Lee and Comcare

[2003] AATA 281

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 281

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2000/482
  )          No A2002/200

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FIONA MICHELLE LEE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M D Miller, AO, Member

Date27 March 2003

PlaceCanberra

Decision The tribunal affirms the decisions under review.  The respondent is not liable to pay costs.

...................[Sgd]..................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – Death of employee – claim by dependants – death by suicide – employee suffered from recurrent major depression – whether employment made material contribution to employee’s disease

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“ailment”, “dependant”, “dependent”, “disease”, “injury”), 7(4), 14(1), 17(1), (2), (7).

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626

Hawkins v Comcare (2001) 34 AAR 383

Commonwealth v Beattie (1981) 35 ALR 369

REASONS FOR DECISION

27 March 2003 Mr M J Sassella, Senior Member
Dr M D Miller, AO, Member          

APPLICATION

N2000/482

1.      Fiona Michelle Lee (“the applicant”) applied to the Administrative Appeals Tribunal (“the tribunal”) on 20 December 2000 on behalf of her deceased husband, Michael Jeffrey Lee (“the deceased”, “the employee”) for review of a decision dated 8 March 2000 (ex TD2/T33) which was affirmed on review by a Comcare (“the respondent”) delegate on 7 November 2000 (ex TD2/T47).  The decision was to reject a claim for compensation lodged by the deceased with the respondent on 30 October 1999 before he died (ex TD2/T10).  The claim referred to the employee’s depressive illness.

N2002/200

2. Fiona Michelle Lee has also applied to the tribunal for review of a decision by a delegate within the respondent agency dated 30 January 2002 (ex TD1/T4), a decision affirmed on review on 14 May 2002 (ex TD1/T14). The decision was to reject a claim by Mrs Lee for compensation under s 17 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1] in relation to the death of her husband, the employee, who died on 3 April 2000.

[1] tribunal convened a hearing in these matters in Canberra on 22 and 23 January 2003.  Mr Mark O’Neill, a solicitor, represented Mrs Lee.  Ms Lorraine Walker, a barrister, represented Comcare.  The tribunal heard oral evidence from Ms N F Reay, mother of the deceased, the applicant, Mr W T Gillard, the deceased’s father-in-law, Mr C O’Neill, the deceased’s brother-in-law, Mr R L Rodgers, the deceased’s former work supervisor, Dr J Saboisky, a psychiatrist and Dr R Tym, another psychiatrist.

4.      The tribunal received into evidence and marked as exhibits the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T27) provided by the respondent for application A2002/200.

Exhibit TD2 - Section 37 Statement and associated documents (exhibits T1 – T47) provided by the respondent for application A2000/482.

Exhibit A1 – Applicant’s statement of facts and contentions, 20 September 2002.

Exhibit A2 – Statement by Ms N F Reay, 21 January 2003.

Exhibit R1 – Respondent’s amended statement of facts and contentions, 28 August 2002.

Exhibit R2 – Statement by Mr R L Rodgers, 13 August 2002.

Exhibit R3 – Report by Dr R Tym, psychiatrist, 14 August 2002.

Exhibit R4 – Report by Dr J Saboisky, 27 August 2002.

LAW

5. The deceased claimed compensation in respect of a disease, depressive illness, to which his employment with Totalcare Industries was alleged to have made a material contribution. This is the subject of application A2000/482. Under the Act an employee must have an injury, as defined in s 4(1) of the Act if he or she is to qualify for compensation. The definition of “injury” is:

injury means:

(a) a disease suffered by an employee; or

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

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

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

6. As that definition allows a disease to be regarded as an injury, the definition of a “disease” is relevant. Under s 4(1) of the Act a disease is:

(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 by the Commonwealth or a licensed corporation;

7. In s 4(1) an “ailment” is also defined:

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

8. If, then, the tribunal can be satisfied on the balance of probabilities that Mr Lee’s depressive illness was materially contributed to by Mr Lee’s work for Totalcare Industries he would have an injury in accordance with the Act. Further, if Mr Lee was suffering from an injury under the Act, and his death resulted from that injury, Mrs Lee’s dependant’s claim in application A2002/200 would succeed in accordance with s 17 of the Act. Section 17, relevantly, states:

Compensation for injuries resulting in death

17. (1) This section applies where an injury to an employee results in death.

(2) Subject to this section and sections 16 and 18, if the employee dies without leaving dependants, compensation is not payable in respect of the injury.

(3) Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $120,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.

…

(7) An amount of compensation paid or payable under this Act before the death of an employee:

(a) is not affected by subsection (2);

(b) shall not be deducted from the compensation payable under subsection (3); and

(c) shall not be taken into account in determining the compensation payable under subsection (4).

…

9.      

Mrs Lee and the children of Mrs Lee and the deceased may recover compensation if they were “dependants” of Mr Lee according to this definition in

s 4(1) of the Act:

dependant, in relation to a deceased employee, means:

(a) the spouse, father, mother, step-father, step-mother, father-in-law, mother-in-law, grandfather, grandmother, son, daughter, step-son, step-daughter, grandson, grand-daughter, brother, sister, half-brother or half-sister of the employee; or

(b) a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee;

being a person who was wholly or partly dependent on the employee at the date of the employee's death;

dependent means dependent for economic support;

10. Mr Lee first saw a doctor about his depressive illness on 8 December 1998 (see paragraph 20 below). In accordance with s 7(4) of the Act that would be the date of injury for the purposes of any claim:

(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

11.     The respondent accepted neither claim in contention in these proceedings.  There is, accordingly, an evidentiary burden on the applicant to satisfy the tribunal that one or both claims should be granted (Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413).

CHRONOLOGY

12.     Mr Lee was born on 24 January 1968 (ex TD2/T10).

13.     There is evidence that Mr Lee experienced his first depressive episode in 1984 at the age of 16 or 17 years (see paragraph 21 below.)  Family members dispute this.

14.     In the mid-1980s Mr Lee was a plumber working on the construction of New Parliament House (ex TD1/T7).

15. Mr Lee subsequently secured employment in the ACT Housing Branch where he worked as a maintenance inspector (ex TD1/T7).

16.     On 15 December 1990 Mr Lee married the applicant (ex TD1/T6).

17.     On 7 October 1992 Mr Lee’s daughter, Kayla Michelle Lee, was born (ex TD1/T6). 

18.     On 24 May 1997 Mr Lee’s son, Matthew Thomas Lee, was born (ex TD1/T6). 

19.     On 24 July 1997 Mr Lee transferred from ACT Housing to Totalcare Industries (ex R2).

20.     On 7 December 1998 Mr Lee set up his car in such a way as to commit suicide by inhalation of exhaust fumes (ex TD2/T3 per Dr Tym).

21. On 8 December 1998 Mr Lee consulted the ACT Mental Health Service and told that agency that he had two untreated episodes of depression eight and 10 years before (ex TD1/T23/219).

22.     On 17 December 1998 Mr Lee saw Dr J Ette, a general practitioner, about a depressive illness stating that he was under stress at work (ex TD2/T32 per Dr Ette).

23.     On 30 December 1998 Mr Lee first saw psychiatrist Dr Tym (ex TD2/T32). 

24.     On May 1999 Mr Lee inquired about taking a voluntary redundancy package from Totalcare Industries

25.     On 8 July 1999 Mr Lee was promoted to client team leader in Totalcare (ex R2).

26.     In 11 August 1999 Mr Lee contemplated jumping from the roof of the Currong Flats (ex TD2/T10).  He saw Dr Tym that day (ex TD2/T5). 

