MACDONALD and BHP BILLITON LTD
[2010] AATA 52
•27 January 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 52
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3834
GENERAL ADMINISTRATIVE DIVISION ) Re IAN MACDONALD Applicant
And
BHP BILLITON LTD
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date27 January 2010
PlaceSydney
Decision The decision under review is affirmed. ....................[Sgd]...................
Dr J D Campbell
Member
CATCHWORDS
SEAFARERS COMPENSATION – nature of psychiatric condition – multiple employers – nature and condition of employment – consequences of termination – assessment of entitlement to compensation – decision under review affirmed.
Seafarers Rehabilitation and Compensation Act 1992 ss 3, 9, 26, 28
Comcare v Sahu-Khan (2007) 156 FCR 536
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Wiegand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
27 January 2010 Dr J D Campbell, Member 1. Mr MacDonald is a 51 year old self-represented man, who suffers from a disabling condition. Mr MacDonald commenced his seafaring career in June 1989, when he attended the Launceston Maritime College. Mr MacDonald’s seafaring career ceased when BHP Billiton terminated his employment in a letter on 15 March 1999.
2. Mr MacDonald lodged a claim for compensation on 5 October 2007, citing occupational stress and injury to the mind. He claimed the injury occurred while he was on board various vessels undertaking general duties, as well as during rest periods. He further claimed his role change from an integrated rating (IR) to an engineering officer in 1993/1994 contributed to his injury in the following way:
After having conformed to the seaman IR socialisation processes and fitted into the required mould, including adaptation to thinks, don’t thinks, do’s and don’ts. I had extreme difficulty in reversing the way my mind worked to fit into the company oriented mould that was expected of me, after I changed from IR to marine engineer officer.
I felt like I was mentally jammed and still do.
3. In an accompanying statement dated 5 October 2007 (T5), Mr MacDonald detailed that he had indicated to Dr De Bruyn that his date of injury was 8 December 1992, as this was the date he first signed articles in his new role environment of marine engineering, after three years in the IR type role. Mr MacDonald further recorded that:
The difficulties I had and still have relating to conformity issues as part of the role change process certainly began after that date and intensified exponentially after January 1994 when I signed articles as a licensed engineer … It is only very recently that I have begun to realise the effects to me from the system change that I was a part of.
4. On 21 January 2008, the Respondent denied liability in relation to Mr MacDonald’s claim for compensation for a psychiatric injury arising out of or in the course of his employment with BHP Billiton between 1993 and 1999, pursuant to sections 3, 9, 26 and 28 of the Seafarers Rehabilitation and Compensation Act 1992 (the Act).
5. Mr MacDonald applied for review on 17 April 2008. On 19 June 2008, the Respondent affirmed its earlier determination of 21 January 2008. This is the reviewable decision before me.
issues
6. The relevant issues in this matter are:
(a)Does Mr MacDonald suffer from a psychiatric condition and, if so, what is the diagnostic nature of that psychiatric condition?
(b)Did Mr MacDonald’s psychiatric condition arise out of or in the course of his seafaring employment with BHP Billiton?
(c) Is Mr MacDonald entitled to be paid compensation pursuant to the Act?
further background material
7. Mr MacDonald detailed the following circumstances of his life and employment history:
· He had a relatively happy childhood, leaving school at age 16, having completed year 10.
· He completed a four year apprenticeship with NSW Railways in fitting and machining, during which he “upset the apple cart”, when he broke a demarcation rule and fitted a copper pipe in an engine refit which led to a stop work meeting.
· In 1978, he motorcycled to Rockhampton (Yeppoon) to work on prawn trawlers in summer months and other jobs in the winter months (bush fencing). This seasonal activity continued for about five years during which time he teamed up with a girl, worked a number of mining and oil jobs during the winter months as well as an unlicensed aircraft maintenance engineer, had two drink driving charges and was involved in a serious motor vehicle accident after which he was hospitalised with a fractured skull for 10 days. After receiving a pay out from the accident, he purchased a house at Emu Park with his girlfriend and found work in an automatic transmission shop but he found it unsatisfactory and got back into the aviation industry, during which time he recreationally jumped out of airplanes and was involved in hang-gliding.
· In 1986, he commenced a two year course for a Diploma in Electrical Engineering at the Capricornia Institute of Advanced Education. Mr MacDonald did not satisfactorily complete the second year of the course, having previously been advised by the teacher to change to the mechanical stream after the first year.
· In 1989, his relationship with the girl having ended, Mr MacDonald took some time off, went to Sydney, visited family in Newcastle. It was during this time that he developed an interest in the maritime industry, and began to make enquiries to gain entry.
· In June 1989, he commenced five months of training at the Maritime College at Launceston. He had no trouble with his capacity to pass all the courses and found them fairly basic. There was dissatisfaction over the timeliness of pay payments, he was elected to represent the new entrants, with subsequent approaches to management not well received. In particular, Mr MacDonald made mention of a letter to do with pay and a few minor issues that he sent to the manager which resulted in him being sacked on the last day of the course and being told that he would not be going to sea. Two weeks later he was given his certificate of rating by the Australian Maritime Safety Organisation (AMSO) and allocated to a ship, MV Alltrans.
