Manuel and Comcare
[2009] AATA 848
•4 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 848
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0908
GENERAL ADMINISTRATIVE DIVISION ) Re BLANCHE MANUEL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date4 November 2009
PlaceMelbourne
Decision
The Tribunal sets aside the decision under review and remits the matter to Comcare to calculate the compensation to which Ms Manuel is entitled under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988.
(sgd) Egon Fice
Member
Compensation – motor vehicle accident – travel between place of residence and place of work – schizophrenia – prodromal signs – mental illness prior to motor vehicle accident – effect of motor vehicle accident on mental functioning – aggravation of mental illness – material contribution by employment – temporary or permanent aggravation – injury simpliciter
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Darling Island Stevedoring and Lighterage Co v Hankinson (1967) 117 CLR 19
Grant v Repatriation Commission (1999) 57 ALD 1
Martin v Australian Postal Corp [1999] FCA 655
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Clinical Guidelines to the Rating of Psychiatric Impairment
Compensation (Australian Government Employees) Act 1971 s 29
Guardianship and Administration Act 1986
Medical Journal of Australia (Volume 190, Number 4-16 February 2009) entitled Pathways to Schizophrenia including an article Characterising Novel Pathways to Schizophrenia
Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 19, 24 and 27
Workers' Compensation Act 1926 (NSW) s 6
REASONS FOR DECISION
4 November 2009 Mr Egon Fice, Member 1. On 11 June 2004 Ms Blanche Manuel was struck by a motor vehicle as she was crossing a road on her way home from work. She suffered a fractured left pubic bone, a fractured left ulna, fractures to her left little finger and damage to her teeth.
2. Following treatment for her physical injuries, Ms Manuel was observed to be behaving in an unusual manner. On 20 September 2004, the first day on which it was intended that she resume work, instead of returning to work she attended a shopping centre, where she attempted to purchase items worth $20,000 using her credit card. When that transaction was refused, Ms Manuel refused to leave the store. Her unusual behaviour led to Ms Manuel being admitted to the psychiatric ward of the Monash Medical Centre. A psychiatrist subsequently diagnosed her as suffering from depressive episodes with psychotic features. Although she was discharged on 14 October 2004, she was re‑admitted on 2 November 2004, again as an involuntary patient. It was at this time that she was diagnosed with schizophrenia.
3. On 17 June 2004 Ms Manuel lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of her physical injuries. Comcare accepted the claim. On 7 May 2007 Ms Manuel’s solicitors wrote to Comcare requesting that liability be extended to include a psychological injury. In a determination made on 26 September 2007, Comcare denied liability for chronic paranoid schizophrenic illness.
4. Ms Manuel sought reconsideration of that determination. In a letter dated 3 January 2008, Comcare set aside the initial determination and decided that it was liable to pay Ms Manuel compensation for post traumatic stress disorder (PTSD) as a result of the injuries she sustained on 11 June 2004. However, Comcare denied liability for Ms Manuel’s psychotic/schizophrenic illness. Ms Manuel now seeks a review of Comcare’s reconsidered determination of 3 January 2008.
5. There was no dispute about the fact that Ms Manuel has schizophrenia. Therefore, the issues before me are:
(1)whether Ms Manuel’s employment contributed to her psychological condition in a material degree;
(2)can environmental factors cause or aggravate schizophrenia;
(3)did the motor vehicle accident cause or aggravate Ms Manuel’s psychological condition; and
(4)if the motor vehicle accident aggravated Ms Manuel’s schizophrenia, whether that aggravation was temporary and the effects of the accident have now ceased.
EVIDENCE OF PSYCHOLOGICAL ILLNESS PRIOR TO THE MOTOR VEHICLE ACCIDENT
6. Ms Manuel was born in India on 3 November 1952. After completing her schooling in 1970, she attended a business college to study shorthand and typing. She was then employed as a stenographer with the Indian Institute of Management between 1972 and 1987. In September 1987, together with her family, she migrated to Australia.
7. After arriving in Australia, Ms Manuel worked with the Administrative Appeals Tribunal for a period of about three months. She then obtained employment as an Administrative Officer with the Insolvency & Trustee Service Australia (ITSA) where she continued to be employed until her accident on 11 June 2004. While employed at ITSA, Ms Manuel studied part time at RMIT University, where she obtained a degree in accountancy.
8. Ms Manuel’s three sisters gave evidence about her mental state prior to the motor vehicle accident on 11 June 2004. Gloria Manuel (Gloria) is Ms Manuel’s youngest sister. She provided two written statements to the Tribunal and she also gave oral evidence at the hearing. She described her sister as a quiet, reserved person. According to Gloria, prior to the motor vehicle accident, Ms Manuel appeared to be functioning well on a day-to-day basis, as she worked, maintained a motor car, cooked meals, took care of her health and participated in recreational activities. However, she recalled three incidents which she regarded as unusual behaviour.
9. Gloria said that at some time in the mid-1990s, when Ms Manuel was visiting her, a helicopter flew overhead and the noise was loud. She observed her sister’s reaction as being particularly fearful and worried.
10. Gloria recalled that, at the funeral of their brother in 2001, Ms Manuel was asked if she wanted to place something on the coffin. She said that Ms Manuel reacted in an anxious, scared manner; which she thought was out of the ordinary.
11. Gloria said that, in about April 2003, Ms Manuel, along with all of her family, attended a relative’s wedding in Adelaide. She recalled Ms Manuel wore very casual clothing, which she thought was inappropriate for the wedding. She also noticed her sister was very withdrawn and did not talk to many people.
12. Gloria explained that after about 2003, she noticed a decline in her sister’s level of contact with the family. She said Ms Manuel was difficult to contact and appeared to be quiet and withdrawn. She said at times when spoken to, her sister would not respond. She also recalled visiting her home on one occasion when she noticed Ms Manuel wearing heavy make-up, which she said was uncharacteristic of her sister.
13. Under cross-examination Gloria agreed that her contact with her sister declined from about April 2003. She said she didn’t recall exactly how many times she visited her sister between April 2003 and the beginning of 2004, but it was probably only over the Christmas period on one occasion.
14. Mr Ben Dubé of counsel, who appeared on behalf of Comcare, drew Gloria’s attention to a home assessment prepared by a social worker in July 2004. The social worker noted that Ms Manuel had been living in a garage adjacent to her unit for about two years as she was renovating the unit. Her living space in the garage was approximately one metre by one and a half metres in total. The social worker noted the garage was very cluttered with a low camp-style bed and a plastic outdoor armchair. There was a microwave, kettle, food and clothes stored in the garage. She observed that Ms Manuel used the unit area for showering and toileting as well as the refrigerator for storing food. The walls inside the unit were sanded back and the unit itself was quite liveable but devoid of any furniture. The ceiling of the garage was covered in black plastic.