27.     On 8 October 1999 Mrs Lee telephoned ACT Mental Health about Mr Lee’s depression, referring to stress he was under at work (ex TD1/T20/89).

28.     On 10-12 October 1999 Mr Lee was treated at Canberra Hospital Emergency Department (ex TD1/T20/102-109).  Mr Lee is recorded as complaining of his inefficiency at work, feelings of inadequacy and loss of confidence in his ability to work. 

29.     Between 13 and 25 October 1999 Mr Lee was an inpatient at Calvary Hospital’s Hyson Green Private Psychiatric Unit under treatment from Dr J Saboisky, a psychiatrist (ex TD2/T30 per Dr Saboisky). 

30.     On 30 October 1999 Mr Lee lodged his compensation claim (ex TD2/T10). 

31.     On 1 November 1999 Mr Lee successfully applied to Totalcare for leave without pay from 17 November 1999 to 18 May 2000 (ex TD1/T6).

32. On 17 November 1999 Mr Lee commenced work at ACT Community Housing as an asset maintenance manager (ex TD1/T6). This entity was a private sector body, not an element of the ACT Government.

33.     On 8 March 2000 Comcare issued a determination denying liability for Mr Lee’s depressive disorder (ex TD2/T33).

34.     On 3 April 2000 Mr Lee committed suicide (ex TD1/T15, T26/339).

35.     On 17 May 2000 Mr Lee’s leave from Totalcare was due to expire.  Mrs Lee’s oral evidence was that, at the time of his death, Mr Lee had not resolved whether to leave Totalcare or return.

EVIDENCE

ms n f reay

36.     Ms Reay is the mother of the deceased.  Her evidence was to the following effect.

37.     She described Mr Lee as the third of four children, a normal child who related well with his sisters.  He was “happy go lucky” and a high achiever who excelled at sport.  The family was happy and normal until Ms Reay’s marriage to Mr Lee’s father broke down.  The break up was not bitter and none of the children seemed affected by it.  Mr Lee was 13 at the time and assumed the role of the male of the household.  Mr Lee maintained a good relationship with his father following the break up, however, his father remarried and the father’s second wife barred Mr Lee and his siblings from the father’s house.  Mr Lee was said to be unhappy about that.  After that time Mr Lee and his father had “no relationship”..  Ms Reay said that this brought about no noticeable change in Mr Lee’s personality.

38.     Mr Lee had lived with Ms Reay until he married the applicant.  Ms Reay saw no sign of any problem.  After Mr Lee married the applicant Mrs Lee phoned Ms Reay in about 1997 to tell her that Mr Lee was depressed.

39.     Mr Lee phoned Ms Reay two or three times a week.  He would discuss his house, his children and his work.  He gave Ms Reay considerable information about his work in his final two years.  Ms Reay said that Mr Lee’s attitude to his work was excellent.  He was a high achiever and prided himself in his work.  However, after Ms Reay became aware of Mr Lee’s illness she noticed changes.  Mr Lee would cry.  He would say he had never done anything good in his life and that he was useless.  He had been especially worried about a job he was supervising that was occurring in the Braddon flats.  The project budget was $5 million.  He was having problems with the contractors.  These were the flats from the roof of which Mr Lee had been tempted to jump. 

40.     Ms Reay had accompanied Mr Lee to his first consultation with Dr Saboisky.  She recalled the deceased referring to his work and the marital break up in that session.  She could recall no detail.  She formed the view that Mr Lee was less forthcoming for Dr Saboisky than he was for Ms Reay and she had to prompt him to give some information to Dr Saboisky. 

41.     Ms Reay recalled that Mr Lee co-operated in having all treatments recommended by the medical experts.  Ms Reay had very regular contact with Mr Lee until his death.  Ms Reay was confident that Mr Lee’s upbringing played no part in his psychiatric problems. 

42.     In her written statement (ex A2) Ms Reay mentioned her marriage to her second husband.  She said that, after about a year of awkwardness in his relationship with his stepfather, Mr Lee adjusted and began to appreciate Mr Reay to the extent that he confided in him in the time leading to his death.

applicant

43.     Mrs Lee gave evidence to the following effect.

44.     She met Mr Lee through a common interest they had in water skiing.  She said that Mr Lee loved life and water skiing especially.  She said that Mr Lee got on well with his stepfather.  She met Mr Lee when he was 18 years old.  She was unaware of any earlier problems he may have had.  She was unaware of any illness affecting Mr Lee before 1998..

45.     She said Mr Lee loved his work and prided himself on doing a good job.  It was something he discussed with Mrs Lee.

46.     Mrs Lee detailed the deceased’s work.  He was a plumber.  He always worked in government jobs.  He progressed to supervisory duties..  He moved to Totalcare.  He was in charge of a group of four or five at Totalcare.  He was a supervisor of maintenance on government housing.  He had to meet budgets and deal with a combination of his own staff, contractors and the housing tenants.

47.     Mr Lee was apparently “fine” in 1998 until one night in December when he said he had not slept and had strange ideas in his head.  He was crying.  Mrs Lee was aware that he was involved the next day in a tender interview.

48.     Mr Lee had tried to gas himself in his car, unknown to Mrs Lee.  He phoned Mrs Lee later.  She took the deceased to the doctor, a Dr Bradfield.  They saw Dr Ette.  Dr Ette referred the deceased to Dr Tym.  Dr Tym gave the deceased anti-depressants.  Mrs Lee accompanied her husband to see the doctors.  The deceased discussed work with them.  Mrs Lee recalled her husband discussing scaffolding with Dr Ette for an hour.

49.     Mrs Lee could not recall Mr Lee telling any doctor of psychiatric incidents from his earlier life.  She conceded that Dr Tym must have asked about this.  She recalled some discussion about Mr Lee’s father with the doctors.  Mr Lee had never discussed this with Mrs Lee.  She considered that Mr Lee was less open with the doctors than he was with her.

50.     Mrs Lee said that Mr Lee had improved by the end of January 1999, however he went “down hill” from August 1999 when issues surrounding the Braddon flats arose, although he experienced occasional remissions when his drug therapy worked best.

51.     Mrs Lee did not accompany Mr Lee when he saw Dr Saboisky at Calvary Hospital.  This led to the two weeks Mr Lee spent at Hyson Green Psychiatric Unit.  ECT[2] was administered as part of the therapy there.  Following that treatment Mr Lee seemed to Mrs Lee to have recovered.  He got a new job (with ACT Community Housing) and, as Mrs Lee put it, “He was back to the normal Mick”.. 

[2] Electroconvulsive therapy, sometimes referred to as “shock treatment”..

52.     Mr Lee was happy in his new job.  The situation changed, in Mrs Lee’s view, just before Mr Lee died.  One of the worries that he had concerned an abrasion on the duco of his company car.  This was also the “crunch time” when Mr Lee had to decide whether to move permanently to ACT Community Housing or return to Totalcare.

53.     Mrs Lee spoke of Mr Rodgers, her husband’s supervisor at Totalcare.  She met him once or twice when he visited her husband at home.  He told Mr Lee to take as much time off as he needed and told Mr Lee how Totalcare would cover his work in his absence. 