· In late 1989, he joined MV Alltrans as a trainee IR and there arose an issue over “fronting the captain face-to-face and speaking to him on a man-to-man basis” – an issue for which he was “sort of rebuked” and which he had not been prepared in his pre-sea training, namely a class-based segregation and differential process. On the first trip, his work involved painting and chipping, while on the second trip he took it upon himself to take some broken stair rails from the engine room to the workshop and weld them up and put them back on – this caused a minor eruption, as it was not his work and it was far outside the norms of other workers. Mr MacDonald stated that the next day he was in the engine room when five of the engineers were pulling the piston out of the main engine, Mr MacDonald saw what had to be done, positioned himself appropriately, was told to hoist the piston up by the chief engineer and did so, which at that point one of the junior engineers tried to rip the control of the crane out of his hand – “I nearly backhanded him”. Mr MacDonald stated as none of the ships had been modified to the new system, he was viewed as an anomaly by those on board. Mr MacDonald also detailed an event when he accompanied a trainee engineer to replace some bearings on the end of a roller. He found it necessary to intervene, as he was astounded at the lack of mechanical expertise by some of the fellows, who were more interested in “asserting a status situation rather than focusing on the role of doing the work”. Mr MacDonald considered that the more you showed interest in somebody else’s territory or in somebody else’s work, the heavier the process was to stop that. During this period Mr MacDonald stated that “I adapted to unionism or to the trade union movement. I embraced the culture wholly.”
· In 1992, Mr MacDonald served on the Trans Tas Trader, a ship which had the reforms fully introduced, with the walls between officers and seamen removed. He completed his 36 weeks training as a provisional IR and went to work as a fully licensed seaman on a rig tender in the west. At this time, Mr MacDonald stated he still had a lot of drive and was not being satisfied in life as a seaman. He did not feel that the union side of things was going to provide him with the satisfaction needed in the workplace, although at that stage he remained unaware as to how much the unionist culture had been entrenched in him. As a consequence he approached the Australian Maritime Industries and made application for sponsorship for training as an engineer – an application which was accepted, after which he resigned his membership in the seaman’s union.
· In 1992, Mr MacDonald completed his watchkeepers certificate over a five month period at Newcastle TAFE.
· In 1993, Mr MacDonald commenced his 36 week period of employment as a trainee engineer on a Caltex tanker, Australia Ocean. Initially Mr MacDonald found that moving into the engineering role took up his entire thinking. After the first swing to Saudi Arabia, during which Mr MacDonald found the officers and seamen to be relatively amiable, and during which he threw himself into the work, which other fellows found difficult, the entire crew was changed. During the changeover, Mr MacDonald was advised by one of the outgoing crew that the new chief engineer was going to have him sacked. After two or three trips to the Caltex refinery in Westernport Bay, during which he observed that the captain and the chief engineer were much more hardline, an episode occurred in which he, the chief engineer and one other engineer went ashore by tender and socialised playing a few games of pool. The chief engineer and engineer returned on the 6pm tender vessel, with Mr MacDonald deciding he would return on the 9pm tender. The 9pm tender did not show. Mr MacDonald returned to the vessel at 7am, was called to the chief engineer’s cabin, where he was dismissed on the spot. Mr MacDonald said he returned to Sydney, sought assistance from the Institute of Engineers and the Australian Maritime Industry, with the former requesting that Caltex give him a second chance – this being denied as he had fundamentally broken the norms, while the latter secured an opportunity for Mr MacDonald to continue his training with BHP as an engineer. Mr MacDonald later indicated in other correspondence that the onset of occupational stress developed during his Caltex employment on Australia Ocean.
· In May 1993, his engineering training continued with BHP on the Iron Monarch. Mr MacDonald found that this was a ship in which “us” was the officers, and “them” were the seamen. During his time on the Iron Monarch, Mr MacDonald had some difficulties with the third engineer, difficulties in conforming to the process of officer/seamen relationships, difficulties with the chief engineer, who had very strong negative views to his presence, and when trying to resolve such issues with the chief engineer in his office, considers that such events which occurred in the office were of a nature suggestive of homosexual overtones. He remained on the ship for some 10 weeks.
· In the second half of 1993, he continued his engineering training on the Iron Flinders where he continued to feel socially isolated, and remained socially confused as he felt the priority of doing his job was far more important than maintaining any social differential. Mr MacDonald stated that he was paid off towards the end of 1993, having finished his 36 week trainee engineer period.
· On 27 December 1993, having achieved his goal to become an officer, he signed on as fourth engineer on the Iron Kembla. Mr MacDonald stated that at this stage, while he enjoyed the responsibility, he felt he was functioning on his own, having been alienated for reasons that he did not understand, and as a consequence he felt negative pressures arising from his non-conformance to the standard/norms which were expected of him. While on the Iron Kembla, Mr MacDonald stated that the chief engineer was a little bit upset with his continued fraternisation with the seamen and at the end of the swing told him he did not like his politics.
· In 1994, when on leave in Newcastle, having completed his swing on the Iron Kembla, Mr MacDonald described an incident in the Hunter Street Mall where two fellows signified by their body language that he should not take a copy of the “Guardian” as a left wing newspaper is not in the realm of norms for a BHP officer. This caused him much anxiety, which was not assisted by Mr MacDonald having a beer. “I really, by then I really didn’t know what was up and what was down. I was having a lot of trouble.”
· Again in mid 1994, just before he joined the Iron Kembla on the second swing, he was standing in Strzelecki Park when accosted by an older man who spoke in a dialect that was associated with the maritime industry and in a manner which was both assertive and almost aggressive as to whether he could do it again (a further swing on the Iron Kembla).
· Mr MacDonald detailed that in the second swing he was asked by the first engineer to cut his hair, which he did, but in retrospect he thought that he was supposed to engage in an act of homosexuality because a junior engineer who did complete the hair cutting task was promoted, and the first engineer made it difficult for him through the rest of the swing.
