Madden and Australian Postal Corporation - [2000] AATA 556

DECISION AND REASONS FOR DECISION [2000] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/643

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STANLEY BRUCE MADDEN
  Applicant

And AUSTRALIAN POSTAL CORPORATION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date7 July 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd)               M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS

WORKERS COMPENSATION - Whether prior determination of post traumatic stress disorder could be challenged in these proceedings. Evidence not supporting treating psychiatrist's opinions and Respondent's specialists preferred.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

7 July 2000 Senior Member M D Allen

By application received 3 May 1999 the Applicant sought review of a reviewable decision made pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 affirming a prior determination that the Applicant was not entitled to compensation for the injury described as "anxiety and depression".
The said application for review came on for hearing before me on 28 June 2000 and at that hearing the following documents were taken in as exhibits and marked as follows, namely:
T1 – T50: Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1:    Letter by Applicant to the Administrative Appeals Tribunal dated 15 May 2000
Exhibit A2:    Letter plus attachments from the Applicant to the Administrative Appeals Tribunal dated 9 June 2000
Exhibit A3:    Letter plus attachments from the Applicant to the Administrative Appeals Tribunal dated 19 June 2000
Exhibit A4:    Letter plus attachments from the Applicant to the Administrative Appeals Tribunal dated 23 June 2000
Exhibit A5:    Clinical notes of Westmead Hospital Gastroenterology Unit
Exhibit A6:    Report by Dr A Stephenson dated 27 June 2000
Exhibit R1:    Respondent's Statement of Facts and Contentions dated 15 October 1999
Exhibit R2:    Report of Dr F Roldan, Clinical Psychologist, dated 4 September 1999
Exhibit R3:    Report of Dr F Roldan dated 15 September 1999
Exhibit R4:    Report of Dr F Roldan dated 7 October 1999
Exhibit R5:    Report of Dr F Roldan dated 4 April 2000
Exhibit R6:    Letter of instructions from Respondent's solicitors to Dr F Roldan dated 6 September 1999
Exhibit R7:    Letter of instructions from Respondent's solicitors to Dr F Roldan dated 30 September 1999
Exhibit R8:    Copy letter to Respondent's solicitors by the Applicant dated 6 September 1999
Exhibit R9:    Report of Dr M Walden dated 7 October 1999
Exhibit 10:    Report of Dr M Walden dated 14 February 2000
Exhibit R11 :    Copy clinical records of Dr R Bishay
Exhibit R12 :    Copy clinical records of Dr A Stephenson
Exhibit R13 :    Copy clinical records of Dr S Hambly

