Lawson and Stateships
[2008] AATA 643
•23 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 643
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1541
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY LAWSON Applicant
And
STATESHIPS
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate23 July 2008
PlacePerth
Decision The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth), to pay compensation, in accordance with that Act, to the applicant in respect of the psychiatric disorder which he contracted in or about June 2006.
..........[sgd S D Hotop]...........
Deputy President
CATCHWORDS
COMPENSATION – seafarers – applicant suffered knee injury in 1991 in course of employment by respondent – applicant in receipt of ongoing compensation payments for knee injury since 1994 – respondent or insurer refused to pay for vocational rehabilitation assessment in 1995 and 2001 – respondent arranged for vocational rehabilitation assessment in May 2006 – respondent did not consult applicant regarding choice of rehabilitation consultant or rehabilitation provider – applicant suffered severe deterioration in mental state in June 2006 – applicant contracted psychiatric disorder in June 2006 – applicant’s psychiatric disorder arose out of, or was contributed to in material degree by, employment by respondent – applicant’s psychiatric disorder a compensable injury – respondent liable to pay compensation to applicant for psychiatric disorder – deemed reviewable decision set aside
Seafarers Rehabilitation and Compensation Act 1992 (Cth), s3, s24, s25 and s 26(1)
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Wiegand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
23 July 2008 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. Barry Lawson (“the applicant”), who was born in August 1945, suffered an injury to his right knee on 27 July 1991 in the course of his employment by Stateships (“the respondent”) on board MV Roberta Jull. He has been in receipt of ongoing payments of compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”) in respect of that injury, with effect from 10 June 1994.
2. On 12 July 2006 the applicant claimed compensation under the Act in respect of an injury described by him as “stress”. In the claim form he described the events that led to this injury as follows:
“The continual legal litigation in respect to my compensation claim since 1994 and the fact that my employer refused to provide me with the opportunity to take part in any rehabilitation programme over the past twelve (12) years, effectively denying me the ability to rejoin the work force but are now demanding that I take part in a futile rehabilitation assessment. This whole process has put me under a lot of stress causing me to drink alcohol heavily and has threatened my ability to cope with every day life. Over the years I have received counselling from a psychologist but this latest initiative of Stateships has caused me to seek and receive psychiatric help from Dr Wu of WEIT Perth because I became frightened of the consequences of my state of mind.” (sic)
3. Following a failure by the respondent to determine the abovementioned claim for compensation, the applicant, on 11 April 2007, lodged with the Tribunal an application for review of a deemed reviewable decision of the respondent disallowing that claim.
The Issue and the Tribunal’s Determination
4. The issue for the Tribunal’s determination is whether compensation is payable to the applicant under the Act pursuant to his claim of 12 July 2006.
5. For the reasons which follow, the Tribunal has determined that compensation is so payable to the applicant
The Evidence
6. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T102, pp 1-166) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1 – A6 tendered by the applicant;
· Exhibits R1 – R3 tendered by the respondent;
· the oral evidence of the applicant and of Dr J Knight and Sister E Cattalini.
The Recent Factual Background
7. On 31 October 2005 Dr P Martin, Westport Medical Centre, issued a “Workers’ Compensation PROGRESS Medical Certificate” in which he certified that the applicant continued to be totally unfit for work by reason of his right knee condition, and indicated, as regards return to work options, that a vocational rehabilitation assessment was required and that the “choice of provider [was] to be discussed with the worker”. (T20)
8. On 24 January 2006 Dr P Gibson, Westport Medical Centre, issued a progress medical certificate to the same effect as the abovementioned certificate issued on 31 October 2005. (T22)
9. On 27 February 2006 Mr G Forward, Orthopaedic Surgeon, reported to the respondent’s solicitors that the applicant, by reason of his right knee condition,
“has a limited ability for heavy physical work but would be able to carry out a wide range of clerical duties and would be fit for light duties such as storeman or sedentary attendant.” (T24)
10. On 20 April 2006 Dr P Martin issued a progress medical certificate to the same effect as the abovementioned certificates. (T25)
11. By facsimile dated 20 April 2006 the respondent’s solicitors requested the applicant to advise of his “availability to attend a vocational assessment with an injury management consultant”. (T26)
12. By facsimile dated 24 April 2006 the applicant responded to the abovementioned request as follows:
“…
In the past 15 years since my injury there have been some twenty Medical Certificates with request for a Vocational Assessment; all but two were ignored, the two not ignored were rejected outright with a refusal by Stateships to pay for the assessment.
Therefore I find it intriguing that Stateships now want a Vocational Assessment when, taking into account the reaction my situation received during previous applications for employment, there is no chance of my being employed.
However should Stateships agree to pay all costs, and any task I am required to undertake I do so as an employee of Stateships and under the protection of the Seafarers Rehabilitation and Compensation Act, then I have no difficulty in participating and look forward to attending a Vocational Assessment.
I trust that this will be organised as soon as possible.” (T27)
13. On 28 April 2006 the respondent’s solicitors notified the applicant that an appointment had been arranged for him to see Elaine Duncan at Mount Injury Management on 9 May 2006 for a vocational assessment. (T28)
14. By facsimile dated 2 May 2006 the applicant wrote to the respondent’s solicitors as follows:
“…
Previously when Dr Martin requested the provision of a rehabilitation program we agreed that it would be provided by the Commonwealth Rehabilitation Service in Fremantle.
It is still my preference for the rehabilitation program to be done by CRS Fremantle, as I believe they have a greater knowledge of employment opportunities in the Fremantle area.
There has been no consultation about my rehabilitation program being provided by Mount Injury Management.
