Kowalski v Military Rehabilitation and Compensation Commission
[2009] AATA 38
•21 January 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 38
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos S2005/112, S2005/308,
VETERANS’ APPEALS DIVISION ) S2005/309 and S2006/185
Re KAZIMIR KOWALSKI Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President B T Lander
Dr E Eriksen, MemberDate21 January 2009
PlaceAdelaide
Decision The Tribunal:
(a) Affirms the decision of the respondent in S2005/112.(b) Affirms the decision of the respondent in S2005/308.
(c) Affirms the decision of the respondent in S2005/309.
(d) Revokes the decision of the respondent in S2006/185 and instead affirms the decision of 22 May 2006 denying the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or psychiatric illness.
B T Lander
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – compensation claim – applicant sought review of four decisions affirming determinations of the respondent disallowing claim for compensation – major depression and generalised anxiety, heart attack, obesity and Type 2 diabetes, duodenal ulcer – claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or psychiatric illness – nature of AAT’s inquisitorial role – applicant had long unsuccessful litigation history against former employer within State system leading to order declaring him a vexatious litigant – whether applicant’s psychiatric illness and coronary problems had causal link with applicant’s military service – whether applicant received treatment for psychological illness whilst in Army service – applicant developed duodenal ulcer whilst in Army service – liability initially admitted by Army – medical opinion as to cause of ulcer had changed – applicant no longer suffered from duodenal ulcer – decisions under review affirmed – application dismissed.
Administrative Appeals Tribunal Act 1973 (Cth)
Compensation (Commonwealth Employees) Act 1971 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Workers Rehabilitation and Compensation Act 1986 (SA)
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Brennan v Comcare (1994) 122 ALR 615
Bushell v Repatriation Commission (1992) 175 CLR 408
Canute v Comcare (2006) 86 ALJR 1578
Comcare v Canute (2005) 148 FCR 232
Comcare v Levett (1995) 131 ALR 645
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kazimir Kowalski v Mitsubishi Motors Automotive Ltd (No 2) [1996] SAWCAT 111
Kowalski v Military Rehabilitation and Compensation Commission [2007] AATA 1988
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154
Re Beigman and Secretary, Department of Social Security (1992) 29 ALD 332
Treloar v Australian Telecommunications Commission (1999) 26 FCR 316
REASONS FOR DECISION
21 January 2009
Deputy President B T Lander
Introduction
1. Section 64 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) empowers a claimant under that Act to apply to the Administrative Appeals Tribunal (AAT) for a review of a reviewable decision. A reviewable decision is a decision made under s 38(4) or s 62.
2. Section 38(4) provides a procedure whereby Comcare, a body established under the Act, which has the functions in s 69 of the Act, reviews a determination made by a rehabilitation authority. Section 62 is the procedure whereby a determining authority, being the person who made a decision made under particular sections of the Act (a determination), reconsiders that determination of its own motion or by request by the claimant, the Commonwealth or a Commonwealth authority. The decision by the determining authority is a reviewable decision which entitles the claimant to a merits review in the AAT: s 64.
3. Mr Kowalski is a claimant under the SRC Act and he seeks merits review of four separate reviewable decisions made by the respondent, the Military Rehabilitation and Compensation Commission (the Commission). Those reviewable decisions relate to two claims made by Mr Kowalski for compensation in respect of a duodenal ulcer and two claims made by Mr Kowalski for psychological/psychiatric illness including major depression and generalised anxiety, and consequential illnesses and disease including mental illness, hypertension, heart attack, Type 2 diabetes and obesity.
4. The four separate claims were:
(1)In S2005/112, the applicant seeks review of a decision of the respondent on 22 April 2005 which affirmed a primary determination of the MRCC of 10 December 2004. The determination disallowed a claim for compensation for “major depression and generalised anxiety, heart attack and open heart surgery” and “obesity and Type 2 diabetes” arising out of the applicant’s service in the Army. In reviewing the determination, the review officer, the Director of Military Compensation and Rehabilitation (the Director), had regard to the medical evidence provided, including a report of Dr Thompkins of 14 April 2005, a report of Dr Jagermann of 23 August 1991 and a report of Dr Cheung of 1 November 2004. The review officer also had regard to Professor Marie Esler’s opinion of 18 May 1998. The decision was affirmed by the review officer on the ground that the available evidence failed to support a causal relationship between the claimed conditions and Mr Kowalski’s military service.
The application for review was lodged with the AAT on 29 April 2005.
(2)In S2005/308 the applicant seeks review of a second decision of the respondent dated 11 November 2005, which affirmed a determination of 22 June 2005 that the applicant was not entitled to receive incapacity benefits in respect of a duodenal ulcer. The applicant had previously submitted a claim for compensation arising out of a duodenal ulcer on 3 August 1973 alleging that his duodenal ulcer had been caused by stress at work. Liability for this condition was accepted by determination on 4 April 1974. The applicant was in fact paid compensation for this condition on nine separate occasions from 4 April 1974 until 17 March 1981. However, the review officer, the Director, held that the applicant had failed to prove his claim for incapacity as at the date of the claim, as the evidence was that the applicant no longer suffered symptoms as a result of the ulcer.
(3)In S2005/309, the applicant seeks review of a further decision of the respondent of 11 November 2005 affirming a determination of 6 May 2005. The review officer, the Director, determined that the applicant was not entitled to compensation for permanent impairment as a result of a duodenal ulcer.
The applicant’s claim was denied on two grounds; first, because the evidence was that the applicant’s impairment from the ulcer was not permanent (or even if it were, there was insufficient evidence that the condition had been contributed to in a material degree by Mr Kowalski’s Army service); and secondly, the Compensation (Commonwealth Employees) Act 1971 (Cth) (the 1971 Act) did not provide for payment of lump sum compensation for a condition of a “duodenal ulcer” that became permanent at any time prior to 1 December 1988 (which was the date of the enactment of the SRC Act).
(4)Finally, in S2006/185, the applicant seeks review of a decision of a review officer, a delegate of the respondent, of 30 June 2006 which reviewed a determination of the respondent of 22 May 2006. The respondent’s determination denied the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or a psychiatric illness. The reviewable decision, made pursuant to s 62 of the Act, revoked the primary determination and instead decided that a determination on the applicant’s claim should be delayed until such time as liability was accepted to pay compensation under section 14 of the Act in respect of the claimed psychological or psychiatric condition in S2005/112.