In a prior reviewable decision dated 12 February 1998, the Respondent had accepted liability for the Applicant's post traumatic stress disorder resulting from an injury on 30 September 1996. In these proceedings the Respondent contested that finding, a course it was at liberty to pursue there being no estoppel raised by administrative decisions – see Midland Metals Overseas Ltd v Comptroller-General of Customs 30 FCR 87.
On 2 November 1998 the Applicant made a claim for compensation in relation to depression alleged to have been caused by his being pricked in the middle joint of the left index finger while sorting parcels in the course of his employment. The compensation form gives the date of injury as 14 October 1998 whereas the actual incident occurred on 9 October 1998 – see Document T21.
In his evidence in chief, the Applicant confirmed that the physical injury occurred on 9 October 1998. He also stated that his supervisor, apparently in conformity with directions given by the Respondent, refused to allow the parcel to be opened so that an inspection could be made of what had caused the injury to the Applicant.
Whilst it is always easy to be wise after the event, it seems to me that the Respondent's directions in this regard are unduly restrictive. It is not only common humanity but it seems to me a necessary Occupational Health and Safety issue to permit the opening of mail where something contained in the mailed item has, as in this case, caused injury to an employee. The Respondent has other Occupational Health and Safety instructions with regard to needle stick injuries and it is uncontrovertible that in the case of that sort of injury or similar injuries, inspection of the offending item should be made.
The Applicant had made a previous claim for compensation alleging, with a report from his treating psychiatrist, Dr Stephenson, that he had suffered a post traumatic stress disorder following an incident on 11 August 1995 where it was suspected initially that the Applicant and a co-worker may have been exposed to radiation.
The present claim alleges that following the incident on 9 October 1998 the Applicant again decompensated and his post traumatic stress disorder was aggravated as a result.
Both in his evidence and in histories given to medical practitioners, the Applicant gave the following account of the first incident on 11 August 1995:
Whilst working as a supervisor at the South West Postal Centre at Regents Park the Applicant was approached by two staff members and asked if he knew anything about radioactive substances. He was then shown the lid of a styrofoam box which had lifted and two purple egg shaped objects were revealed. The Applicant picked one up. It was then he noticed a radioactive warning was noted inside the lid of the styrofoam box. A manager at the centre attempted to ring the consignor but was unsuccessful. The Applicant then contacted Australia Post security.
Australia Post security recommended the area be cleared and then some 20 minutes later fire brigade, ambulance and police attended. The Applicant and a co-worker who had touched the box were isolated from other staff. A fireman dressed in a yellow suit and full breathing equipment waved a detecting device over him and said words to the effect there was no evidence of radioactivity. He and the other employee had to disrobe and hand their clothes over and those clothes were then placed in a bag. They were then showered and given a pair of paper overalls to wear. The Applicant and his co-worker were informed that they would be spending that night in Auburn Hospital. Apparently, however, no radioactive material was found, the Applicant was given his clothes back and normal activities resumed. The Applicant was asked by his manager if he wished to go home but he said he did not and continued to work the balance of his shift. When he went home at about 1am he was unable to sleep until about 5am and he then woke at 6am. The following Monday he returned to work and filled out the necessary forms.
In his evidence in chief the Applicant stated that, following his return to work after the weekend, he continued to work normally, he felt nothing was wrong although as the months went by he noticed he was tired and had trouble communicating. At the end of September 1996, however, he had an emotional breakdown. He could not sleep at night and the next day he began to cry, not knowing what was wrong. This settled but later the same day at about 4pm he again began crying, shaking and "carrying on".
The next day the Applicant attended his general practitioner, Dr Bishay, who certified him as unfit for work because of anxiety and depression. Dr Bishay also referred the Applicant to psychiatrist, Dr Stephenson.
Document T8 is a report by Dr Stephenson dated 4 June 1997 which reads:
"Mr. Stanley Madden has been treated for post traumatic stress disorder since October 1996 which was a consequence of a work related incident which involved a radiation scare on 11th August 1995."
At the request of the Respondent the Applicant attended Dr Skinner, Psychiatrist, on 19 August 1997. Dr Skinner's report to the Respondent dated 20 August 1997 is at Document T11. Dr Skinner did not diagnose the Applicant as having a post traumatic stress disorder, as opposed to an episode of major depression not related to any work incident. At page 6 of her report, Dr Skinner opines:
"I do not think that Mr Madden's condition in October 1996 was directly related to the work incident on 11 August 1995. It is common when a person is emotionally disturbed, that they will think about various upsetting incidents that have recurred in the past. This does not imply that these incidents are responsible for the person's present condition."

Notwithstanding the report of Dr Skinner a review officer accepted, on the basis of Dr Stephenson's report, that the Applicant did have a post traumatic stress disorder as a result of the incident of 11 August 1995. Liability for that condition was ceased with effect from 31 January 1998.
Because of negligence in the manner in which he performed his duties, the Applicant was dismissed from the employ of Australia Post on 7 July 1998. An Appeals Board reversed that decision, substituting its decision that the Applicant be returned to employment on 17 August 1998 but demoted.
As stated above, it was shortly after being returned to employment with a demotion, namely on 9 October 1998, that the Applicant was injured by having his skin punctured by a sharp object contained in a parcel.
Although the Applicant stated that he complained to his wife that evening of his being cut at work and the refusal of his supervisors to open the said parcel, he did not attend his general practitioner until 14 October 1998 and then complained of pain to his sternum following a motor vehicle accident on 11 October 1998.
The Applicant also attended at Dr Bishay's surgery on 10 November 1998, 7 December 1998, 5 January 1999, 14 January 1999 and 18 January 1999 but it was not until 12 February 1999 that he informed Dr Bishay that he had injured his finger at work. Dr Bishay's notes for 12 February 1999 read inter alia (Exhibit R11):
"Injury to left index on 9/10/98 a knife in a parcel at work while trying to lift parcel. Wondering if it could cause any disease. On examination 1cm scar across the crease of P.I.P. (lateral side) …"