…” (T29)
15. By facsimile dated 3 May 2006 (T31) the respondent’s solicitors informed the applicant that they did not propose to change the arrangements referred to in paragraph 13 above, and on 5 May 2006 the applicant sent a facsimile to the respondent’s solicitors as follows:
“I wish to inform you that I will be attending Mount Injury Management on Tuesday 9th May.
I have asked Stateships to assist in this by providing a taxi for the journey there and back to my house.
Please note, it is still my preference to have any rehabilitation programme done at CRS Australia Fremantle.” (T33)
16. Ms Elaine Duncan, Injury Management Consultant, Mount Injury Management Service, provided an Initial Rehabilitation Assessment Report, dated 6 June 2006, regarding her interview of the applicant on 9 May 2006 to the respondent’s solicitors in which she stated (inter alia) as follows:
“…
In discussion with Dr Phillip Martin, General Practitioner, we were advised that he supported a vocational rehabilitation assessment for Mr Lawson in order to explore suitable alternative work options. He indicated however, that he had some concerns regarding Mr Lawson’s current levels of medication which may impact on his ability to undertake certain types of work. He had concerns that Mr Lawson had now been out of the workforce for 15 years and would need to make a significant physical and mental adjustment if undertaking a return to the workforce.
…
CURRENT STATUS:
Mr Lawson has not undertaken paid employment since December 1996, following his work as a kitchen hand at the Fremantle Yacht Club. He advised that he had tried to find employment but had been unsuccessful, once employers knew of his workers’ compensation injury.
He reported that he had wanted to undertake a number of training courses to assist him in gaining suitable alternative employment, however funding requests had been refused by his employer/insurer. He believed that if he had been given the opportunity to undertake a ‘Train the Trainer’ course, he could have moved into a catering management role. He had also been interested in training individuals to operate forklifts/cranes and stated that he would have had an opportunity to move into this type of job 15 years ago but he had been refused vocational rehabilitation assistance at the time.
He felt quite bitter that vocational rehabilitation assistance had been requested repeatedly via Dr Martin over the past 15 years but had always been refused. Now he was nearly 61 years old, with only 4 years left until retirement. He felt that his knees had deteriorated to such an extent that the range of job opportunities available to him had greatly reduced.
Furthermore, Mr Lawson advised that he had also sustained bilateral rotator cuff problems which had developed as a result of using crutches at the time of having his knee replacements. He advised that currently his left shoulder was more symptomatic. He also reported bilateral hearing loss and bilateral low level tinnitus. We note the most recent medical certificate supplied by Dr Martin which states that Mr Lawson is currently totally unfit until 27 July 2006. Dr Martin recommended he continue with his exercise programme and requested a vocational rehabilitation assessment. In our discussion with Dr Martin, he supported our involvement in identifying Mr Lawson’s transferable work skills and he was well versed on the fact that Mr Lawson should have a vocational rehabilitation assessment under the Workers’ Compensation Act.
We discussed with Mr Lawson, Mr Forward’s opinion of 27 February 2006, that he would be able to carry out clerical or light storeman duties. Mr Lawson agreed that he may be able to undertake some form of work, but from past experience, he did not believe that any employer would employ him.
We acknowledge that there may be barriers relating to Mr Lawson’s successful return to work, including:
-his age (nearly 61 years old)
-his extensive level of medication which may impact upon his work capacity
-his work history which mostly relates to one occupation (cooking/catering)
-his lack of formal qualifications
-the period of time he has been out of the workforce (15 years)
-his significant pain levels
-his other medical conditions namely, bilateral rotator cuff problems
-his level of stress/anxiety which he believes has been brought about by the ongoing adversarial nature of his workers’ compensation claim.
SUMMARY AND RECOMMENDATIONS:
Mr Lawson is a 60 year old Seaman/Cook who has been unable to return to any employment in the cooking/catering industry since 1996. He has sought alternative employment positions to no avail. His physical capacity has been significantly reduced as a result of his injury. Although he agrees he could undertake some form of work, he believes the odds are stacked against him as a result of his age and his lack of adequate training in other work areas. His medical practitioners are agreeable to an investigation into suitable work alternatives. As a result of the initial rehabilitation assessment, the following recommendations are made:
1. Mr Lawson to be offered two vocational counselling sessions in order to examine his transferable work skills and to generate and explore potentially suitable work options.
2. Upon consolidation of suitable alternative work options, medical opinion to be obtained regarding the viability of options generated.
3. Once a vocational direction has been consolidated, and dependent upon medical approval, Mr Lawson to be offered assistance in undertaking a period of training/work experience in order to commence vocational redirection.
…” (T34)
17. By facsimile dated 5 July 2006 (T37) the respondent’s solicitors requested the applicant to advise as to his “available dates in the coming weeks, for the scheduling of two further vocational assessment meetings with Mount Injury Management”. The applicant replied by facsimile dated 6 July 2006 as follows:
“…
I am willing to attend with the understanding that it is for an assessment only and a decision is yet to be made as to the approved program provider.
…” (T39)
18. On 12 July 2006 the applicant lodged a claim for workers’ compensation in respect of “stress”, as mentioned in paragraph 2 above. (T43)
19. Ms B Kordanovski, Psychologist, Mount Injury Management Service, provided to the respondent’s solicitors a Vocational Assessment Report, dated 24 July 2006, which she prepared following two vocational assessment sessions attended by the applicant on 18 and 20 July 2006. In that report Ms Kordanovski described the applicant’s presentation at those sessions as follows:
“PRESENTATION:
Mr Lawson engaged in the vocational assessment sessions. He was an active participant in the process and completed the administered questionnaires promptly. Mr Lawson expressed that he felt highly anxious regarding participating in vocational rehabilitation following such a long period since his injury.”