15. When Mr Dubé asked about these living conditions, Gloria said she could not recall them, nor could she be sure about the length of time her sister had been living in the garage. When asked how she found out about the motor vehicle accident, she said that her father went to ITSA’s offices and was told by one of the managers about the accident. Ms Manuel had not informed any of her family about the accident and ITSA found out about the accident only after making enquiries as to her whereabouts.
16. When asked whether she was of the view that Ms Manuel’s condition had deteriorated in the two years prior to the accident, Gloria said that she saw little of her sister.
17. Ms Grace Hamilton, another Ms Manuel’s sisters, provided two written statements and gave oral evidence at the hearing of this matter. Ms Hamilton is Ms Manuel’s second-youngest sister. She said that prior to the motor vehicle accident, she saw her sister at least once a month at family gatherings and on visits to her home. Ms Manuel was capable of driving and would also regularly catch public transport. Prior to the accident, Ms Manuel had decided to renovate her house and she had been preparing the interior of her unit for painting. She also said that Ms Manuel purchased appliances to replace the existing ones in her house.
18. Ms Hamilton said her sister travelled independently to the United States to visit their second eldest brother and she also visited India. She said Ms Manuel visited their parents almost every week. She described Ms Manuel as a person who was conscious of her health, would shop regularly and was an excellent cook. She maintained good nutrition and took pride in her appearance. She managed her own finances and was very good at budgeting. Ms Manuel was resourceful and sewed her own clothing, having completed a sewing course shortly prior to the accident. She described her sister as a steady person who generally kept to herself but would express her opinions when asked. Unfortunately, Ms Hamilton made no mention of the dates of any of the events referred to above.
19. In her oral evidence Ms Hamilton said she did not notice any odd behaviour by her sister in the 1990s. She did not observe any odd behaviour at the funeral of their brother in 2001. She did mention that a family friend died shortly after their brother and that it had a huge impact on Ms Manuel. She described Ms Manuel as becoming a bit quiet. She did not consider her sister’s attire at the wedding in 2003 to be odd. Ms Hamilton confirmed that Ms Manuel had moved into her garage in about 2003 when she commenced renovating her house. She was aware that her telephone was disconnected at about that time. She also said that Ms Manuel visited her at her house in either January or February 2004.
20. Mr Dubé asked Ms Hamilton whether there was a change in the frequency of contact with Ms Manuel prior to June 2004. Ms Hamilton said she travelled more frequently at that time and therefore did not see her as often as she previously did. She said she only became aware that her sister had been hospitalised following the motor vehicle accident after her father went to ITSA and was told about the accident. She agreed that she probably had not seen Ms Manuel for a couple of months before the accident, particularly as her son was born on 1 December 2003 and looking after him took up her time.
21. Ms Hamilton agreed that Ms Manuel’s living space in the garage was cramped. When asked if she thought that living in those conditions for two years was strange, she said no. She did not discuss with Ms Manuel why she remained living in the garage. She did not know exactly when her sister had the telephone disconnected but thought it was at about the time she commenced renovating the house. When Mr Dubé put to Ms Hamilton that their father had told the Monash Medical Centre that Ms Manuel was going mad she said that her father said that about all of the children. That was how he expressed himself. She disagreed that her sister had withdrawn from life or that she became more difficult to communicate with. She did say she was surprised that she had not been informed of the accident until a few weeks after it occurred. Asked if she found that strange, Ms Hamilton said she found it very unsettling.
22. Ms Cynthia Ambrose is also Ms Manuel’s sister. Before the motor vehicle accident, Ms Ambrose said she saw her sister regularly, as they were neighbours living in the same block of units. She saw her at family functions and on other occasions. In her written statement, Ms Ambrose said that Ms Manuel was fine prior to the accident in June 2004. She described her as a normal person living a very active lifestyle. Although she agreed that her sister was a quiet person who generally kept to herself, she was of the opinion there was nothing unusual about that. It was simply her sister’s personality.
23. In her oral evidence, Ms Ambrose said she did not observe any behavioural changes in her sister in the 1990s. However, closer to the time of the accident, she said her sister seemed to be more withdrawn, although she was busy with renovations to her house. Under cross-examination Ms Ambrose admitted that she did notice a change in her sister in 2003. She described her sister as not being her usual self and that she had neglected herself; by which I understood that she had neglected her personal grooming to some extent. Ms Ambrose admitted that her sister’s behaviour was sometimes strange. She was also aware of her father’s concerns about Ms Manuel’s mental state. She admitted that on one occasion she noticed her sister wearing excessive make-up, which was uncharacteristic of her.
24. The notes from the Monash Medical Centre indicate that Ms Manuel was concerned about how she would manage when the Centre discharged her, as she lived alone. The notes state: no family close by. The notes also indicate that she did not usually drive and used public transport. It was not until ITSA became aware, because of the compensation claim, that Ms Manuel was involved in an accident and had been hospitalised, that contact was made with her parents.
25. The Monash Medical Centre notes indicate that on 1 July 2004, the Centre contacted Ms Manuel’s parents and that no one in her family was aware of the accident at that time. She had then been in hospital for two weeks. According to the notes, Ms Manuel’s parents were concerned with her strange behaviour and they said her condition had deteriorated over the past two years. They indicated she was estranged from the family, did not socialise with any of the family and is afraid of everything. It was only at this point that the hospital decided to obtain a psychiatric assessment.
26. The Monash Medical Centre notes of 9 July 2004 were said to have been drafted by the social worker after speaking with Ms Hamilton and with Ms Manuel’s father. Mr Manuel described his daughter to the social worker as a peculiar and odd person whom [sic] has always been softly spoken and independent. … [He] explained that Blanche has distanced herself from family functions over the past 2 – 3 years. The notes indicate her father attempted to discuss his concerns with Ms Manuel but he did not receive a response. He described his daughter as slowly becoming mad.
27. A number of Ms Manuel’s former work colleagues at ITSA also gave evidence. Ms Christine Dimitros commenced work with ITSA in May 1990. At that time, Ms Manuel was already employed by ITSA. Although it was 19 years ago, Ms Dimitros said that she remembered Ms Manuel then being heavily stressed due to her workload. Even at that time, she said she would have described Ms Manuel as quiet and reserved and found her to display occasional odd or strange behaviour. She said she would often find Ms Manuel standing by the window and staring and you could tell she was miles away.
28. After 1992, Ms Dimitros moved to another section and had less contact with Ms Manuel. However, after returning to full time employment in 1998/1999, following maternity leave and overseas travel, she moved into Human Resources and assumed an IT role. During this time, she was located on the same floor as Ms Manuel, who sat close to her desk. She said that late in 2003 or early in 2004 she observed Ms Manuel, very suddenly, to begin to wear very heavy make-up which was not well applied. She said in her view, it was like a clown’s make-up or make-up applied by an elderly person with poor eyesight.