Overview
5. Mr Kowalski was born on 7 August 1947. After leaving school on 16 January 1964 he commenced employment with Chrysler Australia Pty Ltd (Chrysler) as an apprentice fitter and turner. The company supported him while he studied for and obtained qualifications in 1969 as a mechanical technician. He completed training as a draftsman in 1970. He married his wife in 1970. When he was aged 20 he was conscripted into National Service. Because he was studying for tertiary qualifications his entry into National Service was delayed. Mr Kowalski extended his study so as to avoid having to serve in the Australian Military Forces. Eventually he could no longer avoid entering the Army and he began service as a soldier on 20 April 1972. After basic training and trade training of three months, he served in the Australian Military Forces as a regimental and mechanical draftsman in the Electrical Mechanical Engineer Workshop. He did not serve outside Australia. He served until 19 October 1973.
6. He asserts that as a result of his service in the Army he suffered stress and anxiety which gave rise to a duodenal ulcer, and that the further complaints he has made consisting of psychological or psychiatric illness, major depression and generalised anxiety, hypertension, ischemic heart disease, Type 2 diabetes and obesity are all the result of his service in the Army.
The Applicant
7. Before turning to the facts and the claims, it is necessary to say something about Mr Kowalski himself. There is no doubt that Mr Kowalski suffers from a psychiatric illness. He now suffers from chronic dysthymic disorder with a major depressive disorder. He suffers from a double depression which includes a chronic depression with occasional increase of symptoms due to major depression. We find that he has a personality disorder in that he has an obsessive compulsive personality. He has probably suffered from all of the above psychiatric problems since at least 1991. He also has suffered and does suffer from the physical conditions of which he complains, except that he no longer suffers from a duodenal ulcer and has not since 1999.
8. Mr Kowalski has had a long and protracted litigation history in the State system seeking worker’s compensation benefits from his former employer, Mitsubishi Motors Australia Limited (Mitsubishi). His claims have proved to be unsuccessful. Eventually an order was made declaring Mr Kowalski to be a vexatious litigant for having persistently instituted vexatious proceedings: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [278]. In making that order, Bleby J said at [278]:
The defendant [Mr Kowalski] has demonstrated his unwillingness or inability to accept decisions on his claims for compensation which have been conclusively and repeatedly determined against him.
9. Mr Kowalski was a most difficult party. From the outset it was clear he distrusted the curial process. He made that clear by making insulting remarks of judges in the State system. He was antagonistic, argumentative and often quite unreasonable. He constantly interrupted the Tribunal and counsel for the respondent. He would not accept or take direction, nor would he take any advice. He insulted counsel and the solicitors for the respondent. He made a number of groundless claims of unprofessional conduct on their part. He insulted the two medical witnesses, Dr Reid and Professor Goldney, who were called by the respondent. He was rude to them and about them. He reported both doctors to the Medical Board. He telephoned Professor Goldney’s wife and wished her a miserable Christmas. He made it clear that unless he had his own way or obtained the result to which he claimed to be entitled then it was because the Tribunal must be biased or simply wrong. He conducted himself in much the same way as Bleby J has recorded in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [35]. He repeated his submissions time and time again. He has repeatedly written to the Tribunal reminding the Tribunal of the High Court decision in Bushell v Repatriation Commission (1992) 175 CLR 408.
10. None of that means his claims should be dismissed or even discounted. His psychiatric condition and his personality traits should not disadvantage him in a consideration of a review of the impugned decisions. However, his blinkered view of his own case and lack of objectivity affects the reliability of his evidence and means that his evidence insofar as it is relevant must be treated with extreme caution. We are only prepared to accept Mr Kowalski’s evidence where it is corroborated by the evidence of another witness who we have found to be reliable and credible or corroborated by documents which are themselves reliable or where his evidence appears to be self-evidently reliable. Where his evidence conflicts with other witnesses who we have found to be reliable and credible, we reject his evidence.
The Witnesses
11. We should also say something about the medical witnesses who were called by the parties. Mr Kowalski called his treating psychiatrist, Dr Thompkins. Dr Thompkins’ describes himself on his letterhead as a psychiatrist specialising in general psychiatry, Medico-Legal and WorkCover claims, barrister and solicitor (retired) and fellow of the Australian College of Legal Medicine. He has been Mr Kowalski’s treating psychiatrist since July 2003 seeing Mr Kowalski nearly every month and in total on 40 or 50 occasions. His evidence fully supported Mr Kowalski’s case. Dr Thompkins did not confine his evidence to his own specialty but offered opinions outside that specialty. In particular, he offered opinions which were contrary to the evidence of a gastroenterologist, Dr Reid who was called by the respondent. We regret to say that we think Dr Thompkins’ evidence lacked objectivity. We do not think his evidence was given with appropriate detachment. We think that his evidence was given in an endeavour to support Mr Kowalski’s claims. That may be because Dr Thompkins thinks that it is in Mr Kowalski’s best interests he be acknowledged as entitled to compensation but, if that be his motivation for the evidence which he gave, it means that his evidence must be described as unreliable. Some aspects of his evidence however are uncontroversial. Indeed, he and Professor Goldney have reached the same diagnosis of Mr Kowalski’s present psychiatric condition. But they differ in two other respects. Professor Goldney is of the opinion that Mr Kowalski’s present psychiatric condition is unrelated to his Army service. Dr Thompkins offered the opinion that the stress and anxiety which Mr Kowalski suffered whilst serving in the Army contributed to his present psychiatric condition and his physical complaints. They also differ as to his personality disorder. Professor Goldney was of the opinion that Mr Kowalski has an obsessive compulsive personality disorder. Dr Thompkins was of the opinion that Mr Kowalski does not have an obsessive compulsive personality disorder but suffers from narcissistic traits which affect his behaviour. He described Mr Kowalski’s behaviour “along the terms of narcissism, of narcissistic traits, of a sense of an untrained man who comes – litigates a lot, having an unrequited – a requitable sense of entitlement.” He said that he did not think he had observed any obsessive compulsive traits. We have no doubt that Professor Goldney’s diagnosis of Mr Kowalski’s personality disorder is the appropriate diagnosis. Whilst we are not trained as psychiatrists, and one of us is not trained in medicine, there is no doubt in our opinion that Professor Goldney’s diagnosis of Mr Kowalski’s personality disorder is correct and Dr Thompkins’ diagnosis should be rejected.