The report concluded as follows:
“RETURN TO WORK EXPECTATIONS:
Mr Lawson advised that Dr Martin had requested that he undergo a vocational rehabilitation assessment and rehabilitation programme on many occasions over the past 15 years. He advised that his employer had consistently refused to allow vocational rehabilitation to be undertaken or to fund any retraining.
Mr Lawson indicated that he had been undertaking voluntary work for some time which he would be happy to continue with. Mr Lawson articulated that he could not see any benefit from undergoing vocational rehabilitation at this stage and felt anxious at having to undergo this process and possibly return to the workforce after 15 years.
As previously reported by Ms Duncan on 6 June 2006, we acknowledge that there may be barriers relating to Mr Lawson’s successful return to work, including:
-age (60 years old)
-extensive level of medication which may impact upon his work capacity
-work history which mostly relates to one occupation (cooking/catering)
-lack of formal qualifications
-the period of time he has been out of the workforce (15 years)
-significant pain levels
-other medical conditions (bilateral rotator cuff problems)
-level of stress/anxiety which he believes has been brought about by the ongoing adversarial nature of his workers’ compensation claim.
SUMMARY AND RECOMMENDATIONS:
Mr Lawson is a 60 year old Seaman/Cook who sustained a knee injury whilst at work on 27 July 1991. A Vocational Assessment has been recommended in order to explore potentially suitable alternative work options in consideration of Mr Lawson’s physical capacity and previous education and employment.
As a result of the assessment process, a number of work options have been explored and are considered potentially suitable based on Mr Lawson’s functional profile, transferable work skills and labour market trends.
Taking all of these factors into consideration, the following vocational options are recommended:
·Stock and Purchasing Clerk
·Filing Clerk
·Administration Assistant
There are numerous barriers which may impact upon successful vocational redirection for Mr Lawson, including his age, physical restrictions, lack of formal education and restricted employment experience. In addition, Mr Lawson’s high level of anxiety regarding a return to the workforce after 15 years may impact upon redirection success.
…
In conclusion, the following recommendations are submitted for consideration:
1.Consideration to be given to the above work options by all rehabilitation-related parties.
2.Additional definition of medical restrictions to be sought from treating and assessing medical parties.
3.Medical endorsement to be obtained regarding the potentially suitable work options, prior to consolidating vocational redirection with Mr Lawson.
4.Once a vocational direction has been consolidated, and dependent upon medical approval, Mr Lawson to be offered assistance in undertaking a period of training/work experience in order to commence vocational redirection.
…” (T47)
20. By facsimile dated 25 September 2006 the applicant wrote to the respondent as follows:
“It is now over sixty days since the report 24th July 2006 from Mount Injury Management in respect to my undertaking training/work experience in order for me to commence vocational redirection.
Could you please advise me of your position on this matter.” (T61)
21. By facsimile dated 12 October 2006 the respondent informed the applicant that its insurers had “approved the use of Mount Injury Management as a programme provider”. (T66)
22. By facsimile dated 12 October 2006 to the respondent, the applicant noted that:
· he had not been consulted in relation to the selection of an approved program provider, as required by the Act;
· Mount Injury Management Services was not included in the list of Western Australian Approved Rehabilitation Providers published by Comcare. (T67)
23. By facsimile dated 27 October 2006 (T76) the respondent’s solicitors informed the applicant as follows:
“…
As requested, we have made arrangements for the transfer of your vocational rehabilitation from Mount Injury Management to a Seafarers Approved Rehabilitation Provider, namely CRS Australia Fremantle.
…”
In a subsequent facsimile dated 30 October 2006 (T80) the respondent’s solicitors informed the applicant as follows:
“…
In respect of the selection of your rehabilitation provider, please note that Mount Injury Management is in the process of becoming an Approved Rehabilitation Provider for seafarers. Nonetheless, in an effort to accommodate your request, we have had the matter transferred to CRS Australia. We trust that you have no objection to their engagement to assist in your vocational rehabilitation.”
24. Ms E Duncan, Psychologist, CRS Australia, provided a Rehabilitation Assessment Report, dated 18 January 2007, regarding the applicant to the respondent’s solicitors as follows:
“Thank you for referring Mr Barry Lawson to CRS Australia for ongoing assistance with his vocational rehabilitation. We understand that Mr Lawson requested his case be transferred to our department as a Comcare Approved Provider.
We received copies of an Initial Rehabilitation Assessment Report (dated 6 June 2006) and a Vocational Assessment Report (dated 24 July 2006) from Mount Injury Management Service to assist in our assessment. We also received a copy of a letter from Dr J Knight, Mr Lawson’s GP, dated 27 November 2005 (sic).
We conducted an interview with Mr Lawson at our Fremantle office on 13 December 2006 to discuss his current medical and vocational situation.
Please find below a summary of our findings and recommendations:
CURRENT MEDICAL SITUATION:
Mr Lawson reported that his medical situation with regard to his right knee was largely unchanged since the information reported in correspondence from Mount Injury Management Service, referred to above. He continues to experience restrictions and limitations as indicated previously. His Orthopaedic Surgeon, Mr Graham Ford (sic) (report dated 27 February 2006) has advised that Mr Lawson should be able to undertake light clerical or similar sedentary duties.
However, as advised by his GP, Dr Knight, in her letter of 27 November 2006, Mr Lawson has been suffering with anxiety and depression, has undergone a psychiatric review and had been placed on Lexapro medication to assist with the management of his symptoms. Dr Knight reported in her correspondence that although Mr Lawson’s mental state was slowly improving, he remained totally unfit for any work by reason of his fragile emotional state.
Further to this, Dr Knight provided documentation to this office dated 17 January 2007 stating that Mr Lawson remained totally unfit for any work.