29. Mr Rodney Holland commenced work with ITSA in 1983. He is an Insolvency Case Manager. He said he worked with Ms Manuel for about 10 years from her commencement with ITSA in July 1988. He said his closest working relationship with Ms Manuel was between 2000 and 2004 when he was in a combined role involving bankruptcy, registry and compliance functions, as well as assisting the Contributions Team in which Ms Manuel was a case officer. He said he had weekly contact with Ms Manuel between 2000 and 2004.
30. Mr Holland said the bankrupts for whom Ms Manuel was the case officer would frequently come to the counter, more often than any of the other bankrupts would. They would often present unannounced and demand to see her. Mr Holland said he took details from those bankrupts and he would go to see Ms Manuel to explain the situation, identify the bankrupt and the nature of their request. He said Ms Manuel was inconsistent in the way she dealt with colleagues and bankrupts, and she was abrupt and aggressive. He said working with her was very difficult.
31. Mr Holland said that when he reported to Ms Manuel’s workstation to let her know that a bankrupt had arrived at the counter to see her, she would tell him that she would not see anyone without an appointment. She would ask for another manager to deal with the bankrupts for whom she was responsible if they presented in person. This posed difficulties for Mr Holland because frequently bankrupts had indicated to him that they had tried to deal with Ms Manuel over the telephone but had failed. He said he had to take over Ms Manuel’s files when she left and they were in a mess. He said there were many technical mistakes, untidy and haphazard filing and rambling and incoherent handwritten notes.
32. Mr Holland also recounted an incident, which he thought occurred in about 2002, when a bankrupt arrived unannounced and demanded to see Ms Manuel. He said he went to her workstation to let her know that the bankrupt was at the counter. Ms Manuel refused to come out and deal with the bankrupt and became very agitated. He said she berated him and picked up a razorblade and began to play with it. He thought this was most disturbing and felt concern for her safety. That event prompted him to see Mr Ashley Paige, the Official Receiver. He described to Mr Paige the build up of Ms Manual’s erratic behaviour in dealing with bankrupts and colleagues. According to Mr Holland, Mr Paige said he was aware of the problem and that it was being dealt with. Mr Holland was unhappy with that response and so he went to see the Deputy Official Receiver, Mr Ed Marsh, who has since died. He received the same response and he thought that both those persons were frightened to take any direct action.
33. According to Mr Holland, when Ms Manuel moved to the Contributions Team, she became withdrawn and reclusive, appeared unfriendly and sometimes almost scary. In his opinion, Ms Manuel’s general demeanour between 2000 and 2004 was volatile, unbalanced and inconsistent. He also noticed a change in her personal attire in that, until two years prior to the accident, she wore traditional Indian dress and then, in the last two years of her work at ITSA, in his opinion, Ms Manuel began to wear more eccentric attire. By this, he meant that she suddenly began to wear very colourful and elaborate Indian attire, which was out of character.
34. After he took over Ms Manuel’s files, he found numerous complaints from bankrupts. He said I have never seen anything like it. He also found that bankrupts were relieved when they found they did not have to deal with her any longer. When Mr Horner, who appeared on behalf of Ms Manuel, pointed out to Mr Holland in cross-examination that Ms Manuel received a higher-duty allowance when she took over from Mr Danny Klopovic, and that she was subsequently promoted, Mr Holland said that could have been the case as it happened regularly.
35. Mr Horner asked Mr Holland whether Ms Manuel was doing the job well enough to remain in her position. Mr Holland responded definitely. He said he was not aware if Ms Manuel had received any performance counselling. When it was suggested to Mr Holland that he did not complain about the condition of Ms Manuel’s files, he insisted he had complained to Mr Klopovic and Mr Anastasious Angelopoulos. He said the files where in such a bad condition that the errors could not be fixed and they were finalised. As to the complaints received from bankrupts, Mr Holland said that those clients had difficulty dealing with Ms Manuel because she was not returning telephone calls and she was rude and aggressive over the telephone. She never came to the counter to address the bankrupts’ concerns, whereas other case officers did.
36. Mr Klopovic provided a written statement and also gave oral evidence. He is the Assistant Deputy Official Receiver, having been appointed to that position in March this year. Prior to that, he was acting in that role and an Estate Administration Business Analyst. He said he worked with Ms Manuel closely for approximately two years prior to the accident in June 2004. He has known Ms Manuel since 1989. He said that on one occasion, in either 2000 or 2001, he was invited to dinner at Ms Manuel’s house. He described her as being open and friendly on that occasion. Between 2002 and 2004 he worked with Ms Manuel on Contributions files. Although he was in a higher position than Ms Manuel, he was not her manager. Her manager at that time was Mr Angelopoulos. He said that he had conversations with Ms Manuel once or twice a week and he did not experience any difficulties communicating with her at the time.
37. However, he noticed that at some stage in 2002 Ms Manuel became quiet and stopped talking to him about anything other than file-related issues. He did not become aware, until much later, that Ms Manuel was advising her clients only to contact her by email. He said he began to receive complaints from Ms Manuel’s clients about her performance in the latter half of 2003. He became aware of the complaints because he was required to deal with her clients when she was away on leave or sick.
38. Mr Klopovic described two types of complaints:
(1)where clients said they couldn’t contact her; and, more commonly,
(2)where they did not feel that they could approach her and she was not helpful or forthcoming in telephone discussions.
39. Mr Klopovic said that in the latter half of 2003 a number of Ms Manuel’s clients began to request that their files be transferred to him because they did not want to deal with Ms Manuel. He thought about 12 files were transferred to him under those circumstances. When he began to review those files, he noticed various oddities. For example, there were frequent emails from Ms Manuel to clients asking them not to contact her by telephone. She had also not performed certain routine tasks.
40. After Ms Manuel’s accident, Mr Klopovic was given all of Ms Manuel’s files (approximately 115). He said that the state of her files indicated her work performance was poor. He noted that she had told a significant number of clients that they were not to call her on the telephone but were only to communicate via letter. He said income questionnaires had not been sent out as required, contributions had not been assessed and some bankrupts had not been followed up for a period of 12 months or more. He said this would ordinarily be regarded as a serious performance issue. In his opinion, Ms Manuel had been in deep denial about her work difficulties for at least 18 months.