On 30 September 1996 Dr Bishay had noted (Exhibit R11):
"Patient is having a problem with wife, since being infected with Hepatitis C wife lost interest in sex. Patient is depressed about it and anxious too (very snappy)
last week they had a party and another person made a pass to his wife – patient was just about to kill him – patient has suicidal thoughts."

In her report of 16 September 1997 to Dr Bishay, Dr Stephenson also comments on these events, namely:
"A neighbour made an approach to his wife which first surprised him and then angered and distressed him. He became depressed waking in the early hours of the morning crying and crying in the evening. He took Aropax with limited benefit but felt no motivation or interest in the following weeks."
(Report is contained in Exhibit R11)

Also on 28 October 1996, Dr Stephenson had reported (Exhibit R11):

"Mr Madden has symptoms of Post Traumatic Stress Disorder, a reaction to the radiation scare which occurred at work 15 months ago. This delayed reaction appeared to be triggered by his wife's and then his own experience of depression and some degree of marital interaction which requires sorting out."

In her later report, namely that of 16 September 1997, Dr Stephenson did comment (Exhibit R11):

"The D.S.M.4. accepts a delayed reaction as one that occurs up to three months after the event, so the 15 month delay needs to be accounted for. An episode of depression and marital discord associated with the onset of symptoms may be significant."

Dr Roldan Ph D is a clinical psychologist and he interviewed the Applicant, at the request of Respondent, on 20 August 1999 and also conducted psychological tests. See Exhibit R2. Dr Roldan's opinion is summed up in his report of 7 October 1999 (Exhibit R4), namely:
"I would to indicate that it is my opinion that on the basis of the available evidence and on the balance of probabilities, it is unlikely that Mr Madden has suffered from a diagnosable and/or disabling psychological condition as a consequence of the work-related incidents on 11.08.95 and 09.10.98."

In a further report to the Respondent dated 4 April 2000 (Exhibit R5), Dr Roldan noted:
"Dr Bishay's cast notes indicate that on 06.06.98, Mr Madden had been suspended from work and the he was suffering from insomnia and (?) shaking, as well as depressed mood, diminished appetite and interest. He was again prescribed Aropax (antidepressant). In the mean time, he was continuing in the Interferon program and he was apparently suffering from muscle pains and 'neurological problems'. Thus, once again, there was no reference to post traumatic stress or the incidents in question and his psychological problems were apparently attributed to a number of other stressors. However, when seen by me, Mr Madden attributed the abovementioned symptoms to his allegedly delayed reaction to the work-related incident on 11.08.95."

And noted further:

"… Dr Bishay issued a medical certificate dated 14.10.98, claiming that Mr Madden was unfit for work between 14.10.98 and 16.10.98 due to 'anxiety depression and panic attacks due to a motor vehicle accident'. Thus, while the entry in Dr Bishay's case notes dated 14.10.98, refers to the motor vehicle accident on 11.10.98, it makes no reference to any psychological symptoms as a consequence of this accident or any other reason and a medical certificate issued on the same date refers to psychological symptoms entirely attributed to this motor vehicle accident, with no reference being made to any alleged psychological symptoms as a consequence of the work-related incidents on 11.08.95 and 09.10.98."

Following the work incident on 9 October 1998 and the motor vehicle accident of 11 October 1998, the Applicant was again referred by Dr Bishay to Dr Stephenson and, on 19 October 1998, Dr Stephenson issued a certificate stating (T22):
"Mr Stanley Madden is under investigation and assessment and remains unfit for work from 12.10.98 until 25.10.98."