Mr Lawson continues to take a considerable amount of medication which we believe may also impact upon his work capacity.
VOCATIONAL SITUATION:
We have viewed the Vocational Assessment Report prepared by Mount Injury Management Service, dated 24 July 2007 (sic) recommending several potentially suitable occupations for Mr Lawson, including:
·Stock and Purchasing Clerk
·Filing Clerk
·Administrative Assistant
Whilst I believe the above work options to be physically and vocationally suitable for Mr Lawson, we are unable to proceed with a graduated return to work program until Mr Lawson is certified as fit for work by his general practitioner.
Although not now restricted from carrying out clerical type duties as a result of his right knee injury (as advised by his Orthopaedic Surgeon), Mr Lawson’s current medical status of totally unfit for any work results from his current emotional/psychological state as described by Dr Knight, GP. Accordingly, we are unable to advance Mr Lawson’s vocational rehabilitation program any further at this stage.
RECOMMENDATION:
As a result of Mr Lawson’s current medical status as described above, we are unable to commence a graduated return to work program, as requested, at this stage. As you would be aware, we can only proceed following receipt of medical approval for our program.
As a result of the prevailing situation, should you be agreeable, CRS can maintain low-key contact with Mr Lawson and Dr Knight over the next one to two months to ascertain whether his condition may improve to the degree that he can begin to participate in a vocational rehabilitation program.
…” (original emphasis) (T83)
25. The applicant has not subsequently participated in a vocational rehabilitation program.
The Legislation
26. The relevant provisions of the Act are as follows:
“ 3General Definitions
In this Act, unless the contrary intention appears:
…
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
‘disease’ means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment;
…
‘impairment’ means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of the whole or part of any bodily system or function;
…
‘injury’ means:
(a) a disease; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…
24 Liability to pay compensation
The liability of an employer to pay compensation to a person under this Act is the liability of the employer to pay the amount or amounts that the employer determines, in accordance with this Act, to be payable to the person.
25 Compensation to be paid in full
Subject to subsection 29(4) and sections 30 to 37 (inclusive), 47, 55, 58 and 139, compensation in respect of an injury must be paid in full by an employer whose employment has made a material contribution to the injury.
26 Compensation for Injuries
(1)If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
…”
The Applicant’s Evidence
27. The applicant’s evidence-in-chief may be summarised as follows:
· since the date of his compensable knee injury in July 1991, approximately 20 requests for him to undergo vocational rehabilitation assessment had been made to the respondent;
· up until April 2006, two of those requests were refused by the respondent (in November 1995 and April 2001) in that the respondent or its insurer refused to pay for the assessment, and all of the other requests were “ignored”;
· he found this situation “stressful” and he sought help from a psychologist, Sister Emilie Cattalini, initially in 1997;
· he subsequently “got over the stress” and he accepted his situation and got on with his life;
· he remained unemployed but he did voluntary work;
· in April 2006 the respondent notified him that he was required to undergo a vocational rehabilitation assessment;
· he notified the respondent that he would participate in the assessment and requested that it be arranged as soon as possible;
· an appointment was made for him to attend Mount Injury Management (on 9 May 2006), without first consulting him, and he did so, although he informed the respondent that he preferred that the assessment be performed by CRS Australia;
· he was informed by the respondent’s solicitors that he was obliged by the Act to co-operate but he felt that the respondent had not fulfilled its obligations under the Act to him;
· he became depressed and the level of his pain increased considerably;
· in June 2006 he suffered a “mental breakdown” and went to see his general practitioner, Dr Knight, and asked for help “as [he] knew that what [he] was feeling and thinking was far worse than anything [he] had previously experienced and [he] became frightened of the consequences of [his] thoughts of self-harm and doing harm to others”;
· Dr Knight sent him to see Dr Raymond Wu, Psychiatrist, who prescribed an anti-depressant, Lexapro, which he continues to take.
28. In cross-examination it was put to the applicant that “the litigation process” was itself a cause of stress for him. He responded:
“In the beginning it was and that’s why I went and sought help and learned to handle the stress and move on, so I believe I got over all that but it was this next lot of things which I don’t believe has got anything to do with litigation; it was just I don’t know what you’d call it; just lack of process. They’re putting you through something that had no intentions of doing anything with. That’s what it was, it was just like you’re going to do all this and end up with nothing, you know, sort of, sort of dragging me backwards I felt. I wouldn’t say it’s to do with the legal part of things because I don’t believe it was legal.”
His cross-examination continued:
“MR TSAKNIS: It seems from what you say, correct me if I’m wrong but had the process gone smoothly up until I think April 2006 when they said come back to have a rehabilitation program, or want you assessed, had things gone smoothly up until then it probably wouldn’t have caused you any difficulty at all to go to the rehabilitation assessment in April ---
THE WITNESS: Going to the rehabilitation assessment wasn’t difficult, what was difficult was that when I realised that it was just pointless. They were sending me to someone who was not approved. I don’t know how that falls into things, refused to send me to someone who was approved which was down the road at no cost to them but they were prepared to pay to send me to someone else because this lady was the best in the world and then when she left the firm I still have to go to that firm even though she wasn’t there so I thought well what’s – what’s going on and that was – that’s basically it, it’s like well let’s say it’s sort of, yes, it was just a trip to nowhere.
MR TSAKNIS: So are you saying had nothing happened, had you been happy with everything up until April 2006 you still would have suffered all this stress?
THE WITNESS: No, no.
MR TSAKNIS: From April 2006?
THE WITNESS: No.