41. Mr Klopovic also said that in the final two years of working with Ms Manuel, he noticed that she became increasingly reclusive and withdrawn. He also noticed dramatic fluctuations in her appearance. He said that in early 2002 for example, she routinely dressed brightly in what he called power suits, and she wore bright make-up characterised by bright red blusher and bright red lipstick. He said this period lasted about three to four months and during that time she was in fact quite pleasant and easy to talk to. Although unable to remember exactly when, he said she suddenly changed, overnight. She wore no make-up at all and her clothes were darker coloured and more casual. He recalled her mood seemed to change at this point and she had stopped smiling and communicating. He said that in the final 12 months before June 2004 Ms Manuel became more reclusive, reserved, shy and withdrawn. However, under cross-examination, Mr Klopovic said he did not consider her clothing eccentric. He said he would also not have described her behaviour as erratic.
42. Ms Manuel worked for Mr Angelopoulos, a Case Supervisor in Estate Administration, for approximately three years prior to her accident in June 2004. Mr Angelopoulos said that Ms Manuel was one of approximately five or six case officers for whom he was responsible. He said that Ms Manuel’s interaction with clients (bankrupts) was very problematic from the time he began to manage her. He described Ms Manuel as being unable to deliver information pitched at the right level to clients, making her extremely inaccessible to them.
43. Mr Angelopoulos started to receive complaints from clients as soon as he became Ms Manuel’s manager. Initially, he did not regard the complaints too seriously because the nature of the work was such that clients complained frequently. However, the frequency of complaints about Ms Manuel changed in the last 6 to 12 months of her employment. At that time, Mr Angelopoulos said he received one or two complaints from her clients per week. In the last 6 months of her employment, he said he received an extraordinary number of complaints, sometimes three to four per week. He said clients would sometimes contact him directly and advise they had left seven or eight messages on Ms Manuel’s voicemail but had not received a return call. Other clients told him that they had written a letter three months previously and had not received a response. This was becoming a more common occurrence and they were extremely angry. He was also aware that some clients were coming to the office unannounced to see Ms Manuel, out of desperation, because they had been unable to contact her by phone.
44. Mr Angelopoulos said that in the last six months of her employment, he had to informally counsel Ms Manuel on at least five or six occasions. He described her reaction upon being counselled as blank face. He said she was expressionless, showed no emotion or recognition of the questions he asked of her and the comments he was making. He said that on a number of occasions he asked her if she understood what he was saying and there was absolutely no response, either verbally or by way of facial recognition. He recalled a specific incident, shortly before the accident, when he called Ms Manuel in and said Look Blanche, this isn’t good enough. He said she stared blankly at him and stood up and left without saying a word. He was extremely shocked and went to see the Deputy Official Receiver, Mr Ed Marsh. He said he did not know what became of his complaint because there was no marked improvement in her behaviour subsequently.
45. After June 2004, when Mr Angelopoulos had to access Ms Manuel’s voicemail to deal with unanswered calls and queries, he said he was shocked to find between 100 to 150 unanswered calls. He said that the state of her files was not up to the standard that I would have expected of someone of her experience. He said tasks had not been performed for at least six months and sometimes longer. He said this deterioration occurred in the last 12 months of her employment. He said that in his view, her response to his counselling began to change in the last 6 to 12 months when she went downhill very quickly. He said that at times he would speak to her about a task and she would not acknowledge his presence, let alone that he had a task for her to complete. He described this as a very embarrassing and weird experience.
46. Mr Angelopoulos also recalled an incident when a Mr Phillip Bezemer, a case officer at a higher level than Ms Manuel, came to see him to say he was concerned about Ms Manuel, who did not appear to be answering phone calls. He said his observation of Ms Manuel at this time was that she was typing incessantly at her computer, but would minimise the screen every time he attempted to ascertain what she was actually typing. He was concerned because there was no need to be typing constantly in a case officer’s position. When he reviewed her files after she left, there was no evidence of any typing being done on her files. He also described Ms Manuel as being very quiet at meetings in the 6 or 12 months prior to the accident. She did not appear to be listening and he thought she was in another world.
47. Mr Angelopoulos also commented on Ms Manuel’s dress and grooming between 2001 and June 2002. He said she never wore make-up to work and her dress style was very conservative and modest. However, about 18 months to two years before the accident, he said this changed literally overnight. He said she arrived at work with very heavy western make-up including very red lipstick and an enormous amount of red blusher on her cheeks. Her eye make-up wasn’t too exaggerated but overall it was a big shock for everybody. He said her clothes also changed dramatically in that she started to wear skirts and heels and generally less modest clothing. He regarded it as an astonishingly dramatic change.
48. Under cross-examination Mr Angelopoulos agreed that what he described as odd behaviour by Ms Manuel occurred only in the last six or seven months. He said prior to that, she did talk with other people. He agreed that some of her Indian friends, who also worked at ITSA, left about six months prior to her accident. He agreed there was no increase in her absenteeism although she may have had the odd day off. He disagreed that the extent of her decline in work efficiency was dramatised. He also agreed that Ms Manuel was introverted but said that in the later period of her employment, she became more introverted.
49. Ms Pauline Kourevellis was employed by ITSA between 1993 and July 2008 as the Human Resources Manager. She was ITSA’s Human Resources Manager at the time Ms Manuel was involved in the motor vehicle accident in June 2004. She was also her rehabilitation case manager. Ms Kourevellis said that a few weeks or so before the motor vehicle accident, she became aware of deterioration in Ms Manuel’s behaviour. The change seemed sudden to her as she became aware of it when a colleague suggested she should talk with Ms Manuel. When she did so, she went to Ms Manuel’s desk but Ms Manuel did not respond to her. She tapped her on the shoulder and Ms Manuel looked at her as if her presence did not register.
50. She said that as well as being non-responsive and appearing dazed, she also noticed a change in Ms Manuel’s presentation. She said Ms Manuel was generally well groomed but on one day in particular, she came to work and she was not her usual self; her make-up was poorly applied and her presentation was not as meticulous as usual. She did not mention these observations to Ms Manuel’s sisters at a meeting she had with them subsequent to the event.
THE MEDICAL EVIDENCE
51. Dr Henry Monkus had been Ms Manuel’s general practitioner since 1984. His clinical notes indicated consultations between 1990 and 1999 and then a break until after the motor vehicle accident in 2004. He said he last saw Ms Manuel on 10 June 1999. He described Ms Manuel as a normal patient who, at a consultation on 10 June 1999, was concerned about the fact that her parents had been diagnosed with coronary artery disease. Asked if he noticed any psychotic signs, Dr Monkus said definitely not.
52. Four psychiatrists, Professor G D Burrows, Dr P Braun, Dr N Strauss and Dr M Epstein provided written opinions regarding Ms Manuel’s schizophrenia and they gave oral evidence concurrently. In addition, Dr S Wilkins, a psychiatrist at the Alfred Hospital, provided a brief written report. Dr Wilkins did not provide an opinion about Ms Manuel’s psychiatric state prior to her motor vehicle accident. Dr D Mitchell, Senior Psychiatric Registrar at the Monash Medical Centre, also provided a written opinion dated 27 August 2004. However, this opinion did not deal with Ms Manuel’s psychiatric state prior to the accident but rather came about as a referral because of difficulties with her rehabilitation following the motor vehicle accident.