· On completion of the swing in July 1994, he returned to Emu Park/Yeppoon, where by the end of his leave he felt socially disorientated. During this period he met a politician who provided him with some material on the history behind the reforms in the maritime industry.
· He rejoined the Iron Kembla, threw himself into work, remained confused, social tension increased, broke his ankle and was paid off in Port Hedland.
· At the end of 1994, he flew back to Rockhampton, had a pin inserted in his ankle, and was visited in the hospital by the same politician. At this time he felt disoriented as regards his social/political orientation. During his recovery period he experienced a number of strange events, one involving two girls, another involving the politician, and a third involving two girls in Brisbane – all these events increasing his confusion, which led him to seek assistance from Mr Acutt, a psychologist. Mr MacDonald stated that he found it difficult to relate to Mr Acutt, as his capacity to articulate was very much hindered by anxiety and confusion. At this time Mr MacDonald considered that his telephone was bugged, as he heard two fellows two days later when they walked past him project their voices in his direction and repeat aspects of his earlier telephone call. A similar event occurred shortly after, this time with two girls in an ANZ Bank discussing aspects of his proposed travel to America – which he had earlier made in a telephone call with a travel agent.
· Further, during this period of recuperation, he started receiving telephone calls about various materials for sale, but ended up talking about riding a Ducati. Mr MacDonald considered that the telephone calls were referring to things that were discreet to him. He spoke with the police at Yeppoon about telephone interceptions.
· In late 1995, Mr MacDonald joined the Iron Chieftain as the third engineer, there having been in Mr MacDonald’s understanding a further reform whereby the captain and the chief engineer were essentially equals. At the time Mr MacDonald stated that he enjoyed the challenge of his work, but his approach to seamen was “rocking the boat”, with reaction from fellow officers that he was breaking “the status culture”. Mr MacDonald felt that he was having difficulty fitting in as an officer, and did not feel accepted by the other officers.
· During his swing leave, Mr MacDonald noted that the situation on the home front deteriorated as the feminist situation began to escalate, with affirmative action causing tensions for him.
· In mid 1996, he sailed on the Iron Spencer, where he found he was in “all sorts of hot water”, that he remained socially isolated, and there was general confusion about the change program.
· He returned to Emu Park for leave, where he got into fights with people who were “associated with the forces of modernism”, one such fight occurred on the night before he was due to join the Iron Whyalla, when he dropped one fellow a couple of times in the backyard, before two others entered, who he thought may have been company engineers.
· On joining the Iron Whyalla the next day, another engineer remarked that “you broke his jaw.” During the swing in late 1996, the second engineer confronted him and said “you have to conform.” As the vessel was sailing to Japan, Mr MacDonald had some thoughts about having oral sex with a red-headed girl – a thought which almost materialised when he was accosted by a red-haired Japanese girl on a train in Japan. On the trip home, Mr MacDonald stated that he assisted the second engineer by showing him how to repair a pneumatic actuator unit, and when the ship returned to Australia, he stayed in a hotel to assist in the repair of other units.
· On returning home in what he believed to be mid 1997, he received a telephone call requesting him to go to Melbourne and meet with management. At this meeting some four or five days later, complaints concerning his behaviour were raised with him – namely that he was not conforming and not performing, that he was argumentative and that he had not completed an appraisal form. Mr MacDonald stated that he was dumbfounded and unable to comment because of his confusion.
· Mr MacDonald also noted that when he was on leave between his first and second swings on the Iron Whyalla, he travelled to the United states, where again a series of bizarre events occurred when travelling to Santa Monica and during his stay there.
· On his return, when joining the Iron Whyalla, he encountered an attractive female in an aft alleyway, and later, having changed, he was introduced to her, she being the wife of the second engineer. Mr MacDonald observed that there were tensions between him and the second engineer for the whole of the trip to Port Hedland, with he believing the second engineer to be not very skilled. Mr MacDonald said he was accused of not conforming and he did not understand what he was doing wrong, and this led to him becoming more socially withdrawn. At Port Hedland, having been for a walk, he noted alarms were going off in the engine room one after another for half an hour. The telephone rang with the wife of the second engineer asking to talk to her husband – a request Mr MacDonald was unable to comply with as her husband was in the engine room. Mr MacDonald stated that he proceeded to the engine room, pointed out the solution to the impasse in the engine room to the chief engineer, with the latter and the second engineer remaining to fix the problems and Mr MacDonald to retire. Mr MacDonald said he returned to the officers’ saloon when the phone rang and again it was the wife of the second engineer who, in Mr MacDonald’s view, became hysterical when he informed her that the second engineer was still busy.
· On the return voyage to Port Kembla, Mr MacDonald stated that he was approached by the first engineer who said to him “You have troubles with the second engineer”, in that the latter was accusing him of having abused his wife. The matter was referred to the chief engineer who asked each party to apologise to the other. Mr MacDonald said he refused to apologise and the matter was referred to the captain, who on hearing the issues regarding the second engineer’s wife said to Mr MacDonald that he would be going to Melbourne on their return to Newcastle.
· On return to port, Mr MacDonald stated he was flown to Melbourne, that he was accompanied by a member of the AIMPE to the meeting with various BHP maritime managers, and that after a brief discussion, where attempts to raise issues of homosexual behaviour were ignored, Mr MacDonald was given a final warning, a tape concerning interpersonal relationships and the name of a person to discuss such issues with, an instruction to conform and to complete his officer appraisal forms. Mr MacDonald thought the meeting lasted about five minutes, before he was asked to leave the building and was then escorted from the building and flew back to Rockhampton to continue his leave.