On 27 June 2000 Dr Stephenson prepared a report which was taken in as Exhibit A6. That report was tendered with leave, the Respondent's counsel not objecting to its tender. In that report Dr Stephenson states:
"Mr Madden, … was first seen in 1996 with symptoms of post traumatic stress disorder and major depression in relation to a radiation scare which had occurred during his work and had some stage been accompanied by hyperventilation or panic disorder.
This occurred against a history of Hepatitis C diagnosed as a result of a blood test and followed up by his local GP, Dr Bishay 7 years previously.
During early 1997 Mr Madden was found to have elevated liver enzymes and referred to Westmead Hospital where after a liver biopsy he was placed on Interferon treatment in connection with which side affects such as mood swings and suicidal ideation were a matter of concern.
In March 1997 an incident involving missing money occurred at work which Mr Madden handled successfully.
Mr Madden managed this treatment without incidents taking Aropax Paroxetine at this stage, 40 mgs daily. Towards the end of 1997 a further threat, (a parcel pricked his finger), during the course of his work. Mr Madden became unable to work and he experienced an exacerbation of post traumatic syndrome which can and do run a variable course with an adverse reaction to further experience of trauma and adverse life events.
…"

Apart from the incorrect date of the event Dr Stephenson does not state why the Applicant's post traumatic stress disorder was of delayed onset, manifesting itself some 15 months after the radiation incident.

Dr Stephenson's certificate of 19 October 1998 states that the Applicant was undergoing investigation and assessment. Given that the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV) sets out the various symptoms upon which a diagnosis of post traumatic stress disorder can be made, I believe that there is much force in Dr Roldan's evidence that if the Applicant had presented on 19 October 1998 to Dr Stephenson with the symptoms that he told him (Dr Roldan) he was experiencing at the time, any competent psychiatrist would have there and then made a diagnosis of post traumatic stress disorder.
I also agree with the comments by Dr Walden, Psychiatrist, that it is debatable that the events of 30 September 1996 provided a stressor as that term is defined in the DSM-IV sufficient to cause a post traumatic stress disorder. The actual wording of the DSM-IV diagnostic criteria for post traumatic stress disorder occur at page 439 of that work, namely:
"A.The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person's response involved intense fear, helplessness, or horror."

I do not regard the events of 30 September 1995 as being of this magnitude.

Normally the Tribunal is particularly receptive to the opinions of treating medical specialists. In this matter, however, given the non-explanation by Dr Stephenson of as to why the Applicant's post traumatic stress disorder was of delayed onset and the failure, particularly in her latest report, to give an explanation as to why the incident of 30 September 1995 caused a delayed onset post traumatic stress disorder together with the reservations in her earlier reports as to marital difficulties, I find that I prefer the opinions of those other specialists who have reported as to the Applicant's mental state.
Document T38 is a report by a medical practitioner employed by Health Services Australia who examined the Applicant on 6 January 1999 regarding his fitness for work. In his report that medical practitioner notes:
"His main medial (sic) problem at present is Major Depression.
He said that he suffered the first episode in 1995 and sought medical help in 1996 when he started seeing a psychiatrist, Dr Stephenson. This episode resolved with anti-depressants, which were eventually stopped.
However the anti-depressants were recommenced in 8/98 at the time that he started the treatment of Hepatitic C with Interferon because of the risk of a recurrence of depression triggered by Interferon.
This risk is well explained in the pamphlet provided by Westmead Hospital, which is found at Tab 5 in the Australia Post file.
On the first page uncommon side effects are listed and these include 'depression, nervousness, anxiety, irritability and insomnia'. On the next page it further states that 'any depression and irritability, however, may increase as treatment continues'.
Mr Madden had a recurrence of his Major Depression in about 10/98 and is again seeing his psychiatrist regularly and is on a high dose of anti-depressants and also medications for anxiety."