53. Professor Burrows attached to his statement of 24 June 2008 a copy of that part of the (American Psychiatric Association’s) Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM‑IV-TR) dealing with the nature of schizophrenia and other psychotic disorders. DSM-IV-TR states that:
The onset may be abrupt or insidious, but the majority of individuals display some type of prodromal phase manifested by the slow and gradual development of a variety of signs and symptoms (e.g., social withdrawal, loss of interest in school or work, deterioration in hygiene and grooming, unusual behavior, outbursts of anger). Family members may find this behavior difficult to interpret and assume that the person is "going through a phase." Eventually, however, the appearance of some active-phase symptom marks the disturbance as Schizophrenia.
54. Having seen Ms Manuel’s medical documents; having interviewed her in the company of her sister, Gloria; and having read the witness statements of her fellow employees, Professor Burrows was of the opinion that Ms Manuel had prodromal signs (symptoms indicative of the disease) of the illness as far back as 1994. In his opinion, Ms Manuel had significant problems before the motor vehicle accident. He said schizophrenia is predominantly a disorder of thinking and Ms Manuel obviously had quite marked thinking problems in the workplace. The fact that she would not answer questions at work, would retreat and not answer the telephone, were all indicative of the development of the disease. According to Professor Burrows, Ms Manuel was an example of what psychiatrists see not infrequently; somebody at a later stage in life with a slow, insidious onset of schizophrenia. In his opinion, her difficulties in the workplace were obvious symptoms of a thinking disorder. Mr Dubé asked Professor Burrows whether there was sufficient evidence prior to June 2004 to say Ms Manuel had a psychiatric illness. Professor Burrows said:
I think that if we had interviewed this lady before the accident, we would have been able to make a diagnosis of schizophrenia.
55. Dr Braun disagreed with Professor Burrows’ statement about being able to diagnose schizophrenia before the accident. Dr Braun said he had the advantage of seeing Ms Manuel a few months after the accident and he explained that schizophrenia is not a typical illness. He said it could present as a slow, insidious change where people become withdrawn or it could present more acutely. Nevertheless, prior to accident, he said that Ms Manuel was somehow functioning. He did not think being fearful of a helicopter could be described as bizarre. However, he said that there certainly was some evidence of a change in behaviour. Mr Dubé asked Dr Braun whether there was sufficient evidence prior to June 2004 to say there was a psychiatric illness present. Dr Braun said:
Yes, I think that’s fair enough. I think we know that she had, sort of, schizoid traits well before, throughout her life, you know, relationship wise she was a bit of an odd character and then something happened and in her late-50s she seems to have got worse and following the car accident she becomes extremely unwell.
56. In a report dated 20 April 2007, Dr Epstein said he examined Ms Manuel in the presence of her sister. He reported that Ms Manuel was a rather quiet person and had been so all her life and there was no real change in her behaviour in the years prior to the accident. He said that there was one report of some bizarre behaviour in 1990 but Ms Manuel and her sister denied any knowledge of that. However, after Dr Epstein had the benefit of reading the witness statements presented in this matter, he said that it seemed to him to indicate a significant deterioration in behaviour before the accident. He said it caused him to rethink his view about the situation.
57. Dr Epstein disagreed with Professor Burrows that the episode in 1990 (the helicopter incident) was significant, because it occurred 14 years before the accident. Nevertheless, he was of the view that Ms Manuel had prodromal signs for at least a year or two before the accident, suggesting some slight deterioration in function. He said that prior to the very clear clinical onset of the disease, there were, in retrospect, indications that there was some deterioration. Dr Epstein said he thought it likely that if Ms Manuel had been interviewed by a psychiatrist before the accident, she may well have been thought to be psychotic. He thought she may well have been experiencing thought disorder and that she had been concealing that from others. He said the information that he had received more recently from her work colleagues in their witness statements indicated there was some deterioration a year or two before the incident.
58. Dr Strauss, in his written report dated 12 December 2007, said he had had the benefit of talking to one of Ms Manuel’s sisters at the time he interviewed Ms Manuel. Ms Manuel’s sister told Dr Strauss that prior to the motor vehicle accident Ms Manuel had become withdrawn and isolated. She would not respond to her family, would not answer the door or emails and had become significantly more withdrawn. Dr Strauss pointed out there was definite evidence that Ms Manuel had changed her behaviour prior to the accident. In his written report, Dr Strauss concluded that Ms Manuel probably always had schizoid personality traits rendering her an isolated, withdrawn individual but that she coped with her life adequately until a few years before the accident; and that she then went into psychological decline. At the time of writing that report, Dr Strauss did not have the benefit of reading the witness statements from Ms Manuel’s work colleagues.
59. At the concurrent oral evidence session, Dr Strauss said that he had now seen the witness statements from Ms Manuel’s fellow employees. When Mr Dubé asked Dr Strauss whether schizophrenia was present prior to the motor vehicle accident, Dr Strauss said that he did not know. He said that it was very hard to make a retrospective diagnosis. In the course of the concurrent session, Dr Strauss clarified that he had never argued that Ms Manuel did not have a prodromal period; in fact he thought she did. He nevertheless expressed some caution about her behaviour being regarded as psychotic. He accepted that prior to the accident she was functioning at a level that wasn’t very healthy. He was not prepared to say whether there was a gradual deterioration before the accident or whether she was at a poorly functioning level and at a constant base before the accident. Ultimately, Dr Strauss agreed with Dr Epstein that it was possible Ms Manuel would have been diagnosed with a psychosis prior to the accident. He qualified that statement by saying that it was equally possible that she could have been diagnosed with a personality disorder.
CONSIDERATION OF THE EVIDENCE
60. The first issue which I need to determine is whether Ms Manuel was suffering from a mental ailment prior to her motor vehicle accident in June 2004. As Drummond J explained in Comcare v Mooi (1996) 69 FCR 439, the word ailment is used in s 4 of the SRC Act as a synonym for disease. He said that the term was intended to cover the whole range of physical and mental illnesses from major to minor. His Honour was of the view that where the harm to the employee did not result in any observable pathology, but which only had some form of psychological consequence, the worker would be able to show the existence of a mental ailment, disorder, defect or morbid condition even though the condition could not be identified with the label of a recognised medical condition. He went on to say, at 444:
… But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
61. The evidence given by Ms Manuel’s sisters suggests that Ms Manuel may only have had unusual personality traits, rather than a mental ailment, disorder or defect. However, the evidence of Ms Manuel’s work colleagues strongly suggests otherwise. In fact, despite Ms Manuel’s sisters indicating to the Tribunal that her interaction with family members until the accident had not significantly changed, their statements to medical staff and to Dr Strauss were significantly different.