54.     Mrs Lee said that her husband had a “great” relationship with her father.  The two knew each other before she and Mr Lee began going out together.

55.     In cross-examination Ms Walker, counsel for Comcare, asked Mrs Lee about an episode affecting Mr Lee that had lasted for one day some years before the problems that began in 1998.  Mr Lee had visited Mrs Lee at work on that occasion.  She had thought no more of it until Mr Lee mentioned it when seeing a doctor, accompanied by Mrs Lee.  Mr Lee was about 20 years old at that time. 

56.     Mrs Lee told Ms Walker that she was not aware of Mr Lee having had psychiatric difficulties for a number of months just after he finished his plumbing apprenticeship.  Apparently there was evidence that he had contemplated suicide at the time. 

57. Ms Walker put to Mrs Lee material dated 8 October 1999 from the ACT Mental Health Service records (ex TD1/T20/95):

“Reports that he has always felt a lack of confidence in the things he does but has masked it.  Reports that he has always suppressed his emotions until these latest episodes of depression when he cries continually.”

58.     Mrs Lee did not accept that this accurately described the Michael Lee that she had known up to 1998.  Mrs Lee was not prepared to accept that Michael Lee, as she had known him, was not the complete Michael Lee.  Mrs Lee agreed that she had no knowledge of any propensity Mr Lee may have had to commit suicide in his earlier years.

59.     Mrs Lee told Ms Walker that Mr Lee appeared to be coping well at ACT Community Housing.  Thus it had been something of a surprise when Mr Lee committed suicide on Monday 3 April 2000.  Mrs Lee recalled, however, that Mr Lee had been in a “down” mood over the weekend.  On the Monday morning he had been exercised by the imminent return of his Community Housing boss who had been away.  Apparently Mr Lee was anxious that he had done all that he was required to do in his boss’s absence.  Mrs Lee was confident that Mr Lee had performed to expectations. 

60.     Mrs Lee told Ms Walker that Mr Lee did not tell ACT Community Housing of his mental illness. 

61.     Ms Walker asked Mrs Lee about the incident at the Currong flats.  Mr Lee had been called to attend because of a dispute between the tenant and a contractor.  The contractor was being denied access to the flat. 

mr w t gillard

62.     Mr W T Gillard, Mr Lee’s father-in-law, gave evidence to the following effect.

63.     Mr Gillard met Mr Lee in the mid-1980s when Mr Lee was an apprentice plumber working on New Parliament House (ex TD1/T7).  Mr Gillard was generally impressed by Mr Lee.  Mr Gillard and Mr Lee had common interests in plumbing and water skiing.  They became close friends.  He regarded Mr Lee as very competent in all he did.  Mr Lee “loved his work”. 

64.     At Totalcare Mr Lee had some concerns about the quality of some workers working for him.  They had been redeployed from elsewhere in the organisation and were not quite good enough.

65.     Mr Gillard became aware of Mr Lee’s illness when he noticed a change in Mr Lee’s attitude to work.  This was about mid-1998.  Mr Gillard thought it a temporary problem.  Mrs Lee had then telephoned Mr Gillard at the coast to tell him that Mr Lee had tried to commit suicide. 

66.     Mr Gillard detailed his understanding of Mr Lee’s work problems.  At the flats in Braddon some tenants were very unco-operative.  Even Mr Gillard, recounting his own experience as a plumber, could not gain entry to some ACT Housing flats to inspect newly installed hot water services.  Mr Lee had been a go-between dealing with the tenants.  Mr Lee did not know how to resolve problems.  Mr Gillard could not help.  In essence Mr Lee had problems with contractors needing entry into the flats to do work and with the tenants who were unwilling to allow them access.  Mr Gillard had been surprised that Mr Lee discussed these problems with him and not with his superiors at Totalcare. 

67.     Mr Gillard said that in his final 18 months of life Mr Lee was a changed man.  He was no longer happy-go-lucky.  He worried about things.  Mr Lee’s total emphasis was on his work. 

68.     Mr Gillard told Ms Walker that he had no knowledge of any psychiatric distress suffered by Mr Lee until the last 18 months of his life.  He was not aware that Mr Lee was at risk of suicide.  Mr Gillard refused to accept that Mr Lee could have concealed his illness or his emotions from Mr Gillard.  However, he accepted that Mr Lee concealed his illness from strangers. 

69.     Mr Gillard considered that Mr Lee became more concerned at work after he became a team leader.  He could not say when that was but placed it as occurring in 1998 or 1999. 

70.     Mr Gillard considered that Mr Lee could have found alternative employment as a plumber when he became team leader. 

mr c o’neill

71.     Mr C O’Neill, husband of Mr Lee’s sister, gave evidence to the following effect.

72.     He met Mr Lee when he took Mr Lee’s sister out in 1981.  Mr C O’Neill was seven years older than Mr Lee.  Messrs Lee and C O’Neill had a good relationship.  They talked together and played sport together. 

73.     Mr C O’Neill was aware of Mr Lee’s work problems.  His discussions with Mr Lee had veered away from sport and towards work.  Mr C O’Neill became aware of Mr Lee’s illness in 1998.  He said that Mr Lee had been brilliant, smart, meticulous and proud of his achievements.  He understood Mr Lee’s problems at Totalcare to stem from having to deal with tenants and contractors.  Mr C O’Neill had to deal with housing tenants himself in the past and said that they can be difficult.

74.     Mr C O’Neill did not regard the break up of Mr Lee’s parents’ marriage as having any particular effect on Mr Lee.  Mr Lee did not discuss this with Mr C O’Neill.

75.     Mr C O’Neill was unaware of any psychiatric issues affecting Mr Lee before 1998. 

mr r l rodgers

76.     Mr Rodgers had been Mr Lee’s supervisor at Totalcare Industries.  He gave evidence to the following effect. 

77.     Mr Rodgers said that, prior to Mr Lee becoming ill in late 1998, Mr Lee had no problems managing any of the projects or any of the teamwork in Totalcare.  Later Mr Lee told Mr Rodgers that he was not really sure what was wrong and he proceeded to become sicker and took some time off work.  Mr Lee's problems were a lack of concentration and difficulty in focusing on particular things.

78.     Mr Rodgers said that he and Mr Lee worked very closely together on all occasions and got on very well.  In his view, if Mr Lee needed a hand he let Mr Rodgers know.  Asked if he was able to offer any direct work assistance if Mr Lee had difficulties with a particular job, Mr Rodgers said that he had in fact taken over the management of Mr Lee's team and that they and Mr Lee had conferred in relation to projects Mr Lee may wish to carry on with.  Mr Lee elected to continue to run several jobs in Braddon.  These involved roof replacement and downpipe replacement.  Mr Rodgers said that Mr Lee had flexibility in the allocation of work within his own team.  In cross-examination Mr Rodgers explained that he and Mr Lee worked at desks about 15 feet apart.  They spoke regularly.  They had regular meetings with ACT Housing.  Issues of concern to any of Mr Rodgers, Mr Lee or the contractors were brought up with ACT Housing on a fairly regular basis.  Mr Rodgers was responsible for four teams, one of which was Mr Lee’s.  He regarded Mr Lee as perhaps the most effective team leader.  He also agreed that Mr Lee would prefer to resolve disputes himself.