12. Mr Kowalski’s conduct, both in and out of the Tribunal, and in correspondence with the Tribunal, was consistent with Professor Goldney’s diagnosis and inconsistent with Dr Thompkins’ diagnosis. An indication of the obsessive compulsive nature of Mr Kowalski’s personality is his repeated letters to the Tribunal drawing the Tribunal’s attention to the dicta of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408. He was told that there was no point in continuing to refer to the same case in correspondence to the Tribunal. He said that he could not help himself and he could not sleep until he had written to the Tribunal reminding the Tribunal of that decision. A reading of the transcript also confirms Professor Goldney’s diagnosis.
13. In the end, nothing much turns on why Mr Kowalski behaves like he does. However, Dr Thompkins’ failure to diagnose Mr Kowalski’s personality disorder impacts upon the assessment of the reliability of his evidence.
14. Dr Thompkins has seen Mr Kowalski on many more occasions than Professor Goldney who has seen him only on two occasions. Ordinarily, that might be considered to be an advantage in obtaining a history from the patient and arriving at a diagnosis and prognosis. We think that it has been an advantage in the medical sense in that Mr Kowalski has a good relationship with Dr Thompkins. It has, however, not advantaged Dr Thompkins in the giving of evidence because we think probably the closeness of their relationship has prevented Dr Thompkins displaying the objectivity and detachment that is expected of an expert witness.
15. An important issue in the proceeding was whether Mr Kowalski suffered a psychiatric illness such as anxiety whilst in the Army. In his evidence-in-chief, Dr Thompkins said there was documentary evidence to support Mr Kowalski’s claim that he suffered anxiety whilst in the Army. In his cross-examination, he was obliged, albeit reluctantly, to admit that was not so. Dr Thompkins did not think it to be relevant that Mr Kowalski did not mention anything about the Army service in the first two years that Mr Kowalski consulted him. He did not see it to be relevant that Mr Kowalski did not blame his mental and physical conditions on Army service until the time when his claims against Mitsubishi had been concluded against Mr Kowalski’s interests.
16. Professor Goldney, on the other hand, gave his evidence in a straightforward and direct manner, in particular in cross-examination, answering all of Mr Kowalski’s questions, some of which were asked repeatedly. Professor Goldney showed no sign of irritation notwithstanding Mr Kowalski’s attitude toward and of him. He retained his objectivity and detachment throughout.
17. Wherever there is a conflict of evidence between that of Dr Thompkins and Professor Goldney, we prefer the evidence of Professor Goldney.
18. Dr Donald Reid, a consultant physician and specialist gastroenterologist was also called by the respondent. He also gave his evidence in a straightforward and direct manner. He also answered Mr Kowalski’s questions directly and appropriately. He also retained his objectivity and detachment, notwithstanding that he was repeatedly asked the same questions and that Mr Kowalski was often rude to him and about him.
19. As we have already said, Dr Thompkins strayed outside his specialty and into Dr Reid’s specialty in relation to the cause and effect of duodenal ulcers and the treatment of them. Dr Reid is better able to express an expert opinion on those matters because they are directly within his own specialty and not the specialty of a psychiatrist. We think, for those reasons, we should prefer Dr Reid’s evidence wherever it conflicts with Dr Thompkins’ evidence but there is another critical reason why his evidence should be preferred. Dr Reid gave evidence in accordance with the opinion of mainstream medical science. Dr Thompkins gave evidence which suited Mr Kowalski’s case but which was often inconsistent with mainstream medical science. For that reason, we also prefer Dr Reid’s evidence wherever his evidence is in conflict with that of Dr Thompkins.
20. We think both Professor Goldney and Dr Reid were excellent witnesses who understood their obligation to assist the Tribunal to reach the truth of the matter into which the Tribunal was inquiring. We accept the evidence of both of those witnesses.
The role of the Tribunal
21. We should set out for Mr Kowalski’s benefit, at least, our understanding of the Tribunal’s role in the inquiry which is undertaken. This Tribunal does not undertake an inquiry as to whether or not the decision-maker whose decision is under review made the correct decision on the material before the decision-maker. The role of this Tribunal is to determine whether the decision which was arrived at was the correct or preferable decision on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The Tribunal carries out its inquiry with as little formality and technicality as possible and without being bound by the rules of evidence. The Tribunal may inform itself on any matter in such manner as it thinks appropriate: s 33 of the Administrative Appeals Tribunal Act 1973 (Cth) (the AAT Act). Of course, if information comes to the attention of the Tribunal it must acquaint the parties with that information so that the parties can know what information is being considered by the Tribunal in determining whether or not the decision which is under review was the correct or preferable decision. In carrying out that function, the Tribunal is obliged to act judicially and to accord parties to the review procedural fairness.
22. The proceedings are not adversarial but inquisitorial and are conducted, as we have said, for the purpose of the Tribunal reaching the correct or preferable decision in the circumstances of the case: Re Beigman and Secretary, Department of Social Security (1992) 29 ALD 332. The Tribunal’s decision should be arrived at on the material before it. In Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, Gleeson CJ said at [16]:
Under the statutory scheme, and in consequence of the other orders made by the Full Court, the Tribunal is now obliged to undertake a further review of the delegate’s decision. The Tribunal’s decision upon that review is to be made on the basis of the facts as they appear in the course of that review. ... The findings made by [the original Tribunal] will have no legal status in that further review.
23. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mr Bushell made a claim under the Repatriation Act for a disability pension for incapacity which was refused by the Repatriation Board and by the Veterans’ Review Board. He applied to the Tribunal for a review of that decision. Brennan J said at 424-425:
Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [26].
24. When conducting a review under the AAT Act the Tribunal takes the place of the decision-maker whose decision is under review. The Tribunal therefore has the same obligations as the decision-maker had at the time that he or she made his or her decision. One of the obligations the Tribunal inherits by reason of the review is the obligation to ensure that it has sufficient information to be able to make the correct or preferable decision. If the parties are not able or fail to provide sufficient information, as the substituted decision-maker, the Tribunal has the obligation to obtain that information.
25. However, that obligation is not addressed in the abstract. The Tribunal must be made aware that there is information which is relevant and will bear upon the ultimate decision before the Tribunal is obliged to obtain that information. The Tribunal might be informed by reason of information which it receives from the parties or it may separately know that such information is available. But, in the end result, there must be an awareness of the availability of some relevant information and a need for the obtaining of that information before the Tribunal is obliged to act in that regard. That is consistent with the Tribunal being substituted as the decision-maker and having inquisitorial powers to obtain information.