62. The progress notes from the Monash Medical Centre in July 2004 indicate a distinct deterioration in her mental condition in probably the two years prior to the motor vehicle accident. Those notes indicate that she was estranged from the family. In the history taken by Dr Strauss he said that Ms Manuel would not respond to her family, would not answer the door or emails and had become significantly withdrawn. Her parents indicated that she did not socialise with the family and that she was afraid of everything. Coupled with that evidence is the evidence of Ms Manuel’s work colleagues. While Ms Manuel attended work at ITSA and, at least on the face of it, was capable of performing her duties, the evidence clearly indicated withdrawal from contact with her colleagues and ITSA’s clients, or the bankrupts with whom she was dealing.
63. The diagnostic criteria for schizophrenia and other psychotic disorders set out in DSM‑IV‑TR include:
Criterion A. Characteristic symptoms: Two (or more) of the following, each present for a significant portion of time during a 1-month period (or less if successfully treated):
1.delusions
2.hallucinations
3.disorganized speech (e.g., frequent derailment or incoherence)
4grossly disorganized or catatonic behavior [sic]
5.negative symptoms, i.e., affective flattening, alogia, or avolition …
Criterion B. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self-care are markedly below the level achieved prior to the onset …
Criterion C. Duration: Continuous signs of the disturbance persist for at least 6 months. This 6-month period must include at least 1 month of symptoms (or less if successfully treated) that meet Criterion A … and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms listed in Criterion A present in an attenuated form (e.g., odd beliefs, unusual perceptual experiences).
64. In my opinion, many of the characteristic symptoms described above were present, to greater or lesser degrees, in Ms Manuel’s behaviour prior to the motor vehicle accident. There are a number of recorded instances of her not responding to questions or simply staring out into space and appearing to be elsewhere. That form of catatonic behaviour appears to have been consistent, at least in the six-month period prior to her accident. Her sister Gloria mentioned this in her evidence and in her discussions with the various medical practitioners. She certainly displayed disorganised speech, evidenced by her rambling and incoherent handwritten statements on her files. Mr Angelopoulos also referred to her inability to adjust to different communication styles and the difficulty she had in communicating with clients. There was ample evidence of her files being disorganised and her apparent inability to return telephone calls or to respond to client letters. She also exhibited negative symptoms including restrictions in the range and intensity of emotional expression (affective flattening).
65. There was ample evidence of her not properly functioning at work and having difficulties with interpersonal relationships and self-care. The sudden changes in the style of clothing and make-up were so significant that a number of the witnesses recalled them. This was clearly not in keeping with her normal behaviour. The evidence was that in the last six months before the accident she had disengaged from social contact with her family, had her telephone disconnected and had withdrawn to the garage, living in a space which was described as being one metre by one and a half metres. The evidence also indicates that various other signs of disturbance became increasingly apparent in the six months prior to the accident.
66. Although Mr Dubé submitted there was also evidence of delusions, I am not satisfied that the evidence discloses delusional behaviour. As I understand it, a delusion is a false belief brought about without appropriate external stimulation and inconsistent with the individual’s own knowledge and experience. Perhaps the only evidence which might be described as delusional behaviour were the two occasions on which Ms Manuel displayed extraordinary fear in circumstances where there was no real basis for being fearful.
67. Although there was some disagreement between the psychiatrists as to whether Ms Manuel would have been diagnosed with schizophrenia prior to the motor vehicle accident, there seemed to be agreement that Ms Manuel was suffering from some form of mental illness. Professor Burrows would have made a diagnosis of schizophrenia. Dr Braun’s opinion was that Ms Manuel had schizoid traits. Dr Epstein believed that she might have been psychotic. Dr Strauss was of the opinion that Ms Manuel would have been diagnosed with a psychosis or a personality disorder.
68. In my opinion, the evidence and the opinions of the psychiatrists clearly points to Ms Manuel having a mental ailment, disorder, defect or morbid condition, prior to the motor vehicle accident. The evidence discloses agreement between the psychiatrists that, in at least the six month period prior to the motor vehicle accident, her condition was outside the boundaries of normal mental functioning and behaviour. Accordingly, I find that, on the balance of probability, Ms Manuel had an existing mental ailment prior to her motor vehicle accident.
EFFECT OF THE MOTOR VEHICLE ACCIDENT
69. Ms Manuel’s claim rests on her establishing that her mental ailment, or an aggravation of that mental ailment, was contributed to in a material degree by her employment with ITSA. In particular, her claim rests on s 6(1)(b)(ii) of the SRC Act. It provides:
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)…
(b)while the employee:
(i) …
(ii) was travelling between his or her place of residence and a place of work, other than during an ordinary recess in that employment; …
70. There was no dispute that Ms Manuel was travelling between her workplace and her place of residence at the time of the accident. Accordingly, I find that Ms Manuel suffered an injury arising out of or in the course of her employment on 11 June 2004. There was no issue about the fact that her physical injuries which resulted from that accident were compensable. In fact, Comcare accepted liability under s 14 of the SRC Act and paid Ms Manuel compensation for incapacity arising out of her physical injuries. Comcare also accepted liability for PTSD arising out of the motor vehicle accident. However, Comcare denied liability for Ms Manuel’s psychotic/schizophrenia illness on the ground that it could not be attributed to her accident.
71. After the motor vehicle accident, Ms Manuel was admitted to the Monash Medical Centre. She had a fractured pelvis and ulna; fractures in her left little finger as well as some lacerations to her face and head and damage to her teeth. About a week after the accident, her manager at ITSA, Mr Angelopoulos, came to the hospital and assisted her in completing a Comcare claim form. The Monash Medical Centre nursing notes indicated that on 24 June 2004 Ms Manuel expressed concern about how she would manage at home following her discharge. The notes indicated she has no family close by. As a result of those concerns, the hospital’s social work staff were contacted to follow up her concerns after she was discharged from rehabilitation.
72. Ms Manuel was admitted to the Kingston Centre on 5 July 2004 for rehabilitation. On her admission to rehabilitation, the social work plan indicated that the social workers should find out more about her personality prior to the accident. She presented as a very quiet woman and the social workers noted that she took long pauses before responding to questions and was occasionally having difficulty in finding the right words. She was difficult to engage with. Notes from the Kingston Centre indicated that she was withdrawn, her affect was flat and she spoke very softly. She also displayed a hesitancy to offer information spontaneously. She was reluctant to discuss her siblings with the social worker.
73. In a note of a case conference on 8 July 2004, staff noted that there was concern about Ms Manuel’s withdrawn behaviour and flattened affect. The nursing sister expressed concern that Ms Manuel was not her usual self, that she wanted to go outside a lot, was very quiet, softly spoken and withdrawn. The Social Work Report of 9 July 2004 indicated Ms Manuel as being quite guarded and with an anxious personality. It caused the social work attendant to query whether Ms Manuel was suffering shock or post traumatic stress.