79.     Mr Rodgers explained that Mr Lee had had experience dealing with housing tenants prior to joining Totalcare.  He had also had dealings with contractors in his earlier work.  Mr Rodgers also explained that if there was a dispute between a housing tenant and a contractor, or a dispute between the tenant and a Totalcare manager, the matter was passed back to ACT Housing who would be the final decision-maker.  While ACT Housing worked to resolve a problem the workers would proceed on to the next property.  Later Mr Rodgers explained that, if there was a problem involving a contractor, there was a contract manager in Totalcare to whom the issue could be passed for resolution. 

80.     Mr Rodgers was of the view that, given Mr Lee's skills and qualifications, he would have been able to obtain work of a different nature from that at Totalcare had he sought to do so.  Mr Lee had obtained an associate diploma in building from the Canberra Institute of Technology.  He also had a base trade as a plumber.  Mr Rodgers considered that Mr Lee would have made a success of either type of job.

81.     Mr Rodgers was first aware of Mr Lee’s illness late in 1999.  He was unaware of the nature of the illness.  He first saw a certificate describing depressive illness in about August 1999.  From that time onwards Mr Lee spent little time at work at Totalcare. 

82.     Mrs Lee’s counsel, Mr M O’Neill, asked Mr Rodgers about the facilities available in Totalcare to offer support to an employee experiencing psychiatric problems.  Mr Rodgers referred to a number of supports available to Mr Lee:

·Mr Rodgers relieved Mr Lee of certain of his responsibilities, in consultation with Mr Lee.  He thought this was late in 1998.

·Mr Lee was directed to the Employee Assistance Scheme.  This is a free counselling service providing up to four counselling sessions for an ACT employee requiring help.

·There were leaflets produced by the ACT Government dealing with work stress, occupational health and safety, etc.

·Mr Lee was invited to take as much time off in 1999 as he needed in order to become well again.

·Mr Lee was invited to take work home to do there if that would assist.

83.     There was a suggestion in Mr C O’Neill’s statement (ex TD1/T8) that Mr Lee feared for his job security in Totalcare because of job restructuring.  Mr Rodgers said that his area in Totalcare had reduced in size from 111 to 87 over the previous three years.  However, Mr Rodgers considered that Mr Lee would have survived this reduction in size.  Mr Rodgers had seen Mr Lee as the likely candidate to take over Mr Rodgers’ job when Mr Rodgers retired.  None of the employees who had been shed had been involuntarily declared redundant.  There is considerable work in the private building industry for employees such as are in Mr Rodgers’ area in Totalcare. 

84.     Mr O’Neill asked Mr Rodgers a series of questions which elicited information to the effect that the middle-management job occupied by Mr Lee in Totalcare was multi-faceted.  It required the occupant to take some interest in performance against budgets in addition to managing a team with varying talents they brought to bear in doing house maintenance work and in addition to outsourcing some relatively menial tasks.  It was established that Mr Lee was relatively young, at age 32, in such a job.  However, he had a colleague running one of the other teams who was roughly the same age.

dr j saboisky

85.     Dr Saboisky was Mr Lee’s treating psychiatrist at Hyson Green Psychiatric Unit from 11 to 25 October 1999.  Mr Lee continued to see Dr Saboisky until shortly before his death (ex TD1/T24/276).  In a report to Comcare dated 15 December 1999 Dr Saboisky provided the following germane information. 

86.     Mr Lee told Dr Saboisky that he had been depressed for a considerable period of time and was particularly worse over the two months before seeing Dr Saboisky.  He suffered from major depression.  Asked to identify causal factors, Dr Saboisky wrote, “I am unaware of any factors which caused his depression.  He has underlying obsessional personality traits which could have been a factor.  By obsessional  I mean he's a high achiever, perfectionistic, orderly and checks his work in repeated fashion.  He had a previous episode about ten years ago which lasted three to four months not long after completing his plumbing apprenticeship and in between he has had periods of depressed mood lasting days rather than weeks.” 

87.     Mr Lee had not told Dr Saboisky of any employment factors which contributed to his condition.  He said that, on the contrary, his superiors were very supportive of him. 

88.     Dr Saboisky wrote that he believed that Mr Lee had a tendency towards depression as evidenced by his previous depressive episode and a recent episode suffered had been a recurrence of that pre-existing condition.  Dr Saboisky reiterated several times in this report that he was unaware of any employment factors or pressures of daily living causing Mr Lee's depression and that he did not believe that Mr Lee's problems were a result of his employment.

89.     On 27 August 2002 Dr Saboisky provided a second report (ex R4) in which he addressed the information provided in their written statements by Mrs Lee, Mr Gillard, Mr C O’Neill and Mr Rodgers.  Dr Saboisky reported that this material did not cause him to alter his basic view that Mr Lee suffered from major depressive illness which impacted adversely on all aspects of his life, particularly his work performance.  He wrote that serious depression causes profound effects on the sufferer's self-esteem, confidence and occupational competence.  There is a diminution of powers of concentration, retention and memory which compounds the erosive effects of inadequate sleep and unnecessary worry.  He said that serious depression has such a profound effect on people's self-worth and sense of hope that over 10 percent of sufferers kill themselves.  Dr Saboisky said that, from his reading, Mr Lee's employment was merely the context where his depressive illness expressed itself.  He said that, while Mr Lee had expressed some difficulties especially to his wife about work, these, in Dr Saboisky's view, were products rather than causes of his depressive disorder.

90.     In oral evidence Dr Saboisky said that Mr Lee’s depression was biological, that he had experienced earlier episodes and that Mr Lee had no good reason to be depressed.  Dr Saboisky was confident that Mr Lee’s condition was not connected with his employment because of his understanding of Mr Lee’s personal life and work history. 

91.     Dr Saboisky referred to the ECT treatment he administered on Mr Lee at Hyson Green.  There were six ECT sessions over the two weeks.  He had a very good response to ECT (per Dr Saboisky, ex TD1/T24/283).  Dr Saboisky told the tribunal that ECT is used only in biological depression cases.  He explained that there is a risk of a relapse following ECT.  In about 50% of cases there can be a recurrence of depression with no independent precipitating factor.

92.     Dr Saboisky described biological depression as stemming from chemical changes in the person’s brain.  Biological depression can also be termed endogenous depression.  It can be masked by the sufferer.  Referring to endogenous depression, Dr Saboisky said that studies suggest that the first depressive incident requires a trigger but subsequent episodes do not. 

93.     Dr Saboisky said that, in Mr Lee’s case, he became aware of earlier depressive incidents from Dr Tym’s material. 

dr r tym

94.     There was a series of reports from Dr Tym.  The first was dated 7 January 1999 (ex TD1/T25/302) and was prepared for Mr Lee's treating doctor.  Dr Tym had seen Mr Lee on 30 December 1998 following Mr Lee's attempt to gas himself in his car on 7 December 1998.  Dr Tym noted that the depression was not obviously precipitated by any event and that it seemed that there was no known depressive or other mental illness in his genetic family.  Dr Tym recorded that Mr Lee was depressed, but only for a week each time, at the age of 16 and again at the age of 21.

95.     In a report to Comcare dated 8 December 1999 (ex TD1/T25/325) Dr Tym had more to say about the incidents at the ages of 16 and 21.  He recorded that in October 1999, just prior to Mr Lee's admission to Hyson Green, he admitted to Dr Tym that he had underplayed the severity of those incidents.  He told the doctor that on one of those earlier occasions he had been very seriously suicidal, and on one occasion of intense suicidality he had been standing on a high rooftop, preparing to jump to his death.  He had said that he felt similarly suicidal when he prepared his car for suicidal gassing on 7 December 1998. 