MR TSAKNIS: That’s what I’m trying to – I’m trying to work out how much of this is ---
THE WITNESS: No, I wouldn’t – well I had stress at the beginning of this whole thing years ago but I accepted the fact that that was my lot and so I’ve got on with it, I was doing things and working voluntary work and things like that so, you know, you accept things, that’s it, you don’t go sitting there, you know, moping about it but then when this happened it was a different thing altogether.
MR TSAKNIS: But this just seems to be part of the whole process, just one element of the process that caused you stress.
THE WINESS: No, I wouldn’t say that. I wouldn’t be sitting here and I would not be on Lexapro had things not gone that far.”
29. It was put to the applicant that he had been under stress and had undergone a triple bypass operation in 1996 and had since been taking medication for that condition , but that he had now been informed by the respondent that he was no longer required by the respondent to participate in a vocational rehabilitation program. The applicant acknowledged that that was the case. He was referred to a letter from Ms Elaine Duncan, Rehabilitation Consultant, CRS Australia, to the respondent’s solicitors, dated 30 November 2007 (which had been copied to him), in which it was stated:
“I have recently reviewed Mr Lawson’s current situation. He remains certified totally unfit for work and, as per the recommendation of his General Practitioner, he continues with antidepressant medication, attends counselling on a weekly basis and undertakes an exercise program. These measures have been put in place by his doctor to assist with the management of his anxiety and depression.
…
It is now 12 months since your initial referral of Mr Lawson to CRS Australia. Since this time, he has remained medically certified unfit for work. Furthermore, the Dept Planning and Infrastructure does not appear to have any suitable part-time duties that could be utilized for a graduated return to work program.
On this basis, I propose to close Mr Lawson’s vocational rehabilitation file for the present time. Please contact should you require our services in the future.
…” (Exhibit R1)
His cross-examination continued:
“MR TSAKNIS: So what I – what I – really what I’m suggesting that this material indicates that you were under stress certainly in 1996 and on some medication. The issues which you’re concerned about have ended and you’re still on Lexapro which is medication for stress but really this process, this assessment of June 2006 might have made you angry but it really wasn’t the underlying stressor.
…
MR TSAKNIS: And what I’m going to be putting to the Tribunal really is that the cause of your stress now it’s not really – the cause isn’t what happened in April 2006, it’s really unfortunately you’re someone who suffers from stress.
THE WITNESS: No, I have to say no because I was stressful when I first lost the job but I got over it and moved on and accepted the thing. I was not on any antidepressants or even seeing a psychiatrist then. I saw a psychologist and learned to meditate and all those types of things but it wasn’t until this action started that I actually fell in a hole and had to go on medication.
…
MR TSAKNIS: The stresses have all ended, haven’t they, for you?
THE WITNESS: … There’s a couple of letters where you say we don’t want you to do it now but we reserve the right to make you do it in the future. Well what does that mean?
MR TSAKNIS: But as far as you’re concerned since 30 November 2007 you’ve been told that your vocational rehabilitation file has been closed.
THE WITNESS: That doesn’t make what happened before any easier or better or anything and it’s been closed but prepared to be re-opened when they feel like it, so, you know.
MR TSAKNIS: Are you suggesting, do you believe that’s a real possibility that you will be fit for work ---
THE WITNESS: I would believe, I would honestly believe anything is a possibility with the dealings I’ve had with this thing.”
The Evidence of Dr Jennifer Knight
30. Dr Knight said that she is general practitioner and that she has been treating the applicant “on and off” since 2001.
31. Dr Knight said that, as a result of a consultation with the applicant on 26 June 2006 at which she became concerned about his risk of suicide, she referred him to Dr Wu, Psychiatrist, and Dr Wu saw him the following week. She confirmed that she had received a report dated 5 July 2006 from Dr Wu in which Dr Wu indicated that he was unable to make a definitive diagnosis of the applicant’s mental condition on the basis of one consultation but that his provisional diagnosis was that of an adjustment disorder with anxious/depressed mood. She added that Dr Wu suggested that the applicant commence taking Lexapro, an anti-depressant medication, and that she commenced him on that medication and he remains on it at the present time.
32. Dr Knight confirmed that she had prepared three reports regarding the applicant’s mental condition, dated 27 November 2006 (Exhibit A1), 5 September 2007 (Exhibit A2) and 3 December 2007 (Exhibit A3), and that the contents of each of those reports are true and correct, to the best of her knowledge and professional expertise.
33. Dr Knight’s report dated 5 September 2007, which was addressed to the respondent’s solicitors, states as follows:
“In response to your request for a report, I took over Barry’s workers’ compensation case after the practice involved in this folded in 2006. He had been a patient at this practice for non-compensable health issues since 1999.
1.I reviewed Mr Lawson last on 06/08/07. He had been progressing at a good rate with regard to his reactive depressive illness. Six weeks before he had been significantly psychomotor retarded to have been unable to exercise. Since then he had started a programme at home with the guidance of a physiotherapy friend as he had not been able to cope with going to the gym he belongs to. He told me on this day that he now felt able to return to his senior’s gym programme and could cope with travelling away from home and dealing with the people there. He felt he has some control over his life and was encouraged by the improvements that had occurred in his mental health. However on Tuesday 21/08/07 he had not returned to the gym. He was continuing his exercises at home with physiotherapy. His physical health was overtly unchanged.
2.There are no other factors impacting on Mr Lawson’s present psychological condition beside his workers’ compensation process.
3.Mr Lawson receives counselling with a clinical psychologist and is on an antidepressant medication (Lexapro). The medication was commenced shortly after he was urgently referred to a psychiatrist in June 2006.
4.Mr Lawson is aware that he can receive urgent outpatient or inpatient psychiatric care at any time if his depression and hopelessness deepens. He is also aware that more counselling of a CBT nature is accessible should he need it and that medications can be increased. He is aware of all his risk factors for an increase in his symptoms. He is currently not requiring that extra care.