26. As Bushell v Repatriation Commission (1992) 175 CLR 408 shows, there is no legal onus of proof on the applicant to demonstrate error on the “appeal”. Because the Tribunal is substituted for the decision-maker, the Tribunal must make its decision on the material available and before the Tribunal. The decision under review is not presumed to be correct. In a practical sense, however, there may be some information which is peculiarly within the knowledge of a party to the review. If it be the decision-maker, he or she is bound to assist the Tribunal in that regard: s 33(1AA) of the AAT Act. Where the information is peculiarly within the knowledge of the applicant, the applicant needs to present that information to the Tribunal. When the applicant knows where that information can be obtained, the applicant needs to advise the Tribunal.
27. During the hearing of this matter, on a number of occasions, Mr Kowalski claimed that the Tribunal had an obligation to obtain information relating to the facts under examination. He put the obligation, as we have said, in the abstract rather than in practical terms.
28. The Tribunal did, however, accede to Mr Kowalski’s request that it arrange for Dr Thompkins to give evidence because he could not afford to have Dr Thompkins give evidence before the Tribunal.
The claims against Mitsubishi
29. As we have said, Mr Kowalski was employed by Chrysler before he went into the Army and shortly after he was discharged from the Army, he commenced employment with Mitsubishi. Mitsubishi acquired Chrysler’s business in Australia. He remained with Mitsubishi until his employment was terminated either in 1994 or 1998. He and Mitsubishi cannot agree on when his employment was terminated but nothing turns on that on this review.
30. He brought a number of worker’s compensation proceedings against Mitsubishi in relation to the following injuries:
(1)an eye injury in December 1986;
(2)a right middle finger injury in May 1988;
(3)a back injury in May 1989;
(4)emotional distress on 16 August 1991;
(5)a heart attack in December 1997; and
(6)bilateral carpal tunnel syndrome in December 2003.
31. The back injury in May 1989 is much more significant than the previous injuries. That set off a series of events which gave rise to a plethora of litigation.
32. The proceedings which he has brought against Mitsubishi were identified by Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. Between September 1991 and June 2004, there were 45 appearances before a Reviewing Officer, a Judge of the Industrial Court, a Deputy President of the Workers Compensation Tribunal or the Supreme Court.
33. In 1998 the parties met for the purpose of a mediation conducted by Mr S Walsh QC and a settlement was arrived at. Mitsubishi and Mr Kowalski entered into a Heads of Agreement on 27 October 1998 in which Mr Kowalski agreed:
1.Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation in damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:
1.1Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and/or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997.
1.2Any outstanding sick leave.
1.3Any matters related to the termination of his employment with MMAL.
1.4Any superannuation payable by the MMAL Staff Superannuation Fund.
34. It was a further term of the agreement that Mr Kowalski:
4.1Not to institute any legal proceedings and/or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the action against R J Cole & Partners and, Dowd.
...
4.3To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL.
4.4To execute all documents necessary to bring into effect this agreement to make such personal attendances required at any Court, Tribunal or Commission.
35. A year later, on 23 November 1999, Mr Kowalski filed an application in the Workers Compensation Tribunal to have consent orders which were made as a consequence of the agreement reached at mediation set aside.
36. Subsequently, he brought a number of proceedings against Mitsubishi and from about February 2000 until June 2004 those further proceedings were heard in the Workers Compensation Tribunal at the first instance, and on appeal to the Full Bench of the Worker Compensation Tribunal and the District Court.
37. Ultimately, Mitsubishi brought a proceeding against Mr Kowalski for an order that he be declared a vexatious litigant and, as we have said, Mr Kowalski was declared to be a vexatious litigant by Bleby J: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154.
The Claim
38. On 27 April 2004 the applicant made a Claim for Rehabilitation and Compensation under the SRC Act to the Military Compensation and Rehabilitation Service claiming that he had suffered major depression and generalised anxiety which culminated in a heart attack and open heart surgery. He claimed that the injury occurred, or he first noticed the disease or illness, on 16 August 1991. As part of his claim, he claimed that he had suffered “stress and generalised anxiety and high blood pressure over a long period of time since at least 1982”. This was his first claim against the respondent in respect to any injury since 17 March 1981. As we have already observed, the applicant had been paid compensation under the 1971 Act between 1974 and 1981 for a duodenal ulcer for which liability was accepted by the respondent on 4 April 1974.
39. In answer to the question as to what aspects of his employment contributed to his illness, he wrote:
Defence caused – staff shortages, stress, pressure of work, unreasonable times allocated to complete tasks at work, stress of being called up for national service and stress of thinking about being sent to Vietnam, stress of being charged or going home to see my wife who was sick, stress that caused my duodenal ulcer, stress of being threatened with dismissal for being absent from work at the WorkCover Review Panel, high blood pressure.
40. During his proceedings in relation to his claim for damages and compensation against Mitsubishi between 1989 and 2004, he never claimed that his military service had contributed to his ill-health. That claim was first made six years after he entered into the Heads of Agreement with Mitsubishi. At no time prior to bringing the claim on 27 April 2004 had Mr Kowalski told any of his doctors whom he consulted since 1989 when he first suffered a back injury at Mitsubishi that he had either been in military service or that, as a result of his military service, he had suffered stress, anxiety or a duodenal ulcer. Indeed, his general practitioner, Dr Christina Cheung, wrote on 1 November 2004 to a delegate of the Commission noting that although she had been his treating doctor on a regular basis since 1998, “I have not been aware of the stresses during his military service and furthermore I was not even aware that he was in military service.” She, however, was the first to be told, probably in October 2004, and after he had made his claim for compensation.
41. Specifically, he did not tell his psychiatrist Dr Jagermann, who had treated him between 1991 and 1998, of his military service or of any sequelae as a result of that military service. Nor did he tell Dr Thompkins prior to this date of his military service.
42. All of the doctors whom he consulted were led to believe that his psychiatric state and his physical complications were as a result of his employment with Mitsubishi. It was not until he exhausted every avenue in relation to any claim that he could make against Mitsubishi that he asserted that he was entitled to compensation as a result of his military service.
43. He was cross-examined about his failure to mention his Army service to any of the medical practitioners who treated or examined him after he left the Army.
44. When he brought his claim against Mitsubishi he said that on 16 August 1991 he suffered a psychiatric injury when he was the subject of a false accusation by his employer. He said that at the time his mind was drawn to dwell upon the memory of “a friend who committed suicide two years ago”. He was sent to a psychiatrist, Dr Jagermann who he saw six days after the event. He recounted the incident which we have mentioned.
45. After he commenced this claim he said that during the 16 August 1991 incident he had “a flashback to the time that I had been charged for simply going home to see my wife who had been sent home from work because she was sick”. He was then referring to an incident during his service which we will later address.