96.     Dr Tym noted that Mr Lee said that on 22 November 1998 he had been faced with having to work on a $5 million contract and for some months had been feeling unsure of his capabilities.  He had lain awake at night thinking about the contract and as a result of the anxiety he said that his stomach churned, his heart raced and he could not concentrate.  He developed abdominal pains and started vomiting. 

97.     However, by 7 January 1999 he was no longer feeling depressed, was sleeping well and eating normally.  On 18 February 1999 Mr Lee told the doctor that he felt well and was amazed that the depressive illness had occurred.  He said that, looking back on it, there was nothing in his recent life that led to the depression.  He thought that perhaps it was based on his parents' splitting up.

98.     Dr Tym had later seen Mr Lee in April and July 1999 and he was progressing very well.  However, by August 1999 his depressive symptoms had returned.  In September 1999, however, he reported that he was feeling normal without any depressive symptoms, despite work pressure increasing.  He told the doctor that his wife was somewhat stressed with an upcoming three-day golf weekend involving him.  Mr Lee said he had promised his wife that he would not get drunk while away on this trip as he had always done before.  He explained that Mrs Lee feared that drinking brought on Mr Lee's depression. 

99.     His condition waxed and waned in September.  Sometimes he was feeling normal; other times he was feeling depressed.  On 3 October 1999 he reported as an emergency case, his depression having returned and Mr Lee feeling suicidal.  In psychotherapy he said that he could cope with work when he was well, but not when he was depressed.  This led to Mr Lee's admission to Hyson Green for ECT.

100.   Dr Tym in that report diagnosed Mr Lee as suffering from recurrent major depression.  He wrote that Mr Lee had an innate predisposition to the development of such an illness.  He said that Mr Lee had a personality development that was consequent on psychological stress associated with an unfortunate upbringing.  He did not concede that employment with Totalcare had contributed to the condition.  "Because he developed a mental illness he began to find his everyday work to be a source of psychological stress.  When not suffering from the mental illness he did not find work to be a source of abnormal psychological stress."  He saw the illness as first appearing when Mr Lee was 16 years of age, recurring at the age of 21 and again at the age 31.

101.   On 14 August 2002 Dr Tym provided a supplementary report (ex R3) taking account of the evidence from Mrs Lee, Mr Gillard, Mr C O'Neill and Mr Rodgers.  He said that the additional information did not alter his view about the relevance of Mr Lee's employment at Totalcare in the development of his recurrent major depressive disorder, or any aggravation, acceleration or recurrence of it.  He wrote, "From my clinical observations at the times he and/or his wife consulted with me it was, in my clinical judgment, the natural history of a frequently recurring Recurrent Major Depressive Disorder that intermittently interfered with his otherwise normal-for-him abilities to adequately cope with, and not be psychologically stressed by, the to-be-expected exigencies of his work with Totalcare.”  Dr Tym wrote that when Mr Lee's recurrent illness was present he found work to be psychologically stressful.  When he was free from his recurrent mental illness he did not find the work at Totalcare to be psychologically stressful.  From this Dr Tym concluded that there was no causal relationship between any aspect of his work at Totalcare and the natural course of his recurrent mental illness.  The doctor believed that Mr Lee's illness manifested itself in the work environment; that it impacted on his ability to perform normal work activities such that it was necessary for him to be away from normal work activities on sick leave at times.

102.   In oral evidence Dr Tym echoed Dr Saboisky in stating that abnormal brain chemistry produced Mr Lee’s mental disorder.  This had been caused possibly by psychological stressors earlier in his life.  These had been fairly extreme and continued throughout Mr Lee’s life.  The disorder had been consistently present, masked at times by medication.  Dr Tym did not see these later re-emergences as due to other psychological stressors.  

103.   Dr Tym addressed stressful aspects in Mr Lee’s youth.  His father had paid no interest in Mr Lee for the previous 18 years.  Mr Lee sometimes saw his father driving a truck but on these occasions his father never acknowledged him.

104.   Dr Tym saw these stressors as precipitating an additional co-existing categorical form of mental illness.  He said that the stressors continued and then there was, superadded, an organic illness of abnormal brain chemistry requiring medication and/or ECT to try to control it.

105.   In cross-examination Dr Tym expanded on forms of depressive illness.  The non-biologically based type is based on past stressors such as loss, fear or humiliation.  This type of depression can give rise to a superadded biological depression with similar symptoms and clinical presentation.  A psychiatrist who suspects the presence of biological depression treats the disease on the assumption that a biological form is present.  This is because, if it is present, the biological form is likely to be the more dangerous form.  If the depression is treated with medication appropriate to biological depression and the medication is successful, then it is fair to assume that biological depression was present, although there could alternatively be a placebo effect.  Dr Tym said that a clinician considers the long term, longitudinal effect of treatment and forms conclusions.  On that basis Dr Tym concluded that “whilst there was a background of long-standing historical stressors perhaps undermining his self-confidence and his difficulty with being assertive in the presence of other people, there was, nonetheless, a much more dangerous biological illness which required treatment, but that biological illness appeared to be one where … the effectiveness of the medication to control it wasn’t particularly long-standing, it would fade away after a time” (transcript of Dr Tym’s evidence, 23 January 2003, page 7).

106.   Dr Tym described the illness as endogenous in that it came from within.  It was due to abnormal chemical changes in the brain.  Those chemical changes came from exogenous factors such as everyday stressors.  The overwhelming factor seen in people with experiences similar to those of Mr Lee came from the feeling of worthlessness, inculcated in the person by his father’s behaviour towards him.  Where a patient has endogenous depression along with depression influenced by exogenous stressors the treatment is a combination of psychotherapy (relating to the stressors) and medication (relating to endogenous depression).

107.   Dr Tym had tried psychotherapy but other current issues tended repeatedly to crowd it out.  The presence of Mrs Lee at consultations was also referred to as apparently a barrier to complete psychotherapy.  Dr Tym identified the “current issues” as relating to medication, worries with his wife, worries with working activities and plans.  Dr Tym said that he felt that, because of the urgency of the biological nature of the illness, the current issues were taking over other aspects.  Dr Tym hoped matters would settle down so that in depth discussions about the past could commence.  In this evidence Dr Tym repeatedly identified childhood issues as the exogenous factors affecting Mr Lee.

108.   Mr M O’Neill took Dr Tym through clinical notes (ex TD1/T25/331) where reference was made to Mr Lee’s concerns about work.  Entries included concerns about interviews with contractors and having to do a tender when Mr Lee was uncertain he could do it.  However, on the same page there was considerable material about problems in Mr Lee’s relationship with his father and his father’s second wife.  Dr Tym thought that the arrival of the father’s second wife was the start of the father-son problems affecting Mr Lee.  Dr Tym was of the view that Mr Lee probably suffered from the long-term effect of rejection by one parent following the marital break up.  He thought this a factor in diminishing Mr Lee’s self-confidence and precipitating the unstable mood. 