5.Mr Lawson remains unfit to participate in any return to work programme and this is a permanent situation. He is most unlikely ever to return to any remunerative employment.
6.Mr Lawson has chronic physical health problems that are permanently restrictive on his capacity for any work. These include osteoarthritis in multiple joints but especially his ankles, right and left total knee replacements, bilateral rotator cuff pathology in his shoulders and coronary artery bypass grafting for ischaemic heart disease which is currently stable. He is made totally incapable of working by the nature of his depressive illness.
If he were no longer required to return to work it would reduce his immediate stressors and background risk of suicide, it would not however resolve his mental health issues. At best it would allow him to focus positively on his health rather than become damagingly preoccupied with an adversarial system. He would not suddenly become a social being or a team player. He would not ever be capable of working under supervision or under a manager, nor would he be able to work under pressure or in a group of people. He is still capable of having a fulfilling life within limited parameters and may be capable of volunteer work in the future.
7.Mr Lawson has seen a private psychiatrist once at my urging after I became fearful and aware of his suicide potential. He had been seeing clinical psychologist, Emilie Cattalini, for some 12 years of his own volition and unbeknownst to myself, to cope with his distress regarding the legal battles concerning his injury claims. She wrote to me in mid June 2006, with Barry’s knowledge after his mental health nosedived. This was at the time he was told he was going to be rehabilitated to be made work ready. He was also told by rehab this would be occurring although he would have little chance of finding work as he was so close to retirement age. He began drinking heavily and was unable to handle the company of others. He felt anger and despair and thought of suicide.
He saw Dr Raymond Wu in July 2006 once and continued counselling. Dr Wu offered him management options to call on if he needed them and assessed him at the time as not actively suicidal. He has follow-up available as needed. He opted to continue with his trusted counsellor and accepted a need for antidepressants. We commenced him on an antidepressant and monitored him closely to observe a gradual settling of his suicide potential. He remains very vulnerable.
8.…
9.This gentleman has a long history of psychological assistance to help him cope with his protracted workers’ compensation case. He has never sought to claim this or publicly acknowledge this until pushed to the brink of claiming his own life to deal with his anger and despair at a system that spent 10 years offering him no rehabilitation and then forcing him to it this year, whilst indicating his age made him unemployable (as he is now within three years of retirement age). This seems from Mr Lawson’s point of view to show a malicious disregard for his wellbeing.
I have not known Mr Lawson’s case for long enough to understand why your client has proceeded as they have. I am aware of the potential for heightened anger and despair if Barry is referred by your client for psychological appraisal by an insurance doctor. I have voiced these concerns to yourselves over the phone and to Mr Lawson at his most recent review.”
34. Dr Knight’s report dated 3 December 2007, addressed “to whom it may concern”, states as follows:
“Mr Lawson has been a patient at this practice since 1999 and a patient of mine for general medical problems since 2001.
In April 2006, whilst visiting for other issues, Barry mentioned that after 15 years of being unable to perform his usual work and under the care of Seacare workers’ compensation system, he was being put into vocational rehabilitation. He was at that stage exercising at a gym and loving it and doing voluntary work in the community. He was continuing under the care Westport Medical Centre for his compensation care. He was not distressed by this request, though peeved it had taken 15 years to come to fruition.
I next saw him in June 2006 at the request of his longstanding Psychologist, Emilie Cattalini. He was no longer attending the gym. He was no longer doing voluntary community work. He was deeply distressed, depressed, angry and unable to handle any company. He was very afraid of his own potential to self-harm and harm others. He was urgently reviewed by psychiatrist Dr Wu, and commenced on an antidepressant, for major depression with high suicide risk.
He currently still has a diagnosis of major depression, partly treated. He is no longer suicidal. He has been exercising at home with a physiotherapist friend mentoring him. He is still incapable of interacting in a normal capacity in the community.
It seems the deterioration in Mr Lawson’s mental state and development of depression lies with the handling of his compensation case and rehabilitation process since April 2006. I have copies of the last months of Mr Lawson’s visits to the Westport Medical Centre. The doctor wrote that Mr Lawson needed to have a full vocational rehabilitation and then the opinion of his treating orthopaedic surgeon before commencing rehabilitation. Mr Lawson informs me that every medical certificate since 1994 from Westport stipulated that vocational rehabilitation should occur, and that this was ignored until 2006. His doctor was supportive, but cautioned that after such a prolonged period there would be quite an adjustment that would need to be supported to get Mr Lawson confidently work ready.
Westport Medical Centre has since closed and I have taken over the medical management of Mr Lawson’s compensation case in November 2006.
I have a copy of the Seafarers Rehabilitation and Return to Work best practice guide. In this it states that “when an injured seafarer who is likely to be off work for more than 28 days is assessed as capable of undertaking a rehabilitation programme the employer must arrange for an approved rehabilitation provider to develop an appropriate rehabilitation programme.” It has taken 15 years to be approved.
After vocational rehabilitation was approved in 2006, it took months and many enquires from Mr Lawson for any bookings to occur. He was told he had to see a rehabilitation provider in West Perth (sic) because of the expertise of a Ms Duncan there. This required Mr Lawson to travel by taxi to the site as his knee prevented travel on public transport at that time. When Ms Duncan left the company and transferred to the Commonwealth Rehabilitation Service, in the same suburb in which he lived, Mr Lawson assumed there would be no issue in a transfer that would save the insurers money in transport fees and see him with their provider of choice. This was not so (If the Seafarers Rehabilitation Act is the same as Workcover, I would assume Mr Lawson himself should have had a choice of provider, but I am not aware of the differences that may exist between the schemes).