74. A social work note of 23 July 2004 stated that, on attempting to discuss with Ms Manuel her discharge to her home, she was not helpful discussing options or alternative accommodation. She appeared distracted and unable to follow the conversation at times. She appeared upset and there were long pauses before she responded to questions. The note also recorded that Ms Manuel appeared almost childlike in her responses and stated she did not like change when asked. It was at this point that a referral was obtained for Ms Manuel to be examined by a psychiatrist. This happened on 26 July 2004. By the end of August 2004 the notes indicate that it was difficult to get verbal responses or gestures from Ms Manuel. Her parents, on visiting her, expressed grave concern about her silence.
75. Dr D Mitchell, the Senior Psychiatric Registrar, provided a written report dated 27 August 2004. He reported that Ms Manuel was referred to him for explanation of her slow rehabilitation progress and odd behaviour. He said that the assessment was difficult because Ms Manuel was very guarded and revealed very little to others. He noted that her interactions with staff in the ward conformed to a pattern. She strongly resisted interaction with most staff members, responding with a passive aggressive refusal to speak or interact. She was prepared to work with some members of staff but on her own terms. She tolerated them as long as they maintained a very gentle and uncritical approach. She rejected them angrily as soon as they attempted to set limits or confront her with realities. His diagnosis was uncertain. He said her behaviour suggested a schizoid or schizotypal personality disorder but that she was so guarded about the contents of her thinking that it was not possible to exclude frank psychosis. Dr Mitchell expressed concern about her imminent discharge.
76. Ms Manuel was discharged from the Kingston Centre on 9 September 2004. A return to work proposal was drawn up. It was intended that she return to work on 20 September 2004.
77. On 20 September 2004, instead of attending her place of work, Ms Manuel went to the David Jones store at the Chadstone Shopping Centre, where she attempted to buy expensive furniture amounting to something over $20,000. When her credit card was rejected, she became distressed, sat on a sofa and refused to leave. She was taken the Emergency Department at Monash Medical Centre and was then admitted as an involuntary patient to the psychiatric ward. She was discharged after about three weeks but was later readmitted to the psychiatric ward on 3 November 2004. On 13 July 2005 the Victorian Civil and Administrative Tribunal made an order appointing an administrator for Ms Manuel under the Guardianship and Administration Act 1986.
78. Ms Manuel was examined by a psychiatrist, Dr P G Smith, on 20 April 2005. He provided a report dated 3 May 2005. He said that on examination, Ms Manuel:
… appeared slightly disheveled [sic] and had a markedly fixed immobile expressionless facial appearance.
Poverty of thought was present and there was little spontaneous gestural expression. Although she was generally cooperative, she appeared guarded and rather suspicious when questioned about psychotic ideations.
Her thinking appeared to be rather vague and although there was no florid thought disorder, she appeared perplexed by some of the interviewer’s questions. There was evidence of intermittent thought blocking.
Her affect was markedly flattened. There was virtually no reactivity and there was a monotonous intonation with little variability in her speech.
… there was evidence of auditory hallucinations.
79. Dr Smith noted that Ms Manuel also reported significant psychotic ideation of a persecutory nature. She said she feared burglars and intruders and expressed a belief that persons unknown had a malevolent intent towards her. She also expressed the delusion that she believed the media were talking about her. Dr Smith diagnosed schizophrenic disorder. He said Ms Manuel displayed the presence of behavioural disturbance, thought disorder, disorder of affect, and perceptual abnormalities which indicated a serious psychiatric condition. His prognosis was guarded because of the persistence of amotivation and blunted affect.
80. The evidence clearly discloses that soon after the motor vehicle accident, Ms Manuel’s psychological state had altered substantially. In fact, subsequent psychiatric reports indicated that her psychiatric state continued to deteriorate. For example, Dr Braun said in a report dated 4 January 2007 that she was blunted and appeared preoccupied. There was a marked psychomotor retardation. She described feeling fearful and receiving messages from the television, which told her not to take her medication. She was fearful to leave her accommodation as she felt that cars were following her. Despite extensive treatment and medication, Ms Manuel continued to suffer from auditory hallucinations and she remained fearful of cars in the street.
81. Given what appears to have been rapid deterioration in her mental condition following the motor vehicle accident, it was inevitable that an attempt would be made to connect her motor vehicle accident with her marked decline in mental functioning. There was no doubt, and I did not understand it to be in contention, that Ms Manuel was, after the accident, and has been since the accident, wholly unfit for any employment. In fact, she is unable to live independently as she is not able to look after herself properly when it comes to grooming and nutrition. Arrangements were therefore made for her to be moved to special supported accommodation.
82. The important question for me to address is whether the motor vehicle accident affected her mental functioning in any way. As it was put by Mr Dubé, Ms Manuel is required to:
… show more than that the employment was merely the scene in which the development of the condition took place, a purely inert factor upon which the applicant’s illness focused its attention.
83. Further, if I were to find that Ms Manuel’s mental ailment was affected by the motor vehicle accident, which, by virtue of s 6(1)(b)(ii) would be taken to have arisen out of or in the course of her employment, then I must decide whether the accident could be described as providing a material contribution to the aggravation of an existing ailment.
84. Comcare relied substantially on the evidence of Professor Burrows. Professor Burrows interviewed Ms Manuel on 24 June 2008 and provided a written report of the same date. In his written report, in answer to questions posed by solicitors for Comcare, Professor Burrows said that on the balance of probabilities, it was unlikely that Ms Manuel’s condition arose as a result of the motor vehicle accident. This was because she had prodromal signs of the illness as far back as 1994. Although Professor Burrows was of the opinion that the motor vehicle accident may have exaggerated or exacerbated her symptoms, he was of the view that her illness was developing prior to the accident and Ms Manuel would more likely have gone on to develop florid symptomology even without the accident.
85. Professor Burrows provided a supplementary report dated 17 August 2009, after having had the benefit of reading reports prepared by Dr Strauss and Dr Epstein. He disagreed with Dr Strauss’ view but agreed with Dr Epstein’s view that it was possible Ms Manuel may have gone on to develop her schizophrenia illness even in the absence of the accident. He did not consider that Ms Manuel suffered from PTSD. He said:
I agree, that she was a vulnerable woman with early signs of significant psychiatric illness at the time of the accident and she [had] prodomal [sic] symptoms of thinking, mood, affect and perceptual disturbances. Monash Medical Centre report confirmed that she had been bizarre “in 1990”. The prodomal [sic] period can vary dramatically between different individuals and it depends whether they consult a psychiatrist. Many people in the community have Schizophrenia who do not even receive a diagnosis or receive treatment but there is no doubt about this lady’s diagnosis. The is a quote that Schizophrenia is genetically determined.