109.   Dr Tym then explained that a sufferer of endogenous or biological depression can experience a spontaneous recovery, even after a number of years of suffering.  They can then suffer a relapse.  This can be stabilised using medication and ECT.  The tribunal picked up on this and asked the following question:

“We heard from close members of the family … that they were unaware of these earlier incidents … at the ages of I think 17 and 21 … they gave no evidence that he was taking anti depressant medication in the period – in the 10 years between the previous incident and the difficulties in 1998.  But he has... had no noticeable sort of depressive symptoms for 10 years [while] also on no medication is that period?"

Dr Tym saw that as possible and feasible (transcript of Dr Tym’s evidence, 23 January 2003, page 15). 

110.   There was some confusion as to whether Mr Lee’s thoughts about jumping from a roof stemmed from 11 August 1999 only, or whether he had had a similar experience at age 17 or 21.  Mr O’Neill was attempting to have Dr Tym address an alternative scenario as to the onset of the depressive illness.  This alternative scenario was that Mr Lee had experienced no depressive illness until 1998 and that was precipitated by work stressors, the resulting depressive illness then becoming endogenous through the subsequent development of a chemical imbalance in the brain.

111.   While Dr Tym was prepared to accept that he may have misunderstood, and there may have been only one rooftop incident, he remained initially adamant that Mr Lee had experienced depressive illness in his teens and twenties and that this, by Mr Lee’s own account, had been a serious illness.

112.   Later in cross-examination the position became muddier.  Mr O’Neill put to Dr Tym that he had seen Mr Lee generally when he was in worse stages of depression in 1999.  To this he added that Mr Lee may have attributed his depressive illness to his upbringing and seized on the alleged earlier incidents only in those darker periods.  Mr O’Neill suggested that this may have resulted in Dr Tym being presented with an unrealistically negative juvenile history.  This, it was suggested, might dispose of the earlier incidents seen by Dr Tym as leading eventually to the endogenous depression.  The upshot of this was a theory that Mr Lee’s depression in 1998-2000 was reactive to external stimuli from his family life and work.  Mr O’Neill referred to this as a reactive type of depression.  Asked whether he would “accept that it’s probable that other factors may have precipitated a reactive type” (to adopt the question as put by Mr O’Neill), Dr Tym replied in the affirmative. 

113.   The tribunal found this response curious.  Dr Tym had been quite confident in his assessment earlier and seemed rather too ready to accept that it was “probable” that an entirely different scenario may have applied.  The tribunal was bothered also as regards how this scenario could possibly apply given the preponderance of the medical evidence.  It was established from the psychiatric evidence that only endogenous depression is treatable by medication and ECT with satisfactory results, as had occurred in Mr Lee’s case. 

114.   Ms Walker in re-examination helped to resolve these problems (transcript of Dr Tym’s evidence, 23 January 2003, page 23).  She asked:

“If you had gotten the history wrong, and this is something that I think is being suggested to you, that there wasn't an unfortunate up-bringing at all, as you've summarised the situation with the father's attitude to Mr Lee, and there have been instances of severe, although short-lived depression at ages of 17 and 21 -- taking those factors away, would you in your assessment of Mr Lee thereby have concluded that his depression was caused by his work?"

Dr Tym answered:

“On the evidence from him, no.  I would have concluded that he'd got endogenous depression with no precipitating factors and that it was part of the natural incidence of depressive disorders in men, where there is consistent occurrence in men rising infrequently to the age of 40 and then subsequently falling.  But certainly there at the age of 20."

PARTIES’ SUBMISSIONS

applicant

115.   Mr M O’Neill’s main points on Mrs Lee’s behalf were as follows.  First, citing Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626, it was suggested that there were aspects of the particular work required of Mr Lee by Totalcare that caused, aggravated or accelerated his depressive illness.

116.   Second, Mr Lee’s immediate family were agreed that there were no perceptible psychiatric symptoms exhibited in Mr Lee’s conduct before 1998 and that he was preoccupied with work difficulties in 1998-1999.

117.   Third, Comcare’s rejection of Mr Lee’s claim and the prospect of his having to return to Totalcare contributed to a further deterioration in Mr Lee’s mental health which precipitated his death.

118.   Fourth, a number of matters intimately related to Totalcare were said to be stressors:

·The possibility of redeployment.

·The contraction in the size of Totalcare.

·The nature of Mr Lee’s contacts with ACT Housing tenants.

·Management of finance and budgets.

·The level of responsibility Mr Lee had in Totalcare at a relatively young age.

119.   Fifth, it was said that the evidence from Drs Saboisky and Tym was inconsistent in that Dr Tym placed greater stress on the importance of the reported earlier psychiatric incidents and the deceased’s upbringing.  At one stage Mr M O’Neill stated that “Dr Saboisky tends to suggest that in a diagnostic sense those incidents were of no relevance to him”.  With due respect to Mr O’Neill, this misunderstands Dr Saboisky’s point.  Dr Saboisky’s evidence was that he had not inquired closely into the youthful incidents.  He had noted them from Dr Tym’s material and was aware of them.  His emphasis in 1999 had been on treating Mr Lee rather than starting from scratch diagnosing a condition that was already diagnosed. 

120.   Sixth, Mr M O’Neill pressed that there had been no psychiatric incidents in Mr Lee’s youth, that he had developed reactive depression through working at Totalcare, that this had led to endogenous depression, and that the endogenous depression had been in remission when Mr Lee joined ACT Community Housing in November 1999, only to recur, as the experts said can occur with endogenous depression, in April 2000, months after he had left Totalcare.

121.   Mr M O’Neill referred to several documents in which it appeared accepted that it was his work that caused Mr Lee’s problems.  These were:

·Ex TD2/T28 where Totalcare’s OHS/Rehabilitation Manager wrote to Comcare on 29 November 1999 recording that Mr Lee had not responded to messages from his rehabilitation manager.

·Ex TD2/T31 where the rehabilitation manager on 6 January 2000 recounted Mr Lee’s history attributing his problems to “work-related anxiety and depression”..  The tribunal notes that the value of this document is undercut by its acceptance of Mr Lee’s statement that Dr Saboisky had provided him with a medical certificate clearing him to return to work in his new position, but not to return to Totalcare.  Dr Saboisky had not barred Mr Lee from returning to Totalcare (see ex TD2/T19).

·Ex TD2/T32 where Dr Ette on 20 February 2000 recounted Mr Lee’s history that he had been under stress at work. 

respondent

122.   Ms Walker identified the fundamental disagreement between the parties as relating to whether Mr Lee’s employment with Totalcare materially contributed to his illness.  She submitted there was no material contribution.  She also submitted that, even if there had been such a material contribution, it had ceased by the time Mr Lee died, some months after he left Totalcare.

123.   Ms Walker submitted that the expert evidence was consistent in identifying Mr Lee’s depression as endogenous depression, a constitutional condition. 

124.   Ms Walker submitted that Mr Lee had indeed experienced brief but intense psychological trauma as a teenager and a young man, as reported to Dr Tym and to Tuggeranong Mental Health Service on 8 December 1998 (ex TD1/T20/84), to Dr Saboisky on 11 October 1999[3] (ex TD1/T21/128), and at Calvary Hospital on 11 October 1999[4] (ex TD1/T24/286).  To these the tribunal would add Dr Ette’s remark on 20 February 2000 (ex TD2/T32) that Mr Lee “was depressed, but only for a week each time, at the age of 16 and again at the end (sic) of 21”.