· Mr MacDonald stated he next served on the Iron Spencer, where he completed the officer appraisal form only to have it returned because it made mention of difficulties with social interaction – another form was supplied, with Mr MacDonald stating that he was instructed on how to fill it in.
· After further leave, Mr MacDonald joined the Iron Chieftain, at which time his state of disorientation was pretty bad. The chief engineer accused him of letting “them” get too close. Tension remained for the remaining eight weeks of its swing.
· Mr MacDonald stated that after leave, he joined Seacap where the tensions from the other officers were immediately obvious, with him being viewed as a major problem.
· After his swing on the Seacap and leave into early 1999, he wrote a letter to management inquiring as to his next ship. He received a letter in reply saying he had been dismissed. After a period he contacted AIMPE in Brisbane to seek assistance to conduct an unfair dismissal case. A case was eventually heard before the Industrial Commission with Mr MacDonald failing in his case.
· From 1999 through to late 2001, Mr MacDonald sought assistance from psychologists and psychiatrists to help deal with the issues that he had confronting him. In 2002, and for a period of two years, he conducted research at the University of Central Queensland into organisational and behavioural psychology to try and understand what he had been involved in. Since that time he has continued seeking assistance from psychologists/psychiatrists to help him better understand the issues that confront him.
the medical evidence
8. In August 1992, Dr Arnold referred Mr MacDonald to the Hunter Area Mental Health Service (Shortland Clinic). Notes made at that clinic on 4 August 1992 detail Mr MacDonald as stating “there are skeletons in the family closet, and in the past has had self esteem problems.” It is noted that Mr MacDonald presented as a tentative fellow, somewhat lonely in life and unsure about close relationships (exhibit R4).
9. On 16 February 1995, Mr MacDonald first attended upon Mr Acutt, in response to his request for assistance under the InterLock Employee Assistance Program. Mr Acutt detailed his history since joining the service in Launceston in 1989 and concluded that Mr MacDonald has a personality disorder, which has resulted in his ostracism and hence his growing paranoid delusions. The notes indicate that Mr Acutt saw him again on 23 March 1995 and 22 February 1996 and both reports indicate ongoing issues (exhibit A2).
10. On 24 July 2003, Dr Bailey, a locum psychiatrist with the Rockhampton District Mental Health Service, wrote to Dr Donohue confirming the latter’s opinion that Mr MacDonald has a paranoid psychosis, being either a delusional disorder or a functional psychosis (schizophrenia). Dr Bailey attached an assessment protocol completed by a clinical nurse consultant. In this protocol it is noted that he has a 19 year history of paranoid delusional beliefs stemming from a complex delusional system involving his beliefs about changes in our culture and politics. On examination, the following comments were made in relation to “thought”:
Form: He was over inclusive both in his verbal and written communications and also demonstrated tangentiallity, blocking and derailment.
Content:This included persecutory ideas, thought insertion and projection, sexual references in relation to transsexuals and homosexuals and ideas about social and political manipulation with himself as the center (sic) of some social engineering conspiracy.
In relation to “perceptual disturbance” the assessment noted:
He relates a complex delusional system which includes thought insertion and projection, ideas of reference from the media and the ability to determine others sexuality by their appearance. He has a very entrenched belief that, in 1994 when he became a marine engineer and entered the management level in the maritime marine, members of “the Left” pressured him to break down social, cultural and sexual barriers in society. (exhibit R7)
11. In a discharge summary from the same mental health service dated 17 September 2003, it was noted that Mr MacDonald became increasingly agitated when challenged on his delusions and had deteriorated despite outpatient review. He had been admitted as an involuntary patient for about a fortnight and was treated with medication (exhibit R7).
12. In a further summary assessment dated 21 June 2006 (exhibit R7), Dr Rofe from the same mental health service concluded that counselling will be of little benefit as his chronic paranoid schizophrenia, along with his compulsive and narcissistic traits, makes it too difficult.
mr robert kerr – psychologist
13. In a report dated 2 October 2007 (T4), Mr Kerr noted Mr MacDonald’s presentation as complex and that his preferred method of dealing with issues is to rationalise them by developing a language that allows him to understand and cope with a situation that first developed some years ago and is ongoing. Mr Kerr continued:
Mr MacDonald is thoroughly absorbed by coping with and trying to control the emotional and cognitive turmoil that is a constant distraction to him and one, which he often feels unable to control to the extent that he is overwhelmed. His intense focus on the matter and his hyperarousal contribute to his often being unable to distinguish whether everyday occurrences are coincidences or events associated with his involvement with the marine industry.
dr kathryn lovric – consultant psychiatrist
14. In a report dated 20 December 2007 (T15), Dr Lovric detailed Mr MacDonald’s clinical history. Dr Lovric noted that he gave slow and detailed accounts with recurring paranoid themes, and she noticed disorder in the form and structure of his sentences and evidence of disorganised thinking. He expressed ideas consistent with paranoid delusions and ideas of reference and probable auditory hallucinations.
15. Dr Lovric considered that the most likely diagnosis is schizophrenia. She said it is usually constitutional in nature, and can be unmasked by severe and significant stress, however, the reported stress in this matter does not appear to be of that calibre.
