Applicant contends (SIFCA paras 7 – 8) that if his schizophrenia existed before the events of 1994, then his first stress induced psychotic episode was the result of the aggravation of his underlying mental condition.

10. As previously pointed out, Windeyer J explained in Ogden Industries v Lucas (1967) 116 CLR 537, aggravation means that an existing disease has been made worse, not that it simply becomes worse.

11. Comcare submits (ROS para 23) that the evidence of Dr Reddan that the relationship between the Applicant’s schizophrenia and his first psychotic episode is linear or temporal and not causal.

12. Dr Reddan explained (Exhibit 4 p. 6) that schizophrenia “is a process condition and it is largely a neurodevelopmental condition.”

13. In Holt v Comcare (2003) 130 FCR 576 (“Holt”), the Full Federal Court made the following observations:

    “[33] There can be no doubt that the starting point for the appellant’s case was that, in 1985, she had suffered an aggravation of a pre-existing asthma condition.  Even if the appellant had wished to challenge the amendment, made in July 1986, to the description of her accepted condition, it would have been too late to do so.  Nor was it the appellant’s case that her working conditions had caused her to contract asthma.  At all times, her case was that her working conditions had caused an aggravation of her pre-existing condition.  The aggravating factors were alleged to have been climate changes, due to frequent travel, and stress, due to her workload and level of responsibility…

    [36] The appellant failed to persuade the Tribunal that she suffered a permanent aggravation of her asthmatic condition by reason of work-related factors.  It was not sufficient for her to prove that a return to work, under conditions similar to those the appellant had experienced between 1982 and 1985, would again aggravate her asthma.  To establish that factual proposition would only be to establish that a resumption of work involving the same conditions would cause a further aggravation of the underlying condition.  The question before the Tribunal was not whether there would be a further aggravation in the event of a return to work, but whether the aggravation that had occurred by 1985 was a continuing condition as at October 2000…

    [41]…Not only is there no finding of fact that the appellant’s underlying asthma was worsened as a result of the conditions to which she was exposed between 1982 and 1985, that was not even the case she put to the Tribunal.  Even her major medical witness, Professor Alpers, in a report dated 23 August 2001, which was tendered to the Tribunal, identified many trigger factors for the appellant’s asthma symptoms.  They included temperature changes, exercise, stress, house dust, cats, pollens, horses and various food agents containing metabisulphite. It is obvious that most of these factors had nothing to do with the appellant’s work conditions in and before 1985…”

14. The problem the Applicant faces in this matter is that Dr Reddan’s evidence, which the Tribunal accepts, does not support the proposition that the “stress induced psychotic episode” in 1994 aggravated the Applicant’s underlying schizophrenia condition in the manner explained by Windeyer J or the Full Federal Court in Holt.

15. At the Hearing the following exchange occurred between Mr Dube and Dr Reddan – Tr. 25.11.2019 p. 48:

    “And in terms of subsequent episodes of psychosis, the tribunal has cases before it involving conditions like major depression where the experts will say well, once you’ve had your first episode that increase the likelihood you’re going to have another one?---Yes.

    Is there a similar relationship in schizophrenia?---No.  With – there can be varying courses in terms of episodes of psychotic symptoms, that’s the positive symptoms, as they’re called.  They can vary years between where people don’t have symptoms.  It’s often quite unpredictable when that can occur or how often that occurs, or how severely it occurs.”

16. Dr Reddan testified that schizophrenia is “a neurodevelopmental disorder, and thought to be primarily biologically driven…the exact combination of genetic abnormalities isn’t known. There may also be….probably prenatal, perinatal or postnatal influences that become constitutional” – Tr. 25.11.2019 p. 49.

17. Dr Reddan went on to testify that the processes in schizophrenia that cause mental deterioration become more manifest and obvious as time goes on – Tr. 25.11.2019 p. 50. Further, Dr Reddan testified that irrespective of his work conditions, the Applicant   would have experienced the outward manifestations of his mental illness – Tr. 25.11.2019 p. 50:

    “And it would have occurred no matter what the situation?---Yes, unfortunately, Deputy President, it would’ve occurred eventually anyway.. And he was in the age group where it usually starts, the overt psychotic symptoms usually start becoming manifest in early adult life.”