[3] Dr Saboisky wrote: “Mick describes his depression as having been present during his teenage years.  He first previously contemplated suicide at approx 20 yo.  Cannot recall what the trigger was.”

[4] The clinician wrote: “PH [Past History] – 10 years ago – 3-4 months (not long after being out of apprenticeship).  Plumbing – despite being outstanding apprentice.”.

125.   Ms Walker suggested Mr Lee’s estrangement from his father as a factor impacting on Mr Lee. 

126.   Ms Walker submitted that Totalcare had not, for Mr Lee, been an unsupportive, very difficult workplace.  She referred to Mr Rodgers’ evidence, describing him as a witness of credit and clearly compassionate.  Ms Walker reminded the tribunal of the mechanisms in Totalcare available to assist Mr Lee to cope with his work.  Ms Walker noted Mr Gillard’s evidence that Mr Lee enjoyed his work and was not stressed by it until he became ill and could not cope with life and work. 

127.   Ms Walker referred to ex TD1/T20/95 where Mr Lee reported that he had always suppressed his emotions until the latest episodes of depression when he cried continuously.  She next referred to ex TD1/T23/237 where Canberra Hospital recorded that Mr Lee’s concentration was poor; he was distracted by “inner turmoil” and was inefficient at work.  He was procrastinating and compromising.  Thus, Ms Walker said, Mr Lee had been a high achiever, enjoyed his work, got satisfaction and some sense of self-esteem from it, but was unable to deal with life in general when he suffered from his illness. 

128.   Ms Walker submitted that Mr Lee’s family was unaware of his earlier psychological difficulties.  She said the evidence, from Mr Lee himself, was too strong for these events not to have occurred.  Apparently Mr Lee was able to cope on his own with his problems at that time.  Ms Walker suggested that Mr Lee was effective in masking his condition from his intimates.  All of Mrs Lee, Mr Gillard and Mr C O’Neill had been surprised by his turn for the worse in 1998-1999. 

129.   Returning to Mr Lee’s employment conditions, Ms Walker stated that dealing with ACT Housing tenants was nothing new for Mr Lee.  He had done that for years in his employment.  Mr Lee had nothing to fear in the nature of redundancy.  He was a valued employee whom Totalcare had sought to employ.  He was highly marketable, in any event, if he had left Totalcare. 

130.   Ms Walker then moved on to the expert evidence.  She pointed out that both doctors supported the diagnosis of endogenous depression.  Both were treating doctors and both were in agreement.  Both doctors agreed that the depression was endogenous because it responded to medication and only endogenous depression so responds.  Dr Tym, while accepting that stressors other than youth stressors may have contributed to Mr Lee’s condition such that reactive depression overlayed endogenous depression, confirmed, nevertheless, that Mr Lee’s work was not a stressor creating a reactive depression in Mr Lee’s case.  Ms Walker submitted, contrary to Mr M O’Neill, that there was at base no inconsistency between the views of Drs Tym and Saboisky. 

131.   Ms Walker referred then to the decided cases.  She cited the Semlitch case (above) but, contrary to Mr M O’Neill, drew from it that there was nothing more than a temporal connection between Mr Lee’s work for Totalcare and the onset or aggravation of any psychiatric condition. 

132.   The case of Hawkins v Comcare (2001) 34 AAR 383 saw Von Doussa J at pages 394-395 stating:

“45 In my opinion it follows from these authorities that it is not sufficient that the circumstance that aggravates or accelerates a disease merely arises in the course of the employment. That conclusion is also supported by the concluding words of s 29 of the 1971 Act, namely the words ‘whether or not the disease was contracted or the aggravation, acceleration or occurrence was suffered in the course of that employment’.. In my opinion these words indicate that for the employment to be a contributing factor, the circumstance said to constitute the contributing factor must have a relationship to the nature of the employment similar to that which was required under s 10 of the 1930 Act. The characteristic or feature of the employment said to constitute the contributing circumstance must involve a tendency to bring about the contraction of the disease or the aggravation, acceleration or occurrence of it. It is for this reason that Kitto J [in Semlitch] in explaining the concept of employment as a contributing factor added the qualification that an incident or state of affairs to which a worker is exposed in the performance of his duties must be one to which he would not otherwise have been exposed.

“46 In the present case the ingestion of smoke arising from Mr Hawkins own smoking would have occurred in any event. He was a persistent smoker. The fact that his employer did not prohibit him smoking during working hours is not sufficient, in my opinion, to render his employment a contributing factor to the aggravation or acceleration of his disease within the meaning of s 29 of the 1971 Act.”

133.   Ms Walker pointed out that neither doctor in the instant case was satisfied that there was anything in Mr Lee’s history that met Von Doussa J’s prescription. 

134.   Ms Walker referred to an analogy presented in Commonwealth v Beattie (1981) 35 ALR 369 at page 378 where the full Federal Court majority said:

“… when one considers the whole of his judgment, that there can be cases where there will be an exacerbation — and thus in our view an aggravation — of a previously existing injury by activity which increases or precipitates pain. Rubbing salt into a wound, the example taken by Kitto J, is but an instance of this.

“It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”

135.   The analogy was with a fractured leg.  If a person has a fractured leg and walks around on it at work it is going to hurt, however that does not mean that work has contributed to an aggravation of the condition.  It was put that “Mr Lee suffered from a serious major depression and that made him incapable of dealing with circumstances with his life, but that would have been the case whether it be at home or at work.  It is comparable to a broken leg.  He had the condition and took it to work.” 

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

136.   The tribunal finds that the deceased suffered from the disease of major depression.  The parties were at one in this respect (ex A1/3, ex R1/1).  Drs Saboisky (ex R4) and Tym (ex R3), both psychiatrists, diagnosed major depressive illness or major depressive disorder.  The tribunal finds that this was biological or endogenous depression for the reasons advanced by Drs Tym and Saboisky, notably that the disease was controllable (to at least some extent) by ECT and medication.  The tribunal noted Mr M O’Neill’s success in having Dr Tym regard as “probable” that a reactive depression attributable to Mr Lee’s work developed over the endogenous depression.  However, the tribunal saw this evidence as neutralised by Dr Tym’s answer when Ms Walker, in response to Mr O’Neill’s hypothesis, asked Dr Tym a question (see paragraphs 112-114 above).  This was whether, if the adolescent incidents were absent from Mr Lee’s history, Dr Tym would regard Mr Lee’s work as the cause of Mr Lee’s depression.  Dr Tym said “no” because of the evidence he had received from Mr Lee.

137.   The tribunal finds that Mr Lee’s major depression caused him to take his own life.  The Coroner found, amongst other things, that Mr Lee’s death was “due to a self inflicted hanging resulting from a recurring depressive mental illness” (ex TD1/T17).  The parties adopted this finding (ex A1/3, ex R1/18).

138. The tribunal finds, in accordance with s 17 of the Act, that the applicant and her children, Kayla Michelle Lee and Matthew Thomas Lee, were dependants of the deceased who were wholly dependent on him at the date of his death. The tribunal relies on Mrs Lee’s evidence (ex TD1/T6/12) and Ms Walker’s agreement to that proposition in her final submissions.

139. Mr Lee’s recurrent major depression was an ailment as defined in s 4(1) of the Act. It may have been a disease, and so an injury, attracting compensation under the Act, if it was an ailment or aggravation contributed to in a material degree by Mr Lee’s employment with Totalcare.