Dr Walden, Psychiatrist, examined the Applicant on 5 October 1999 at the request of the Respondent. At page 5 of her report (Exhibit R9) she states:
"There is no satisfactory explanation provided by Mr Madden as to why there was a delay of several months in the diagnosis of Post-traumatic Stress Disorder. I note the history taken by Dr Yvonne Skinner in August 1997 and she made a diagnosis of Major Depressive Illness. I could not obtain a clear history of symptoms of this condition from Mr Madden."

And at page 10 Dr Walden states:

"With regard to your query regarding any possible relationship between the alleged anxiety and depression sustained in late-September 1996 and the alleged radiation incident on 11 August 1995, I have doubts about the history and diagnosis. Mr Madden described an incident at work in which he believed he could have been exposed to radiation. Whilst this was a reasonable concern transiently, there does not appear to be any objective evidence on which to base Mr Madden's allegation that there was contamination about which he was not told. He does not describe any psychological symptoms at the time. Without any obvious precipitant in September 1996, he describes symptoms consistent with a DSM-IV Diagnosis of Post-traumatic Stress Disorder. Whilst Post-traumatic Stress Disorder symptoms may be delayed, it is not especially common and I think it is debatable whether the incident in August 1995 actually satisfies the DSM-IV Criteria for a stressor in which there was a serious threat to life. Further concerns about this are raised by the fact that neither his treating general practitioner, nor his treating psychiatrist, appear to have diagnosed this condition for many months and this seems unlikely if his symptoms were as clear as he reports. Further doubt is cast by the assessment of Dr Yvonnne Skinner in August 1997 in which she notes that he had some thoughts regarding this, but seemed to think that symptoms of Depression were more prominent and made the diagnosis of Major Depression."

And opined that currently the Applicant had no psychiatric illness.

In a later report dated 14 February 2000 (Exhibit R10), after perusing the clinical notes of Drs Bishay and Stephenson, Dr Walden reports:
"Overall, I could not find anything in the clinical notes which would cause me to vary any aspect of my previous report other than to comment that the apparent cause for Mr Madden's feelings of anxiety and depression in September 1996 were related to marital problems, which was not clear from the interview with him. Given that there is no mention of the injury from a parcel on 9 October 1998 until six consultations later with his general practitioner in February the following year, and it does not seem to be in the first consultation after 9 October 1998 with Dr Stephenson, I would reiterate my opinion that it seems unlikely that this was a causal factor in Mr Madden's alleged symptoms."

I do note, however, that there is the report of 19 October 1998 from Dr Stephenson that the Applicant is under investigation, but again there is no mention in this particular certificate of any incident with a parcel.

I have already stated that I prefer the opinions of specialists other than Dr Stephenson. I find much force in the submission that if the Applicant had presented initially with the symptoms of post traumatic stress disorder, an immediate diagnosis would have been made. I find that the more probable reason for the Applicant's illness in 1996 was the diagnosis of being Hepatitis C positive and his marital problems. As for the incident of 9 October 1998 I find that, given the failure of Drs Bishay and Stephenson to make immediate diagnoses of post traumatic stress disorder, means that the symptoms were not then apparent. That the Applicant first reported to Dr Bishay regarding a motor vehicle accident and only mentioned the injury to his finger some six visits later, shows that the incident that occurred at work was not foremost in his mind, and any problems he may have had were the result of the motor vehicle accident.
The Applicant laboured under the difficulty of having to represent himself. However, his cross-examination by counsel for the Respondent left me with the distinct impression that he was being less than frank and that notes made at the time were to be preferred to his version of events.
As I am satisfied that there was no work caused injury giving rise to any incapacity that may have been suffered by the Applicant, the decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed:        Ivanka Mamic           .....................................................................................
  Associate
Date of Hearing  28 June 2000
Date of Decision  7 July 2000
Solicitor for the Applicant         Applicant was self-represented
Counsel for the Respondent    Mr B Skinner
Solicitor for the Respondent    Forners, Solicitors & Consultants

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Citations

Madden and Australian Postal Corporation [2000] AATA 556

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