Mr Lawson was also thoughtlessly told that his chances of employment after rehabilitation were negligible because he was so close to retiring age. Needless to say delays, careless words, and backtracking has stirred distrust, anger, resentment and severe sadness in Mr Lawson. The process seems to have shown a wanton disregard for his care, and the impact of others’ decisions on his welfare. The consequences could have been catastrophic, as such they have severely affected his capacity to engage in society and contribute, as he had been doing, as a volunteer.
It is imperative that I know, as the treating doctor, why this process is occurring 15 years too late in this man’s working life as it seems only to be causing maximum distress, impairing any chances of true rehabilitation, stimulating instead a depressive illness that has reduced his contribution into society.
Remember he was a willing subject in April 2006.”
35. As regards the contents of her report of 3 December 2007, Dr Knight confirmed that her professional opinion is that the applicant is suffering from major depression. Asked what led her to express the opinion that “the deterioration in [his] mental state and development of his depression lies with the handling of his compensation case and rehabilitation process since April 2006”, she responded:
“Basically I’ve been seeing Mr Lawson on and off as I say from 2001 and we’ve been dealing with, I’d never had to deal with any mental health issues for him before so I had one really distressed man who had basically stopped functioning when I saw him in June just before the referral. I’d seen him – seen him on 26th of April 2006, at that stage he was exercising at the gym, he was losing weight, he was using it as a bit of a stress management technique. He was basically doing very well from my point of view and then the next time I saw him which was two months later I had a worrying, worryingly dark bloke, he’d stopped doing his voluntary work, he was basically, his counsellor was concerned about his degree of anger over the situation that had occurred with the rehab suddenly occurring on the scene and he was angry enough that he felt that he had feelings of wanting to harm other people and of wanting to harm himself…. seriously and that was a very, very big contrast in two months. I had never seen him like that before.”
36. In cross-examination Dr Knight was asked whether, if the applicant’s workers’ compensation process stressor were removed, she would expect his psychological condition to improve. Her evidence was as follows:
“It would improve, whether it – it would certainly make a difference to him if that pressure was removed from him, yes, a big difference. Would I then have a gentleman that was able to function socially as you or I could, no.
But you’re not able to say whether he would function as well as you or I could irrespective of the workers’ compensation process. Or to put it another way, you didn’t ---?--- From a capacity to basically if that stress were taken away from him I would have a gentleman that would be able to function better in society. There would be a – with that stress removed I would have a greater capacity to see him be able to move from a home based exercise program to one in which he could socialise. I might even have a gentleman that might be able to venture from that then into some volunteer type work as well, all of that at the moment is just not happening. So it would certainly improve his wellbeing, yes.
If I put it another way would you agree Mr Lawson would certainly improve but how he would be relative to the rest of or any other individual it’s not possible to say, is that---?--- He would be a gentleman on anti-depressant medication.”
The Evidence of Sister Emilie Cattalini
37. Sister Cattalini confirmed that she is a registered psychologist and that her practising address is the Mary MacKillop Centre in South Perth. She also confirmed that she had prepared a report dated 29 October 2007 regarding the applicant (Exhibit A4) and a witness statement dated 16 January 2008 (Exhibit A5) for the purpose of the present proceeding. She confirmed that the contents of each of those documents are true and correct, to the best of her knowledge and professional expertise.
38. Sister Cattalini’s witness statement is as follows:
“I am a registered Psychologist and have been in practice since 1991.
In 1996 Mr Barry Lawson requested counselling because, being engaged in a legal battle concerning injury claims, he was under extreme stress.
He had frequent thoughts of suicide and of inflicting harm on others.
He also experienced sleeplessness, increased use of alcohol and growing dependency on medication. He was reclusive, short-tempered, and his personal care and family relationships had deteriorated.
Over the ensuing years, while the legal battle continued, Mr Lawson has continued to seek help and has engaged in learning several stress management and stress reduction techniques.
From time to time, when his progress towards a resolution of his dispute seems to be deliberately blocked, his mental state becomes fragile. Recognising the signs he seeks help immediately.
Also, requests for help have been deliberately delayed or refused.
One such example is the delaying of authorization for home help after surgery till due time had elapsed. Help was rightfully available for six weeks after surgery but authorization for the help was delayed beyond six weeks by which time his right to the help had expired. This occurred even though the request for help had been granted in court.
If is difficult to perceive such delays as anything but deliberate actions on the part of the respondent. They are, consequently, stress producing for Mr Lawson.
The most recent severe deterioration in mental health suffered by Mr Lawson was around June 2006 due to the stress incurred after a request by the respondent that he undergo vocational assessment and this by an unapproved provider.
It was not the request in itself that caused stress.
Firstly, it was the fact that Mr Lawson’s Doctor has asked that such assessment take place many times over the years and was constantly refused.
Secondly, subsequent to the request for vocational assessment, Mr Lawson was again subjected to inconsistencies by the respondent, being asked to go to an approved provider being a case in point.
Thirdly, it became obvious that there was no real intention of finding him employment because of the delay – 60 days after receiving the report no progress had been made.
At this time Mr Lawson again experienced severe reclusive behaviour and thoughts of suicide and harm to others returned.
Not being engaged in meaningful employment has been a major factor in Mr Lawson’s deterioration.
After his most recent deterioration, Mr Lawson began a personal programme of physical exercises and continued his previous mental therapies.
At this time he was also placed on medication for depression by Dr Wu, Psychiatrist.
Mr Lawson has undoubtedly sustained extreme mental pressure, exacerbated by delays and inconsistencies.
Because Mr Lawson has become most proficient in, and very faithful to, his stress management techniques my role in his mental health care is now as Mentor rather than Counsellor.”