46. He was cross-examined as to why he had not told Dr Jagermann about this flashback. He gave frank but nevertheless concerning evidence:
And did you give to Dr Jaggermann (sic) an account of this flashback?---Well, with Dr Jaggermann (sic) I was trying to claim against Mitsubishi, right, so I suppose selectively, either consciously or unconsciously, I was telling him things that would support my claim against Mitsubishi.
Yes. Well, I would suggest you did it consciously, Mr Kowalski, that you left out this issue because it was only a few days prior, on 16 August, that you had the flashback and you took it upon yourself when you were examined by him a few days later not to tell him?---Yes.
So you are a person who is prepared to, through omission, mislead people about what might be the cause of your conditions?---Well, I was claiming against Mitsubishi.
It is irrelevant.
HIS HONOUR: Just let him answer the question.
MR WALLACE: Sorry, Mr Kowalski, please finish your answer?---I said to me, if I’m claiming compensation against Mitsubishi, I’ll tell the doctor what happened to cause my problems with Mitsubishi.
47. Later he was asked about his failure to tell Dr Scanlon, a psychiatrist to whom the applicant was referred by the respondent, about his Army service which Mr Kowalski now says is the cause of all his mental and physical illnesses:
MR WALLACE: Well, you subsequently saw another psychiatrist, Dr Edwin Scanlon, did you not, in October 1999?---He examined me, yes.
And Dr Scanlon asked you, did he not, to tell him what your injuries had been?---Yes.
He didn’t limit that question to Mitsubishi, did he?---No.
And he interviewed you for nearly 2 hours; do you recall that?---Yes.
You didn’t give him any account of this stress in the Army, did you?---Well, again the claim was against Mitsubishi for stress.
He didn’t ask you just about Mitsubishi, did he?---Well, I said what I said at the time and I can’t help it if I didn’t elaborate even further. I am normally criticised for elaborating but here I’ve got a claim against Mitsubishi and in my mind all you do is portray what you want in regards to Mitsubishi. Like the Army, I don’t refer to things that happened at Mitsubishi to claim against the Army. You don’t see me including everything that happened at Mitsubishi for this claim.
Well, you have related, for example, concern about a friend suiciding that you found stressing?---Yes.
That has got nothing to do though with you (sic) claim with Mitsubishi, has it?---No, no. He was a friend who I got on very well – he was a union rep, he actually committed suicide, right, and I was quite upset about that. He had a claim for compensation and they were giving him a hard time, so yes, I mentioned that. You must remember when you are in such a state you haven’t got a clear mind, completely clear mind, but anyway.
Was it the case you were trying to mislead or draw Dr Scanlon away from the prospect that you had had other claims that you say involved a psychiatric disorder?---No.
Well, why not tell him?---I’ve got a claim against Mitsubishi.
Would you agree that that is a form of dishonesty, Mr Kowalski?---No, not in my mind.
Isn’t it misleading the doctor through omission?---Not in my mind.
48. He was again asked about the information he gave to Dr Jagermann:
Now, since 1991 and prior to Dr Jaggermann’s (sic) death, how often were you seeing him?---Once a month.
And in that period did you ever disclose to him that you thought you had an anxiety state caused by your Army service?---Can’t recall.
It’s not recorded in here, is it?---No, no. I don’t know where his notes are.
None of us do but you have had copies of his reports with you?---Yes, but his notes – you see, he took a lot of notes and I tried to locate the notes. Apparently after his death some law firm or something took his estate and I don’t know where the notes are. I tried to get a copy of all my notes; I thought they were mine but they said, no, they belong to Dr Jaggerman (sic).
It was Dr Jaggerman’s (sic) practise though, was it not, to copy you into every report that he wrote about you?---Yes, yes.
And you are familiar with those reports because you had copies as opposed to the notes?---Well, at one stage I would have had copies fro (sic) him, yes.
And do you recall whether in any of those reports there is any reference at all to you having previously suffered an Army caused anxiety?---Well, if I have got a claim for stress against Mitsubishi, I wouldn’t have mentioned Army relates problems.
49. Mr Kowalski thought it was appropriate to give a selective history to his medical practitioners and to medical examiners to suit the particular litigation he was then pursuing.
50. The fact is when he was in litigation with Mitsubishi he blamed all of his mental and physical conditions upon Mitsubishi and, in particular, the two incidents on 9 May 1989 and 16 August 1991. When those claims failed he blamed all of those conditions on his Army service because, as he said, he was told by a friend if Mitsubishi did not cause those conditions it must have been Army service.
51. The following issues are said by the respondent to arise on the four different claims:
S2005/112
Whether the Applicant suffers from an injury and/or disease as defined by the Safety Rehabilitation and Compensation Act 1988 (‘the SRC Act’), or by the operation of the transitional provisions of the SRC Act, its predecessor, the Compensation (Commonwealth Government Employees) Act 1971 (‘the 1971 Act’), as claimed by claim form dated 27 April 2004.
Whether the Applicant is entitled to compensation for “major depression and generalised anxiety, heart attack and open-heart surgery, and Type 2 diabetes” as claimed (‘the claim’) pursuant to the SRC Act.
Whether the claim cannot succeed given that notice of it was provided outside of the prescribed time limits, pursuant to section 53 of the 1971 Act or pursuant to section 53 of the SRC Act.
S2005/308
Whether the Applicant continues to suffer from the condition of ‘duodenal ulcer’ (‘the condition’) as a result of his military service.
If the Tribunal finds that the Applicant does continue to suffer from the condition as a result of his military service:
(a)Whether the condition has resulted in the Applicant being incapacitated for work, in accordance with the provisions of Part II Division 3 of the SRC Act as claimed by the Applicant on 11 May 2005.
(b)Whether, as claimed by the Applicant on 11 May 2005, the Applicant is entitled to compensation for incapacity under the SRC Act as a result of the condition
(c) Whether, as claimed by the Applicant on 11 May 2005, the Respondent is liable to pay compensation to the Application under Part II Division 3 of the SRC Act in respect of the condition.
S2005/309
Whether the accepted condition of ‘duodenal ulcer’ (‘the condition’) has resulted in a permanent impairment as defined in the SRC Act.
Whether the condition has resulted in a permanent impairment which entitles the Applicant to receive compensation under sections 24 and 27 of the SRC Act.
If the condition has resulted in permanent impairment, when the impairment became permanent.
If the condition has resulted in a permanent impairment that became permanent prior to the commencement of the SRC Act, whether there is no entitlement to compensation for permanent impairment having regard to:
(a) Section 124 of the SRC Act;
(b)The provisions of the 1971 Act, given that the 1971 Act did not allow for lump sum payments for permanent impairment of the digestive system.