16. I also note that Mr MacDonald has consulted Dr Vickery, a consultant psychiatrist, in Newcastle on five or six occasions, with Mr MacDonald stating that when he explained his “socialisation concepts”, Dr Vickery “just looked at me dumbly and or suspiciously.” Further I observe that Mr MacDonald also consulted Dr Parker, a psychiatrist, on a few occasions, but again he felt that she did not take some of his statements seriously.
dr geoffrey robinson – consultant psychiatrist
17. In a report dated 19 May 2008 (exhibit A6), Dr Robinson, after noting that he had seen Mr MacDonald on six occasions since February 2008, concluded that his working diagnosis for Mr MacDonald’s psychiatric condition is paranoid personality disorder.
dr jim jupp – clinical psychologist
18. In a letter to Dr Martin dated 6 April 2009 (exhibit A3), Dr Jupp concluded from Mr MacDonald’s history that an adjustment disorder (mixed anxiety/depression) developed slowly over the period 1993-1999, associated with stressors arising from his change in role from seaman to engineering officer. Dr Jupp observed that Mr MacDonald experienced an episode of decompensation with both homophobic (encounters he had as a trainee engineering officer) and political delusional elements (perceptions that he was part of a vanguard trained to break down the social boundaries between crew and officers). Dr Jupp considered him to be depressed and with noticeable phobic anxiety. This, he considered, correlated with very strong interpersonal sensitivity, relatively mild paranoid ideation exhibited in schizoid beliefs.
19. In a further progress letter to Dr Martin dated 12 June 2009 (exhibit A5), Dr Jupp observed that Mr MacDonald “had only one certain belief about himself in making the transition from seaman to engineer. Specifically that he was mechanically skilled. He was sure that this would be recognised by others despite their potential antagonism in other respects. Consequently he was devastated by the part of the reason given for his dismissal which referred to his low performance.”
20. In oral evidence, Dr Jupp agreed that if an individual wants to be accepted by a group, it is certainly much easier for that to occur if the individual complies with the norms of the group, however those norms may be communicated. Dr Jupp acknowledged it to be unequivocally true that performance of ascribed tasks is a factor leading to group formations. Dr Jupp also acknowledged that the extent to which one is able to adapt to all the group’s norms would be determined by factors within the individual, and that it may have been a bit more difficult for Mr MacDonald during his period as a seaman to fit in because of his strong mechanical background and his inability to undertake work for which he had been trained. Dr Jupp also considered, as a result of his discussions with Mr MacDonald, that Mr MacDonald held a perception that there was a vast differential between officers and seamen, and that he also had a belief at some point in his career as a seaman that the system had changed. In Dr Jupp’s opinion it was Mr MacDonald’s perceptions and beliefs about the system that resulted in him being in conflict for a very substantial period of time, and in such periods, his perception was that he was not supported. Dr Jupp was also specific in stating that the first episode of collapse (decompensation) by Mr MacDonald occurred while he was a seaman.
dr greg steele – consultant psychiatrist
21. In a report dated 14 October 2008 (exhibit A1), Dr Steele detailed Mr MacDonald’s clinical history as related to him. Dr Steele considered Mr MacDonald’s thought processes to be normal in flow and form and appropriate and congruent in content and apart from his belief system concerning political re-socialisation and the union industry conflict, there were no other abnormalities elicited.
22. Dr Steele considered Mr MacDonald to be suffering from a psychotic illness, most probably a delusional disorder of the persecutory type. Dr Steele noted that apart from the impact of the delusions and their ramifications, Mr MacDonald’s functioning has not been markedly impaired and his behaviour is not obviously odd or bizarre, until one gets to know him well or until he reveals his ideational content. Dr Steele also included an alternative diagnosis of chronic paranoid schizophrenia, but in his view, the minimal presence of perceptual anomalies and the general preservation of his personality would count against this.
23. Dr Steele considered that in Mr MacDonald’s case, his transition from socialist inspired unionist to officer and what he perceived as the disgruntled attitude of both classes of seafarers towards him, given the close confines of the ship, would have been a major stressful event. Dr Steele considered that, while his working situation may not have been the cause of a pre-existing predisposition, the situation he was in and the attitude he brought to the situation may have acted as a trigger for whatever neurophysiological cascade of events needed to occur to result in eventual psychosis. Dr Steele also noted that the maintenance of his psychotic illness since 1999 is due to the inexorable process of the illness, rather than the actions of any particular individual or group.
24. In oral evidence, Dr Steele considered that, when Mr MacDonald was called to Melbourne in 1996 because of interpersonal and vocational difficulties, it was the advanced nature of the psychosis that contributed to his difficulties, with any role change issue being a historical event. In assessing onset, Dr Steele considered the events in the Hunter Street Mall in 1994 more significant than the summary dismissal in 1993, and regarded it as the first of Mr MacDonald’s psychotic episodes, although the dismissal event in 1993 was of a greater significance than he had previously believed when assessing the history given to him by Mr MacDonald, with this event possibly being one of the triggers amongst many. Dr Steele also considered that Mr MacDonald would refract all his experiences through the lens of his particular ideational peculiarities. Dr Steele considered that Mr MacDonald’s dismissal in 1999 would have probably aggravated symptoms, but played no part in maintaining such symptomatology. Dr Steele also stated that Mr MacDonald’s three year period as a seaman may have had some effect on him, but he had no evidence to say one way or the other that it was the originating event.
dr robert haik – consultant psychiatrist
25. In a report dated 4 November 2008 (exhibit R2), Dr Haik, having detailed a clinical history, noted that Mr MacDonald demonstrated the presence of thought disorder:
· Often his thinking/speech revealed loosening of associations and was at times tangential despite correct grammatical form.
· He used complicated expressions which were difficult to follow.
· He exhibited ideas of reference such as his belief that a man in the supermarket reacted with disdain because he had failed to acquiesce to what he believed was an unknown woman’s “availability”.