18. In Casarotto v Australian Postal Commission (1989) 10 AAR 191, Hill J observed that “’aggravation’ connotes the disease becoming more severe…”

19. As Comcare submitted, the compelling evidence of Dr Reddan is that the only relationship between the Applicant’s current schizophrenia condition and the 1994 stress induced psychotic episode, is that the latter was the first severe external manifestation of the underlying schizophrenic condition. The 1994 psychotic episode did not cause the Applicant to develop schizophrenia, nor did it aggravate the underlying schizophrenia condition. It was, according to Dr Reddan, the first time that it manifested itself in a noticeable manner. Further, it was inevitable that this would occur at some time.  The Applicant’s underlying condition was not made worse by the psychotic episode. Instead, the disease simply externally manifested itself for the first time and continued to develop with the effluxion of time.

20. The Tribunal has before it a short report of 9 April 2018 from Dr Cash, a Psychiatrist who has been treating the Applicant.  His brief report has not greatly assisted the Tribunal and it is not clear if he disagrees with the overall diagnosis of Dr Reddan.

21. In any event, the Applicant has stated that Dr Cash declined to attend at the Tribunal Hearing and give evidence – SIFCA para 13.  The Tribunal, then, did not have the benefit of either considering a medical report of Dr Cash or observing him give evidence.

22. In these circumstances the only detailed and considered contemporary psychiatric evidence of the Applicant’s mental condition is that provided by Dr Reddan. The Tribunal was impressed by Dr Reddan’s testimony and accepts that the opinions she enunciated on the Applicant’s mental condition are cogent and there is no obvious reason for not accepting them as a proper basis for reaching conclusions, on the balance of probabilities.

23. The Applicant (Applicant’s Outline of Submissions (“AOS”) para 3) drew the Tribunal’s attention to the following observations of Windeyer J in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 at 637:

    “The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact.  It is a question on which the opinion of psychiatrists may obviously be helpful.  But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious.  The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community.  It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, the question must I think be answered, whoever has to answer it.”

24. The Applicant then submitted (AOS para 4 – 5) that Dr Reddan held a “rigid view” on the causes and development of schizophrenia, which was, “a divergent and inexact area of knowledge” while she had acknowledged that “theories regarding schizophrenia have changed and are still ‘evolving’”.

25. The Applicant correctly submitted (AOS para 6) that the Tribunal must not effectively allow Dr Reddan to make findings of material contribution and the like but must itself make the necessary findings of fact.

26. Psychiatry is an inexact and developing science. Psychiatrists and psychologists can provide expert opinion evidence on the mental condition of persons, but it is the role of the tribunal of fact to make the necessary factual findings. The Tribunal is not bound by the opinions of Dr Reddan, and it would be in error if it were to abdicate its role by accepting without question her diagnoses.

27. The task required of the Tribunal was very usefully summarised by Windeyer J in the quote above.

28. The Applicant relies on the evidence of Ms Gow.  The Applicant made the following submission (AOS para 8):

    “The evidence of Ms Gow was that between sharing a house with him in 1992 and seeing him at her wedding in 1996 (after the 1994 and 1995 psychotic episodes), the Applicant presented as a ‘different person’.  In simple terms this is the best independent evidence available of the extent of the ‘aggravation, acceleration, exacerbation or deterioration of his mental disorder’ that was contributed to by the employment.”

29. A previously noted, there are problems with Ms Gow’s testimony.

30. First, Ms Gow could not recall talking to the Applicant at her wedding, or even if he had been invited to the wedding. The following exchange occurred – Tr. 25.11.2019 p. 38:

    “MR KLINGE:  Was I invited to your wedding?---Were you? Probably. I can’t remember, to be quite honest, Stephen, it was too long ago.