If the Applicant suffered a permanent impairment due to the condition that became permanent after the commencement of the SRC Act, whether the whole body impairment is at least 10%.
If the Applicant suffered a permanent impairment due to the condition that became permanent after the commencement of the SRC Act, the level of that impairment.
S2006/185
Whether the Respondent properly exercised its power pursuant to section 62 of the SRC Act to issue the reviewable decision revoking the determination dated 22 May 2006 and instead deciding to defer making a decision in relation to the claim for compensation under sections 16, 24, 27 and Part II Division 3 of the SRC Act for ‘psychological and or a psychiatric illness’ until such a time as liability for the psychological or psychiatric illness is determined under section 14 in Administrative Appeals Tribunal Application s 2005/112.
Whether the Respondent should have made a reviewable decision determining the claim in the absence of acceptance of liability under section 14 of the SRC for ‘psychological and or a psychiatric illness’ (Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753).
History
52. These claims relate to events which occurred many years ago and for which there is incomplete evidence. Nevertheless, it remains necessary to make a determination as to whether any of the applicant’s medical conditions were caused or contributed by his service in the Army.
53. In 1967, the year that Mr Kowalski turned 20, Australian forces were serving in Vietnam. When he turned 20 he became eligible to be and was conscripted into the Australian Army. A conscript was entitled to defer military service if he was undertaking a course of tertiary education. It was Mr Kowalski’s evidence that he deferred his military service between 1967 and April 1972 by undergoing further courses of education. He did not wish to go to Vietnam. He was worried about being killed or having to kill someone else. He was worried for his wife who, as we have said, he married on 19 April 1970.
54. On 28 July 1971 the then Prime Minister Mr McMahon told the State Council of the Liberal Party that Australian troops were likely to be withdrawn within six months. On 18 August 1971 Mr McMahon announced in Parliament that the Government had decided to withdraw all remaining combat forces from Vietnam. He did not at that stage give a detailed timetable for the withdrawal but announced that most of the forces would be home in Australia by Christmas 1971. By May 1972 Australia had withdrawn all but its advisory forces from Vietnam.
55. We accept Mr Kowalski’s evidence that he underwent further studies so as to avoid Army service. We also accept his evidence that he was concerned about being sent to Vietnam and of being killed, and of having to kill. We also accept his evidence that he was concerned for his wife if he were required to serve overseas. We accept his evidence that all of those matters acted as stressors.
56. However, Mr Kowalski is not entitled to be compensated for any stress or the result of any stress which was occasioned him before he entered the Army. His entitlement to compensation can only arise after he commenced “employment” in the Army. Section 27 of the 1971 Act imposed a liability on an employer (as defined in s 7) to pay compensation for personal injury “arising out of or in the course of the employment of the employee by the Commonwealth”. Section 29 imposes a further liability in respect of a disease or aggravation thereof contracted where the employment was a contributing cause. Mr Kowalski was not in any relevant employment prior to his induction into the Army.
57. Mr Kowalski entered the Australian Army on 20 April 1972 having undergone a pre-enlistment medical examination on 6 March 1972.
58. He was asked in cross-examination whether he knew that conscripts were entitled to elect as to whether or not they went to Vietnam. He said he was unaware of that. He also said that he had no idea that by April 1972 the Prime Minister had announced a complete withdrawal in August of 1971. It is inconceivable that Mr Kowalski, who had delayed his service for five years so as to avoid being sent to Vietnam, could not have known that the Prime Minister Mr McMahon had announced on 18 August 1971 that all Australian troops were to be withdrawn and would be home by Christmas.
59. It is right, as Mr Kowalski argued in his evidence, that conscription continued after the announced withdrawal of Australian troops from Vietnam but that does not establish, as Mr Kowalski would have us believe, that Australia was still sending its conscripts to Vietnam to fight.
60. We find positively that at the time Mr Kowalski entered service he knew that he would not be sent overseas to fight in Vietnam.
61. He underwent three months basic training at Puckapunyal. He was transferred to Bonegilla. On 1 August 1972 he was stationed at Amberley Air Force base where he remained until he was discharged. Whilst at Amberley, he was employed as a mechanical draftsman. He said he had to do the work of three men. He said he had to work especially hard after national service ended with the election of Mr Whitlam’s government in December 1972 and the existing national servicemen left the Army. He said he was working under stress. Notwithstanding that he was forced to work hard, he elected to remain in the Army, he said, because he was persuaded that to do so would qualify him for a war service loan. Notwithstanding that apparent inconsistency, we accept Mr Kowalski’s evidence on this topic because there is independent evidence to support his claim. His Commanding Officer, Major Fenton, recorded in a report of accident to which we will have further regard:
In my opinion the injury did arise out of the course of the employee’s employment because the member has been placed under great stress and over employed since December 1972 when with the cessation of national service he was performing mechanical drafting duties where previously three personnel were employed. The work programme has been intense since Dec 72.
62. We find that Mr Kowalski worked hard and was under pressure to work hard during his military service.
63. Mr Kowalski gave evidence of a particular incident during his service in 1973 which he said caused him significant stress. He was notified by his wife who was living near the base that she was unwell. He told his Sergeant and Corporal that he was leaving the base to see his wife. He said that a junior officer saw him leaving the base and when he returned he was marched to Major Fenton’s office by two soldiers who had machine guns. He explained what had happened and was told “You’re okay”. He was not charged and no disciplinary action was taken against him. There are no records of this incident perhaps, not surprisingly, because he was not subjected to any form of discipline. There is no contemporary evidence to support Mr Kowalski’s account.
64. The incident was never mentioned by Mr Kowalski to any of his medical examiners until after he made his first claim for compensation to the Commission after July 2004. There is no record that Mr Kowalski ever mentioned the incident to any medical examiner before he suffered his back injury in May 1989. Indeed, there is no evidence that he mentioned this incident to the doctors in the Army who later diagnosed and treated him for his duodenal ulcer. Specifically, there is no record that he mentioned the incident to Dr Gilmore when he examined him. There is no record that he mentioned the accident to Flight Lieutenant Dr Wilson, who treated him in 1973.
65. We are prepared to accept that an incident of the kind occurred. Whether he was marched to the officer under armed guard is problematic having regard to the fact that he was only observed to leave the base, wrongly it was thought, without permission. We are not prepared to find that the incident gave rise to the degree of stress that Mr Kowalski now asserts.