26. Dr Haik considered the appropriate diagnosis for Mr MacDonald’s psychiatric condition is paranoid schizophrenia. He considered the illness was more likely to have emerged unprovoked as opposed to resulting from work stress. Dr Haik noted that a key feature of schizophrenia in those who have the condition is a difficulty relating to others. Most frequently they are aloof, socially isolated, and feel alienated by and suspicious of others. Dr Haik considered it probable that the expression of the developing schizophrenia led to his out of character behaviour and subsequent dismissal rather than the conflict of the cultural interface. Dr Haik also noted the existence of supporting evidence for Mr MacDonald’s problem being driven by schizophrenia, namely that his symptomatology has continued unabated since leaving the maritime industry. It is the continuance of his psychotic condition in the absence of a stressful workplace that makes it most unlikely that it was precipitated by his workplace stress.
27. In oral evidence, Dr Haik confirmed his view that his diagnosis remained paranoid schizophrenia. He said it was a slow developing condition probably unassociated with Mr MacDonald’s maritime activities in terms of causation, but was unable to exclude maritime workplace stress as possibly contributing to the illness.
consideration and findings
28. In this matter, much written and oral material has been presented by Mr MacDonald. In so doing he has repeatedly detailed his story as he perceives it to have occurred, and defined his beliefs according to his interpretation of what occurred over his period of maritime service as a seaman and an officer and his life experiences since his termination from the maritime industry in March 1999. I observe that his often repeated story is consistent in defining these particular beliefs, but at times it is evident that there is an absence of consistency in defining particulars relating to times and events. For example, the year and reason for attending the Shortland Clinic in August 1992, the difficulty in remembering names of particular engineering officers and his apparent difficulties in addressing and/or redressing issues that occurred in the maritime workplace. As far as any inconsistencies are concerned, I accept that such are inherent consequences of psychiatric disease.
29. I am mindful that Mr MacDonald has lodged his claim with BHP Billiton as the nominated employer and respondent in this matter. I note that Mr MacDonald was employed as engineering officer with BHP Billiton from 27 December 1993 until his dismissal on 15 March 1999. I observe that section 3 of the Act commenced on 24 December 1992 and other relevant sections on 24 June 1993. I note that Mr MacDonald’s maritime service and experiences commenced in June 1989, and that between that date and his employment with BHP Billiton, other employers existed, including Australian Maritime Industry Training Authority and Caltex. In all likelihood, any claim against such employers would be addressed within the context of the Seamen’s Compensation Act 1911 (repealed).
30. I have been particular in detailing Mr MacDonald’s relevant clinical, social and work history and his beliefs formed and held as a consequence of that history. I have no doubt that he holds such beliefs, with the verbalisation and documentation of such beliefs a consequence of his interpretation of all the circumstances that he experienced during his maritime service. Further, I am satisfied that Mr MacDonald evolved a better understanding, a reinforcement of such beliefs, and an increased ability to express such beliefs both orally and in writing, as a consequence of his two years of research into organisational and behavioural psychology and his increasing interaction with psychologists over time.
31. In reviewing his work history with the maritime industry, I observe that there was a particular issue towards the end of his period of training at Launceston which appears to have arisen as a consequence of a letter written by Mr MacDonald to a supervisor concerning pay and other issues at the College. I note that during his three years of seaman duty, Mr MacDonald was dissatisfied about his inability to use his mechanical skills in his everyday duties and that as a consequence, it was necessary for him to embrace the union movement. I observe that as a trainee engineer serving on the Caltex ship, Australia Ocean, on the second or third trip to Westernport Bay, Mr MacDonald, having been forewarned by one of the outgoing crew that the chief engineer was going to have him sacked, was dismissed for failing to return to duty at the appropriate time. Thereafter I note the circumstances of Mr MacDonald’s service as an engineer as described earlier in this decision.
32. In addressing the nature of Mr MacDonald’s psychiatric condition, I have detailed the relevant psychological and psychiatric evidence before me. I am satisfied on the balance of probabilities that Mr MacDonald suffers from a psychiatric illness and that the probable diagnosis is chronic paranoid schizophrenia. In so finding, I rely upon the opinions of the psychiatrists and clinical nurse consultant from Rockhampton Mental Health Service, although I would need further evidence before I could accept that Mr MacDonald had a 19 year history of mental health problems at the time of presentation. Further, I rely upon the opinions of Drs Lovric and Haik, who considered Mr MacDonald to be demonstrating thought disorder as well as experiencing auditory hallucinations. I note that Dr Steele considered Mr MacDonald as suffering from a related psychotic illness, namely delusional disorder. While in oral evidence he did agree to disordered thought content, he considered the nature of the auditory experiences and the relative intactness of personality to be more consistent with his diagnosis.
33. I acknowledge that Dr Jupp considered adjustment disorder with anxiety and depressed mood to be the appropriate diagnosis. In making such a diagnosis, Dr Jupp noted homophobic and political delusional elements, and mild paranoid ideation exhibited in schizoid beliefs. Further, Dr Jupp considered the disorder to have evolved over the period of his maritime service with his first episode of decompensation occurring as a seaman. In rejecting such a diagnosis, I note the opinion of the other psychiatrists that I have nominated, as well as Dr Jupp’s insistence that medication is required to deal with his continuing symptoms as well as counselling, this being more in line with an underlying psychotic disorder, as all the psychiatrists suggest the same therapy.