    Was your reception a riverside venue?---Yes. Yes, you must’ve been there. Yes at Wanganui Gardens, yes.”

31. Second, apart from some rare telephone calls, Ms Gow did not recall having a face-to-face meeting with the Applicant, for approximately ten years after the completion of the Griffith University studies.

32. Third, it would appear that Ms Gow has relied upon information given to her by the Applicant’s mother about the Applicant’s mental condition.

33. Finally, the fact that the Applicant exhibited external signs of mental illness after the onset of the first psychotic episode does not of itself answer the Question whether there has been an aggravation of a mental ailment for the purposes of the Act.

34. After carefully considering and weighing all of the evidence presented, the Tribunal finds that the Applicant was suffering from schizophrenia prior to commencing employment with the CSIRO, and that the first psychotic episode was a linear one. The Tribunal accepts Dr Reddan’s evidence that irrespective of where the Applicant was working or what he was doing or what level of work-related stress he was experiencing, he would have had a psychotic episode.  The role of stress in the workplace in the events of 1994 is discussed below.

    Is the Applicant’s schizophrenia materially contributed to by his employment with the CSIRO?

35. The Tribunal notes the view expressed by Dr Reddan that the Applicant’s 1994 psychotic episode was possibly “contributed to by a material degree by his employment with the CSIRO in that he was working very long hours and all the employees had a deadline to have the particular work completed, however his work with the CSIRO did not cause him to develop Schizophrenia” – Exhibit 4 p. 14.

36. It is important to clearly explain what the evidence before the Tribunal suggests.

37. The Tribunal accepts that the Applicant was placed under considerable stress when he commenced working for the CSIRO.  The statements of Mr McKewen of 19 October 1994 and Mr Mac Story, Health and Safety Advisor, CSIRO North Ryde and Region clearly set out the pressures the Applicant was under and how his health began to deteriorate – Exhibit 1 T7 p.43 and Exhibit 1 T10 pp. 46 – 47.

38. When the Applicant was first examined and assessed by Dr Cotton in March 1995 it appeared as if the Applicant had experienced a reactive psychotic episode which was then in remission and that there were “no indications that any additional treatment or psychological intervention” was required – Exhibit 1 T13 p. 61. Dr Cotton was also of the opinion that identified work-related factors were the direct precipitant for the onset of the psychotic episode – Exhibit 1 T13 p. 61.

39. It was only in 2004 that the Applicant was first diagnosed with schizophrenia.  By the time that Dr Reddan examined and assessed the Applicant, his underlying schizophrenia condition had fully manifested itself.

40. Based on the expert evidence of Dr Reddan, the Tribunal accepts and finds that the stress the Applicant was undergoing led to the Applicant experiencing more overt or clear psychotic episodes.  The Tribunal also accepts Dr Reddan’s diagnosis that in all probabilities these symptoms would have resolved within six to twelve months - Exhibit 4 p. 14. In short, even if one accepted that there was an aggravation of the Applicant’s underlying schizophrenia, which the Tribunal does not, then the compensable aggravation would have ended many years ago.

41. The Tribunal does not accept that there is an existing liability to pay compensation because there is no cogent evidence that the Applicant’s CSIRO employment continues to have a material contribution to his schizophrenia.

42. In reaching this conclusion, the Tribunal has given significant weight to the evidence of Dr Reddan which was largely uncontested.

43. Having made these findings it is not necessary to answer the remaining questions.

    CONCLUSION

44. The Tribunal finds that Comcare is not liable under s. 14 of the Act to pay compensation to the Applicant.

    DECISION

45. The decision under review is affirmed.

I certify that the preceding 117 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...............................[SGD].........................................

Associate

Dated: 26 March 2020

Date of hearing:	25 November 2019
Applicant:	In person
Counsel for the Respondent:	Ben Dube, of Counsel
Solicitors for the Respondent:	Jamie Watts, Australian Government Solicitor