66. Whilst in Army service, Mr Kowalski contracted a duodenal ulcer. The symptoms apparently commenced in May 1973.
67. There are medical records relating to his service in the Army still in existence. They relevantly show:
14 June 73Pain in lower chest last night (between meals) again after lunch
Occurred after meals
Relieved by Quick Eze
Light Drinker No Aspirin
Pushed with job
O/E (On examination) – NAD (No Abnormality Detected)
15 June 73 Pain is even worse
Breakfast at 8.00am ..Pain at 10.00am
[this line indecipherable]
For 1 RIB [Rest in bed] for 5/7 [5 days] at home
2 Antrenyl 5mgs. 4 times a day
3 Mylanta between meals
21 June 73 Recurrent pilonidal sinus
Specialist
[This is a separate and unrelated physical complaint]17 July 73 Epigastric pain after food (1 ½ hours)
4-5/52 (weeks). Relieved by antacid
O/E (On examination) NAD (no abnormality detected)
Treatment Kol gel and Merbentyl
30 July 73 No family history of duodenal ulcer
Symptomatic relief from antacid
Barium meal and review See 2 weeks1 August 73 Diagnosis duodenal ulcer
Duo gastric
Kol Gel See 2 weeks10 August 73 Symptoms settling with treatment
20 August 73 Night pain ++
Under stress at work
On examination no epigastric tenderness See 1 week
Treatment continuing
Dou Gast
Kol Gel increased to 20 ml. 4 times a day
Librax 3 times a day and 2 at night24 August 73 Seems better continue treatment
27 August 73 Bleeding PR again no pain
Bright red blood ... Faeces
See surgeon’s comments
O/E (On examination) no piles visible
For ...
68. There is no explanation as to the circumstances in which the medical practitioners noted the reference to work on 14 June 1973 and 20 August 1973, and the reference to stress at work in that later note. It may have been that the matters noted were in response to questions asked by the medical practitioner but there is no point in speculating.
69. On 7 August 1973 the applicant made a claim for compensation for the duodenal ulcer. He completed two forms: a “Statement of Claimant for Compensation”; and a “Report of an Injury”.
70. In the first form Mr Kowalski wrote that he had developed a duodenal ulcer “which was proven at RAAF base Amberley on 1 August 73”. He wrote:
Approx 8 to 10 weeks prior to the above date I developed pains under the rib cage, at that time I was placed on a suspected ulcer treatment by Dr (Flt L Wilson). I was then given a B/A meal & x-rays which proved my condition.
71. In the second form he wrote that the duodenal ulcer occurred by reason of “stresses at work”.
72. On 7 August 1973 Major Fenton said in a document entitled “Report of Accident by Officer in Charge” that the “reporting doctor considers that the duodenal ulcer developed from work stress”.
73. The “Report of an Injury” form included a part for a statement by the Officer-in-Charge. The Officer addressed the question whether the injury arose out of the course of the employee’s employment and wrote:
The member has been placed under great stress & over employed since December 1972 when with the cessation of National Service he was performing mechanical drafting duties where previously three personnel were employed. The work programme has been intense since Dec 72.
74. Later, he wrote:
I strongly support a claim for compensation.
75. The applicant was medically examined on 31 August 1973:
No hiatus hernia br oesophageal reflux could be detected. The stomach was hypotonic and peristalsis was normal. The pyloro duodenal region was somewhat ... but not actually deformed. The ... of the duodenal cap was oedematous and in the base of the cap there is a small ulcer crater present. The duodenal loop was normal. Gastric emptying proceeded with out delay.
76. The presence of a duodenal ulcer was confirmed on 6 September 1973 and liability accepted for it by the Army.
77. On his discharge the applicant was asked to complete a history questionnaire relating to his health. He marked all of the questions negatively except for the question, “23. Recurrent indigestion, ulcer of stomach or duodenum” which he marked affirmatively. In further explanation for that item it is recorded:
23.X Ray report (PM 112. 31/8/73.) = Duodenal Ulcer.
Member c.o. “heartburn” and epigastric pain.
Having ant-acids with relief.
78. In particular, he denied the following:
20. Frequent severe depression
21. Mental illness – nervous breakdown
...
39. Any other illness or injury
79. He underwent a medical examination and a report was prepared on 19 September 1973 which indicated that the only disability discovered was duodenal ulcer. At the time of discharge, he was assessed as having a degree of incapacity of 15%.
80. A document was created, apparently, on 25 September 1973 entitled “Notification of Medical Assessment” which was signed by an Army officer. It records the Board’s examination of the applicant on 19 September 1973. There are two versions of the document. One has no handwriting on it except a signature. The other has at the top of the document in handwriting the words “Major Depression”. The words are written outside the margin of what must have been the original document. Mr Kowalski seized upon this document as evidence that he was diagnosed as suffering from depression, indeed major depression, whilst in the Army.
81. We reject that contention. We do not accept the words “Major Depression” were written on one version of the document at the time it was created or at any time near the time it was created. We do not know who wrote the words on that version of the document but we do not accept that the words were written by a medical practitioner or that the words reflect any medical practitioner’s opinion of Mr Kowalski’s state of mental health at any time whilst he was in the Army.
82. There are three reasons for that conclusion. First, there is a version of the document which does not have those words on it. That would mean that the words were written on the second version at a later time and after the original had been copied. Indeed, as we have said, the words are written outside the margin of the original document. The words must have been written on a copy. There would not have been any need for a copy of this document at the time it was created. Secondly, if it did represent a considered opinion of a medical practitioner the words would have been written on the original document. There would be no point in making a copy upon which to write the words and at the same time leave the original unendorsed. Thirdly, the term “major depression” was not in use in Australia when this document was created. The words, Professor Goldney said, and we accept, did not enter the psychiatric literature until the mid to late 1970s. The expression was not used in 1973 in the diagnostic systems.
83. We do not need to decide who wrote those words upon the version of the document relied upon by Mr Kowalski. We find that the words do not express any opinion by anyone qualified to give an opinion of Mr Kowalski’s mental health at any time during his Army service or upon his discharge.
84. On 19 October 1973 Mr Kowalski was discharged from the Army and shortly thereafter resumed employment with Chrysler. He was then symptom-free.
85. Subsequently, Mr Kowalski made a number of claims for compensation arising out of his duodenal ulcer, including claims for medical and pharmaceutical expenses which were accepted by the Commission.
86. His first claim after discharge led to him being referred to Dr Hugh Gilmore, physician, who was asked to examine the applicant at the request of the Commonwealth Department of Health in relation to his duodenal ulcer. In a written report dated 26 February 1974, Dr Gilmore relevantly reported:
1. The employee suffered from a duodenal ulcer proven by barium meal.
2.On the balance of probabilities, the condition arose as the result of the stress which started in December 1972, when National Service came to an end as the result of change of Government, and which resulted in heavy pressure and the need to keep to deadlines being placed on the claimant.