34. I have already noted that Mr MacDonald holds particular beliefs concerning both causation and his understanding of particular experiences that he was exposed to during his period of maritime service and continuing thereafter. Such beliefs are keenly held and include causation of his condition arising from the difficulties he experienced in conforming to the cultural norms expected at the officer/seaman interface as a consequence of moving from a unionised seaman to an engineering officer. Mr MacDonald also firmly believes that the many incidents that he has detailed did happen as he described, with his explanations for such happenings better articulated in more definitive language after his two year period of research into organisational and behavioural psychology in 2001 to 2003. I accept that he holds such beliefs and that because of these beliefs, he further believes that he is better able to portray his life experiences. I accept that such a belief system is an integral component of his psychiatric condition, and is very much a symptom of the nominated psychiatric disease which has been diagnosed.
35. As Mr MacDonald’s chronic psychiatric condition is ongoing, and requires treatment by way of medication and counselling (Drs Steele, Lovric, Haik and Jupp), such an ongoing belief may not necessarily be a valid representation of the circumstances that he tried to explain by virtue of those held beliefs. In such circumstances, I would seek the availability of other corroborative material before accepting such beliefs as being of significant evidentiary weight or probative value.
36. I note that different expert opinions have been proffered concerning the time at which Mr MacDonald’s condition became clinically evident. Mindful that such opinions depend on the extent and content of the clinical history made available for appraisal, I observe that Dr Jupp concluded that Mr MacDonald’s psychiatric difficulties commenced during his years as a seaman, with his condition evolving over subsequent years as a trainee engineer officer and as an engineering officer. Dr Steele considered the disease process became florid in 1994 at the time of the Hunter Street Mall incident in Newcastle, while Dr Haik considered the condition arose towards the latter part of his maritime service as an officer.
37. I note that the psychiatric condition, schizophrenia, is said to be a constitutional disorder, often genetically determined. I observe from the expert opinions rendered that the clinical expression of this condition may arise unprovoked by environmental events or alternatively in response to a triggering event or issue. I further note that in the evolving course of the condition, a major difficulty experienced by the affected individual is his ability to relate to others. This is evidenced by the affected individual being aloof, socially isolated and feeling alienated and suspicious of others. In such situations, as expressed by Dr Haik:
It is probable that it was the expression of the developing schizophrenia that led to his out of character behaviour and subsequent dismissal rather than the conflict of the cultural interface, an entity to which he had been long exposed before his argumentativeness and non-conformity was dealt with.
38. The opinion that the psychiatric condition, no matter what diagnostic label is attached by the clinicians in this matter, engendered the beliefs held, which in time created the interpersonal conflict, as espoused by Dr Haik, is central to the opinions of other clinicians, namely:
Mr Acutt – his personality disorder has resulted in his ostracism and hence his growing paranoid delusions.
Dr Jupp – his perceptions and beliefs about the system resulted in him being in conflict for a very substantial period of time.
Dr Steele – the maintenance of the psychotic illness since 1999 is due to the inexorable process of the illness.
I note that similar inferences may be drawn from the reports of Rockhampton Mental Health Service and Dr Lovric.
39. While the above analysis may explain the cause and course of Mr MacDonald’s psychiatric condition, once the disease process has announced its presence, the issue remaining for determination is whether the pre-existing underlying constitutional condition arose to clinical expression unprovoked, or whether Mr MacDonald’s occupational stress born of his inability to conform with the expected cultural norms triggered the clinical onset of his condition. While earlier I detailed that there is much material to suggest that Mr MacDonald’s psychiatric condition arose, unprovoked, to clinical expression, the issue to be determined is whether Mr MacDonald suffered an ailment or an aggravation that was contributed to in a material degree by his employment. If so, this would constitute an injury pursuant to section 3 of the Act, provided it was not a result of reasonable disciplinary action taken against him.
40. In addressing the issue of whether Mr MacDonald’s psychiatric condition was contributed to in a material degree by his employment, I observe that Mr MacDonald holds particular beliefs and perceptions as to why he experienced stress in the workplace. I accept that he holds such beliefs and perceptions. I further understand that there is no requirement at law that such perceptions pass a qualitative test based on an objective measure of reasonableness. While Mr MacDonald has described a number of specific incidents during his maritime service, his general belief was that stress arose intrinsically as a consequence of conforming to norms determined by and around the cultural interface dictated by the workplace. I earlier considered and concluded that stress arose as a consequence of Mr MacDonald’s disease process interacting with people and events in the workplace, and not the nature of the work or events occurring in the workplace. In the circumstances, my initial impression is that it is not open to me to conclude that either the nature of the work or the events in the workplace contributed, in a material degree, to Mr MacDonald’s psychiatric condition (Wiegand and Comcare (2002) 72 ALD 795 considered and followed – the perceptions held do not relate to the nominated state of affairs found to exist. It was the disease process and not the nature of his duties in the workplace that created the conflict and resultant stress).
41. In circumstances that I am in error in my analysis in the previous paragraphs, I move to consider whether workplace stress, as defined by Mr MacDonald in his beliefs and perceptions about his maritime service career, has made a material contribution either to the condition or the aggravation of his psychiatric condition. I note that the causal connection must be established on the probabilities and not left in the area of possibility or conjecture (Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 – considered and followed).
42. A careful analysis of the psychiatric opinions concerning the issue of contribution rendered in this matter conclude that Mr MacDonald’s workplace experiences and resultant stress may have or is possible (Dr Steele), stress was not of the calibre (Dr Lovric), workplace stress may have been a trigger for whatever neurophysiological cascade of events needed to occur to result in the eventual psychosis (Dr Steele) and it was more likely to have emerged unprovoked as opposed to resulting from work stress (Dr Haik). On the basis of such opinions, I conclude that it is possible that stress may have contributed to the clinical course of his psychiatric disease by way of being an aggravating factor, however, this does not assist Mr MacDonald in achieving a positive outcome in relation to his claim, as the causal connection must be established on the probability of contribution.