39. In cross-examination Sister Cattalini confirmed that the applicant had done “voluntary maintenance work” at the Mary MacKillop Centre over a period of about two years in 2000-2001 when the Centre was being renovated. She described the nature of that work as organising tradespersons to carry out repair and maintenance work at the Centre.
40. Sister Cattalini, when asked for her opinion regarding the effect on the applicant’s mental health of the respondent’s now terminating the vocational rehabilitation process in his case, said that it “would certainly relieve his stress”.
41. Sister Cattalini said that the applicant’s present mental state is better than it was in 1996 when he first sought counselling. She said that, prior to 2006, his mental state fluctuated but that in 2006 it deteriorated almost to the 1996 level. She added:
“… but it wasn’t as prolonged, and I would imagine that that was because Mr Lawson had built up his practices of being able to then self-monitor himself and do the work, and also kept in contact, with the counselling and monitoring. So he was better able to handle it because he had the techniques and the tools to handle it. But it was – he did – well, he went back into thoughts of suicide, he went back into reclusiveness, he went back into personal health deterioration, personal appearance deterioration, so all those indicators were there again.”
The Respondent’s Case
42. The respondent tendered in evidence:
· a letter from Ms Elaine Duncan, Rehabilitation Consultant, CRS Australia, to its solicitors, dated 30 November 2007 (Exhibit R1) (referred to in paragraph 29 above);
· a facsimile from its solicitors to the applicant, dated 12 December 2007, which states:
“Thank you for your facsimile transmission of the 12th instant.
We confirm that for current purposes, CRS Australia has not been instructed to further your return to work efforts.” (Exhibit R2);
· a facsimile from it to the applicant, dated 13 December 2007, which states:
“We acknowledge the receipt of your facsimile dated 13 December 2007.
At all times we are willing to assist you to return to work. However given the medical advice provided by Dr Knight, all such efforts to have you return to work will not be progressed at this time.” (Exhibit R3)
The respondent presented no further evidence.
Analysis
Does the applicant suffer from a mental ailment?
43. The medical evidence before the Tribunal supports the proposition that the applicant has been suffering from a mental ailment since June 2006, or, alternatively, that he has been suffering from a mental ailment since 1996 which was aggravated in June 2006. There is no medical evidence before the Tribunal which is inconsistent with either of those alternative propositions. Accordingly, the Tribunal finds, on the basis of the medical evidence before it, that the applicant suffers from a mental ailment and has been so suffering since at least June 2006.
44. As regards the nature and character of the mental ailment suffered by the applicant, the Tribunal finds, on the basis of the evidence of Dr Knight, that in or about June 2006 the applicant’s existing mental condition substantially deteriorated to the extent that he then contracted a psychiatric disorder. It is not necessary for the Tribunal to make a finding as to the precise diagnosis of that psychiatric disorder but the Tribunal is satisfied, on the basis of Dr Knight’s evidence (which included a reference to a provisional diagnosis of adjustment disorder with anxious/depressed mood made by Dr Wu, Psychiatrist, on 5 July 2006 and his suggesting anti-depressant medication for the applicant), that the applicant’s ongoing psychiatric disorder, which he contracted in or about June 2006, involves depression.
Did the applicant’s psychiatric disorder arise out of, or in the course of, his employment by the respondent, or was it contributed to in a material degree by that employment?
45. The respondent submitted, citing Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at 641, that such mental ailment as the applicant suffers from did not arise out of, and was not contributed to by, any event or occurrence in the course of his employment by the respondent, or any characteristic of the work performed or the conditions in which it was performed in the course of that employment. Rather, the respondent submitted, such mental ailment arose by reason of the compensation litigation process and the rehabilitation process which were subsequent, and extraneous, to the applicant’s employment by the respondent.
46. The Tribunal does not accept the respondent’s submission. The Tribunal accepts the applicant’s evidence, and the supporting evidence of Dr Knight and Sister Cattalini, that the substantial deterioration in his mental health in or about June 2006 – which, the Tribunal has found, involved the contraction of a psychiatric disorder involving depression – was precipitated by his perception that the respondent had dealt with the matter of his vocational rehabilitation, following his work-related knee injury sustained in 1991, in an apparently arbitrary and inconsistent manner which indicated a “malicious disregard for his wellbeing” (see Dr Knight’s report of 5 September 2007 set out in paragraph 33 above). On the basis of that evidence, the Tribunal is satisfied, and finds, that the applicant’s psychiatric disorder has arisen out of, or has been contributed to in a material degree by, his employment by the respondent.
47. The Tribunal notes, for the purpose of the abovementioned finding, that it does not matter whether the applicant’s subjective perception of the respondent’s conduct is reasonable or unreasonable – it is sufficient, for present purposes, that (as the Tribunal has found) he genuinely had the abovementioned perception and that that perception precipitated his psychiatric disorder: Wiegand v Comcare (2002) 72 ALD 795 at 797 [31].
The applicant’s psychiatric disorder is a compensable injury
48. Accordingly, the Tribunal finds that the applicant’s psychiatric disorder is an “injury” for the purposes of the Act, and that the respondent is liable, pursuant to ss 24 and 26(1) of the Act, to pay compensation, in accordance with the Act, to the applicant in respect of that injury.
Decision
49. For the above reasons the Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24 and 26(1) of the Act, to pay compensation, in accordance with the Act, to the applicant in respect of the psychiatric disorder which he contracted in or about June 2006.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member.
Signed: ........[sgd D Brodie].....................................
AssociateDate of Hearing 19 May 2008
Date of Decision 23 July 2008
Representative of the Applicant Self-represented
Counsel for the Respondent Mr L Tsaknis
Solicitor for the Respondent Cocks Macnish
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