...
3.The incident of December 1972 and thereafter are the factors contributing to the development of a duodenal ulcer.
...
3c.Relevant in as much as the work with which the claimant was familiar became a burden by virtue of the quantity required him (it has been stated that he was doing the work that three personnel formerly did).
4.The effects were of a temporary nature, and it would seem reasonable to assume that the effects ceased in about July 1973 when his problem was recognised and treated. However, the healing of the ulcer probably took some months, further treatment, although it seems at the time of discharge in October 1973, he was symptom free and healing can reasonably be assumed at this time.
5.Appropriate treatment with antacid and anti-cholinergic medication has been provided.
6.No restrictions are imposed on the employee’s capacity for employment, other than employment which would expose him unreasonably to stress.
87. On 4 April 1974 a delegate of the Commissioner for Employees Compensation advised Mr Kowalski that his claim for compensation had been considered and it had been determined that there was a liability under the SRC Act for duodenal ulcer. He was provided with the formal determination.
88. On a number of occasions in 1974 and 1975 he claimed and was paid compensation leave for his duodenal ulcer.
89. Dr Gilmore reassessed Mr Kowalski and reported on 20 October 1976. He gave the following answers to questions asked of him:
1.The employee suffered from a duodenal ulcer which was proved by barium meal.
2a.On the balance of probabilities this duodenal ulcer arose as the result of the stress which commenced in December 1972, when National Service came to an end following the change of Government, and which resulted in heavy pressures being placed on the claimant, and the need to keep deadlines in his work schedule.
297. The applicant is, in this claim, claiming that he suffered disease. He therefore must establish that the ailment was contributed to in a material degree by the employee’s employment.
298. In our opinion, for the findings we have already made, the applicant’s employment with the Defence Force did not contribute in any degree, let alone a material degree, to the diseases of which the applicant claims compensation. In those circumstances, we do not need to consider what aspects of Mr Kowalski’s employment might have been a material contribution to the contraction of the disease: Treloar v Australian Telecommunications Commission (1999) 26 FCR 316; Comcare v Canute (2005) 148 FCR 232. See also Canute v Comcare (2006) 86 ALJR 1578 which reversed the Full Court decision but did not consider the meaning of “material”.
299. At its highest, the applicant has proved that he was under stress at work. There is not, however, a scintilla of evidence to establish that that stress at work in any way contributed to any of the diseases of which he complains, let alone that the stress contributed materially.
300. For those reasons, we affirm the decision made.
S2005/308
301. This is a claim for compensation for the duodenal ulcer. The duodenal ulcer was contracted in May-August 1973 but, in any event, during the currency of the 1971 Act.
302. The undisputed evidence of Dr David Hetzel is that the duodenal ulcer has been cured and he was free of that disease as at 1 July 1999. Dr Reid is of the same opinion. There is no evidence at all that Mr Kowalski suffers from a duodenal ulcer. For that reason alone, it was appropriate to reject that claim.
303. The respondent contended that even if the Tribunal were of the opinion that the applicant continued to suffer from a duodenal ulcer any entitlement to compensation would have to be assessed by reference to the SRC Act. Although we have no doubt that the applicant does not suffer from a duodenal ulcer, we shall mention the argument briefly.
304. The respondent accepts that there is in place a determination made on 4 April 1974 that the applicant’s Army service contributed to the cause of the duodenal ulcer. The respondent does not, properly we acknowledge, seek to set that determination aside. We agree with the respondent’s contention that if, contrary to our findings, the applicant does suffer from a duodenal ulcer, his entitlements would be assessed by reference to Part II Division 3 of the SRC Act. In view of our findings, we do not need to consider that assessment.
305. For those reasons, we affirm the decision.
S2005/309
306. The applicant claims that he continues to suffer from a condition of duodenal ulcer and claims permanent impairment. For the findings already made, we reject the applicant’s cause because the undisputed evidence of Dr David Hetzel is that the duodenal ulcer was cured by 1 July 1999 and that the applicant no longer suffers from a duodenal ulcer. Dr Reid is of the same opinion.
307. Even if the applicant did suffer from a duodenal ulcer, he would not be entitled to compensation for a permanent impairment if the impairment became permanent prior to the commencement of the SRC Act: Comcare v Levett (1995) 131 ALR 645; Brennan v Comcare (1994) 122 ALR 615. Where the impairment was permanent prior to the commencement of the Act, the provisions of s 124(1A) and s 124(2) of the SRC Act apply and consideration needs to be given to the 1971 Act to determine whether the 1971 Act allowed for a lump sum payment for permanent impairment of the digestive system. Section 39 of the 1971 Act discloses that no such lump sum was payable for such a permanent impairment.
308. If, on the other hand, the duodenal ulcer became a permanent impairment after the enactment of the SRC Act, then the applicant is still not entitled to compensation under that Act because it has been determined that the degree of permanent impairment is less than 10%: s 24(7).
309. For those reasons, we affirm the decision.
S2006/185
310. In this case, a review officer reviewed a determination of the respondent made on 22 May 2006. That determination had denied the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or a psychiatric illness. The decision under review was made pursuant to s 62 of the SRC Act and revoked the determination and, instead, a decision was made that no determination should be made on the applicant’s claim until such time as liability was accepted to pay compensation under s 14 of the SRC Act in respect of the claimed psychological or psychiatric condition in S2005/112.
311. We have now determined that there is no liability resting upon the respondent to pay compensation under s 14 of the SRC Act in respect of the claimed psychological or psychiatric condition in S2005/112. In those circumstances, it would be appropriate to revoke the reviewable decision and instead affirm the decision of 22 May 2006 denying the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or a psychiatric illness.
312. There will be orders accordingly.
I certify that the 312 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B T LanderSigned: .....................................................................................
S Rogers AssociateDate/s of Hearing 17, 18, 19, October 2006; 15 December 2006; 31 January 2007; 5, 6 February 2007; 21 March 2007; 12 April 2007; 16 May 2007; 13 December 2007; 21 February 2008; 3 April 2008; 12 May 2008; 18, 19 and 20 June 2008
Date of Decision 21 January 2009
Counsel for the Applicant Mr K Kowalski
Counsel for the Respondent Mr J Wallace; Ms Evans; Mr M Dwyer
Solicitor for the Respondent Sparke Helmore
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