43. Further, I am mindful that the word “material” has been further defined by Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 (considered and followed). In the analysis of the material before me I am unable to nominate material which would permit me to find that the workplace stress (as opposed to stress arising as a consequence of the disease process and the effects of such, both in the workplace and elsewhere) was either significant or considerable, being adjectives employed in the interpretation of the word “material”.
44. In such circumstances, I find that Mr MacDonald’s psychiatric condition was an ailment and that, on the balance of probabilities, it was not contributed to in a material degree by his employment for the reasons nominated in the previous paragraphs.
45. The final issue that remains is whether Mr MacDonald’s psychiatric condition was aggravated by his dismissal from employment with BHP Billiton in March 1999. I note that Mr MacDonald was the subject of three disciplinary interviews by his employer on 8 July 1996, 15 February 1998 and 27 October 1998. Minutes recording all the meetings are included within exhibit R3. At the first meeting, the issues raised with Mr MacDonald were that he had been on compensation on a number of occasions, he had been reluctant to do a performance review, and his failure to answer an alarm. It is noted that Mr MacDonald raised the issue of having encountered “difficulties” in his transition from a rating to an engineer, which he thought arose out of a close relationship with the crew. It is noted that Mr MacDonald was advised of what the company expected of him, as the type of meeting he was having was not common, to which Mr MacDonald indicated that he understood.
46. In October 1997, Mr MacDonald was advised that he had not completed the required number of performance reviews and was not eligible to have his salary reviewed.
47. On 10 February 1998, an incident on board the Iron Spencer between the second engineer and Mr MacDonald was brought to the company’s attention. A record of a meeting held in Melbourne on 15 February 1998 at which Mr MacDonald together with an AIMPE representative attended, discloses that Mr MacDonald was advised that there was a need for him to make a more concerted effort to understand and accommodate other people around him in the workplace. It is noted that Mr MacDonald was given the “Distance Learning Package – Dealing with Difficult People”. Mr MacDonald was also advised that any further incident would lead to consideration of dismissal from the company – with Mr MacDonald being advised that it was to be treated as a “formal written warning”.
48. On 6 November 1998, following a further meeting in Melbourne on 27 October 1998, Mr MacDonald was again advised about the company’s concerns regarding his ability to work safely and his performance, together with his failure to participate in the Officer Review and Development Program and his ability to work in harmony with other seagoing personnel. The letter to Mr MacDonald details what was said and what was expected of him.
49. Following a further unsatisfactory performance review dated 19 December 1998 and Mr MacDonald’s failure to complete the “Dealing with Interpersonal Conflict” distance learning package as required, Mr MacDonald was dismissed by way of a letter dated 15 March 1999.
50. After his dismissal, Mr MacDonald, with the assistance of AIMPE representation, had the dismissal conciliated before a commissioner of the Australian Industrial Relations Commission. The conciliation was unsuccessful and on assessment of the merits, Mr MacDonald was left with the option to lodge a notice of election. Mr MacDonald advised that he was unsuccessful in this matter.
51. Some of the clinical material suggests that the dismissal on 15 March 1999 was the final indignity for Mr MacDonald (Dr Jupp) and probably aggravated symptoms but played no part in maintaining such symptomatology (Dr Steele). From such a statement, I conclude that Dr Steele is referring to an exacerbation of symptoms, rather than an aggravation of the psychiatric condition. Further I observe that other psychiatric opinion suggests that this is but a further episode in a continuum of symptomatology consistent with his psychiatric disorder. On the evidence before me I am unable to find that Mr MacDonald suffered an aggravation of his psychiatric condition, let alone an aggravation that was materially contributed by his employment.
52. Finally, and for the sake of completeness, I did raise at the hearing the issue of the respondent employer failing to become aware of Mr MacDonald’s psychiatric condition over a six year period, despite his unsatisfactory performance, a number of complaints about his behaviour and three disciplinary interviews. I further note that at the interview in Melbourne in 1996, management advised that such summons to a meeting in Melbourne was not a common event. My reason for raising such an issue relates to the exclusionary provision contained in section 3 of the Act, “reasonable disciplinary action”.
53. While the records before me demonstrate indicia of a reasonable disciplinary process, my concern relates to such a process being undertaken on a person without an understanding or knowledge that Mr MacDonald had a serious psychiatric condition. During the hearing process I explained this issue and was rewarded with an increased understanding of why such could occur. Issues raised included the nature of the disease process and the desire for the individual to be a loner, the episodic nature of symptoms, a desire by an individual to not acknowledge symptomatology, the work situation involving swings with different ships and crews and prolonged leave, and the ability of the seafaring community to assess the difference between unusual/eccentric behaviour and pathological behaviour. In such circumstances, my hindsight appreciation was adjudged just that. In the absence of particular material suggestive of Mr MacDonald’s behaviour being knowingly believed to be suggestive of a psychiatric disorder, I would conclude that his dismissal involved a reasonable disciplinary process.
decision
54. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: ..........................[Sgd]..........................
Associate: Jennifer WongDates of Hearing 17-18 June, 9-11 November 2009
Date of Decision 27 January 2010
Representative for the Applicant Self-represented
Counsel for the Respondent Mr J R Wallace
Solicitor for the Respondent Curwoods Lawyers
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