140.   As Ms Walker pointed out, the only issue of difference between the parties was whether Mr Lee’s Totalcare employment made a material contribution to the development or aggravation of Mr Lee’s depression.  The following findings address that matter.

141.   The tribunal finds that Mr Lee suffered depressive disease episodes in or about 1983 and 1988 when aged 16 and 21, respectively.  The tribunal refers to Ms Walker’s submissions at paragraphs 124, 125 and 127-128 above, and the evidence she quoted therein as the basis for this finding.  In short, the tribunal considers that the repeated evidence from Mr Lee himself, recited to a number of different health professionals, cannot be ignored in favour of the evidence from the family members that:

·They were unaware of his earlier psychiatric problems;

·That Mr Lee had not communicated with them about these problems; and

·That Mr Lee had not demonstrated the symptoms of earlier psychiatric problems to them.

142.   The tribunal noted and accepted the evidence that Mr Lee was able to mask his symptoms from his intimates.

143.   The tribunal finds, on the balance of probabilities, that Mr Lee’s employment did not aggravate his pre-existing major depression.  It finds, in accordance with the evidence from Drs Tym and Saboisky, that the workplace was simply one location where Mr Lee’s already present depression made it difficult for him to function.  In accordance with the decisions in Semlitch (above), Hawkins (above) and Beatty (above), this means that the disease and its effects would not attract compensation liability. 

144.   The tribunal notes, again, that the doctors relied on Mr Lee’s own statements to form the joint conclusions that (i) work did not cause the depression and accompanying anxiety, but that (ii) those conditions impacted on Mr Lee’s capacity to do his work.

145.   The tribunal found Mr Rodgers of Totalcare to be an honest witness who had a genuine liking and regard for Mr Lee.  His interest in assisting Mr Lee through a difficult period and the assistance he gave Mr Lee to transfer to ACT Community Housing suggest that Totalcare, through its senior management, did not leave Mr Lee unsupported, as was suggested in some evidence. 

146. Several aspects of the applicant’s case as presented by Mr M O’Neill warrant specific comment. It was argued that Comcare’s rejection of Mr Lee’s claim and the prospect of his having to return to Totalcare contributed to a deterioration in Mr Lee’s mental health and his resultant death. If this were accurate it is doubtful that it would suffice to establish a compensation claim under the Act. A worsening resulting from a denial of compensation would appear to be an aggravation suffered as a result of failure by the employee to obtain a benefit in connection with his employment and so not an injury according to the definition of “injury” in s 4(1) of the Act.

147.   The tribunal was not convinced by the argument stemming from Mr Lee’s possible reluctance to return to Totalcare.  From the tribunal’s point of view, save for one consideration, there was nothing requiring Mr Lee to return to Totalcare if he did not wish to do so.  The only counterbalancing consideration may have been the effect on Mr Lee’s superannuation situation if he separated entirely from Totalcare.  However, this was not stated by anyone as a consideration and, in any event, Mr Lee was only 32 at the time of his death and had ample time to accrue considerable superannuation benefits from whatever scheme he might enter.

148.   In the context of workers’ compensation legislation an employer must take an employee as he finds the employee, even if the employee is for some reason unduly prone to sustaining injury.  Workers’ compensation schemes are also based on liability arising without proof being necessary of fault on the part of the employer.  Thus, the arguments that conditions experienced by Mr Lee at Totalcare were a contributing cause of his fatal disease or its aggravation are worthy of some consideration.  However, given the evidence of conditions experienced by Mr Lee in Totalcare, the tribunal finds that it cannot accept that those conditions caused Mr Lee’s psychiatric condition in any sense.  As already indicated, the evidence from Drs Tym and Saboisky, relying on Mr Lee’s self-reporting, was against any notion of work as a cause.

149.   However, the tribunal noted the evidence regarding Totalcare’s relationship with Mr Lee.  Totalcare relieved him of any duties he felt were beyond him when he disclosed his illness.  Mr Rodgers, a most sympathetic and supportive manager, visited Mr Lee at home, taking him work Mr Lee felt he could do at home.  Mr Lee was in no danger of involuntary redundancy at Totalcare.  Mr Lee could tap into an established support structure to deal with disputes involving ACT housing tenants and Totalcare’s contractors. 

150.   It was suggested that Drs Tym and Saboisky gave contradictory evidence regarding the contribution of problems in his early years to Mr Lee’s psychiatric problems.  The tribunal did not see the evidence this way.  The only difference between Drs Tym and Saboisky was that Dr Tym, who saw Mr Lee over almost a year, took particular interest in Mr Lee’s adolescent history.  Dr Saboisky saw his role as to deal with Mr Lee’s current symptoms.  He inquired less into Mr Lee’s personal history but accepted Dr Tym’s analysis involving adolescent stressors.

151.   The tribunal was not greatly impressed by the documents referred to in paragraph 121 above by Mr M O’Neill.  The first document (ex TD2/T28) was short in length and said no more than Mr Lee had not responded to calls from his Totalcare rehabilitation manager.  As Mrs Lee said in her evidence, this was not surprising, as Mr Lee had found work at ACT Community Housing by that stage.  The other two documents rely on Mr Lee’s self-reporting and demonstrate no exercise of independent judgment. 

152.   The tribunal wishes to record its gratitude to Mrs Lee and the other family members who gave evidence.  The tribunal accepts totally that they gave honest evidence of the situation as they saw or understood it to be.  The tribunal does not underestimate the difficulties involved in giving sworn evidence in a tribunal proceeding and these witnesses were impressive.  However, as found above, it was the tribunal’s view that Mr Lee was able to mask his psychiatric symptoms for much of his life history.

153.   The tribunal also formed a view of Mr Lee as a talented, likeable young man with great drive and potential.  It is most unfortunate, even tragic, that a recurrent major depression intervened to retard Mr Lee in his work and family life and to lead to his suicide.  The tribunal extends its sincere sympathies to Mr Lee’s family.

CONCLUSION

154. These findings mean that Mr Lee’s original claim for compensation, continued by Mrs Lee on her husband’s behalf after his death, which was rejected by Comcare, has also been rejected by this tribunal. In the tribunal’s view Mr Lee’s work did not materially contribute to Mr Lee’s depression. There was, therefore, no liability for Comcare to pay Mr Lee compensation under s 14(1) of the Act.

155. Likewise, Mrs Lee can obtain compensation as a dependant under s 17 of the Act only if Mr Lee had suffered a compensable injury resulting in death. The tribunal has found that Mr Lee did not suffer from such a compensable injury.

156.   These findings and conclusions mean that the tribunal has decided that it agrees with Comcare’s decision-making.  Compensation is, therefore, not payable to Mrs Lee in her own right or as her husband’s representative.  Also, as Mrs Lee has not had the benefit of a favourable outcome, the respondent is not liable to pay her costs.

DECISION

157.   The tribunal affirms the decisions under review.  The respondent is not liable to pay costs.

I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M D Miller, AO, Member

Signed:         .......................................................................................
  D J Reed      Associate

Dates of hearing  22-23 January 2003
Date of decision  27 March 2003
Counsel for the applicant          Mr M O'Neill

Solicitor for the applicant          Tetlow Jansen and Doyle, Barristers and Solicitors

Counsel for the respondent      Ms L Walker
Solicitor for the respondent      Phillips Fox