86. Professor Burrows provided a third report dated 22 September 2008. In answer to a question whether on the balance of probability, rather than possibility, the motor vehicle accident aggravated a pre-existing condition, Professor Burrows wrote:
It is very controversial whether accidents contribute more than the underlying disorder. It is accepted that schizophrenia is a generally predetermined condition.
87. In the course of giving concurrent oral evidence, Professor Burrows initially maintained that the motor vehicle accident was only a secondary phenomenon because, in his view, Ms Manuel was deteriorating mentally in any event. In his opinion, there is very poor evidence to show that major accidents have a significant effect on schizophrenia. After some discussion in the course of the concurrent evidence, Professor Burrows said:
I couldn’t say that emphatically, I’m not saying the accident can’t be an aggravating factor, though I still believe she had the illness. That’s where we get into trouble, sir, we haven’t discussed that as a course – I still believe and so do most researchers in the area of schizophrenia, say it’s predominantly a genetic predetermined condition.
88. Professor Burrows made it clear that he was not saying that stress did not play a role in every disorder. He agreed that it did. He explained that in psychiatry, psychiatrists look at the biological, physiological, social, cultural and financial aspects of a given individual. He said he was not surprised, on the evidence he was given, that Ms Manuel ended up the way that she had. He did, nevertheless, accept that stress was an aggravating factor. Professor Burrows summed up his position when he said:
Well, in most cases where you have something like that, it’s not as prolonged. The trouble is the person who is developing that illness is going down a slippery slope anyway, and you can’t emphatically say yay or nay. But if you’d have asked me – I mean, I think the message that I was trying to get across was I think the accident is a factor, but not a major factor in this girl’s illness, and that’s where we disagree.
89. In the concurrent oral evidence session, Dr Braun said that he had the advantage of seeing Ms Manuel a few months after the accident. In his opinion, schizophrenia is not a typical illness and it can present in many ways. He explained that it could manifest as a slow, insidious change in a person where they become a little bit withdrawn. While in other circumstances, it could present more acutely. Although he accepted that prior to the motor vehicle accident there was evidence of a change in behaviour, he said:
However, after the accident, I’ve got to say that this lady was probably one of the most unwell people I’ve ever seen and the usual thinking would be that somebody who gets a schizophrenic illness in their 50s would have a reasonably good prognosis. This lady was on two different anti-psychotics and there was really no change; she was fearful. She couldn’t get her thoughts out. She was getting messages, she was hearing voices and really, despite two different anti-psychotics, there was no change.
90. In Dr Braun’s opinion trauma is an idiosyncratic thing. It affects different people in different ways. In his opinion, the motor vehicle accident experienced by Ms Manuel certainly was a contributing factor here. When it was put to Dr Braun that Ms Manuel was not answering telephone calls or meeting with clients in her place of work which resulted in complaints about her behaviour some three to four times a week, Dr Braun agreed she was having problems. However, he said that when he saw her:
… I think they would have called an ambulance if she had have been behaving like that. So I think psychosis is not an all or none thing, you know.
91. When asked how you distinguish between the effects of the disease acting on the motor vehicle incident as opposed to the motor vehicle incident affecting the disease, Dr Braun said it was known that people who are less healthy usually deal with incidents in a less satisfactory way. Therefore, in his view, Ms Manual would have been disadvantaged because of an underlying illness. Dr Braun accepted that Ms Manuel had schizoid traits before the motor vehicle accident and that she may have been described as a bit of an odd character, although she seemed to have become worse in her late 50s. Following the accident, she became extremely unwell.
92. Dr Epstein provided three written reports as well as oral evidence in the concurrent session. He examined Ms Manuel in the presence of her sister on 19 April 2007. In his report dated 20 April 2007 Dr Epstein recounted a detailed history including observation of her unusual behaviour prior to the accident and the fact that she was a rather isolated person who rarely initiated contact with her family. Although Dr Epstein thought that Ms Manuel may have gone on to develop the schizophrenia illness even in the absence of the motor vehicle accident, he said this was merely supposition and there was no indication of any deterioration in her mental functioning in the years prior to the accident. He then said:
It is said that stress plays little part in the development of schizophrenia illness. Such statements are made based on statistical data referring to populations. With regard to individual cases such statistics may have less relevance. What is undoubted is that prior to the accident she was a competent effective person who was working in a responsible job and coping with renovating a house. After the accident her mental state markedly deteriorated and that deterioration has continued. She has shown some cognitive changes although her head injury, if any, was very mild.
93. Dr Epstein concluded his report by stating that the motor vehicle accident was a major factor leading to the development of her paranoid schizophrenic illness and that the effect has continued.
94. In his second report, dated 9 May 2007, Dr Epstein also said that Ms Manuel had developed a mild PTSD, which had caused her concern and limited her activities. In his opinion, Ms Manuel had a psychiatric impairment of 50 per cent assessed under the Clinical Guidelines to the Rating of Psychiatric Impairment prepared by the Medical Panel (Psychiatry) Melbourne, Victoria, October 1997. In his view, her psychiatric impairment arose entirely from the effects of the motor vehicle accident. He said Ms Manuel possibly had a vulnerability to developing schizophrenic illness but had not done so prior to the accident and but for the accident may not have done so.
95. In his third report, dated 16 March 2009, Dr Epstein referred to a recent supplement to the Medical Journal of Australia (Volume 190, Number 4, 16 February 2009) entitled Pathways to Schizophrenia including an article Characterising Novel Pathways to Schizophrenia by Professors Ian Hickie and Patrick McGorry. In that article, the authors state:
Currently, simplistic genetic or developmental approaches are giving way to relevant polygenic models, or are approached based on more complex gene-environment interactions. …
The traditional notion that there is little variance in incidence of schizophrenia is not consistent with more recent epidemiological analyses. The latter suggest the likelihood of a wide range of potential environmental risks.
96. Dr Epstein said that in his clinical experience, it was not uncommon to see people who have been the victims of trauma develop a psychotic illness. In his opinion, there appeared to be good evidence in the literature that there was a relationship between trauma and psychosis. However, he said that if Ms Manuel did have a pre-existing psychotic illness the role of trauma would be less significant than it might have been otherwise.
97. In the concurrent oral evidence session, Dr Epstein said that he had seen the statements from fellow employees subsequent to writing his reports. Having read those witness statements, he said it seemed to him to indicate a significant deterioration in behaviour before the accident. He said those statements did cause him to rethink his view about the situation. Dr Epstein said he believed Ms Manuel did have prodromal signs prior to the accident. Nevertheless, he was of the opinion that there was a profound change in Ms Manuel’s level of function after the accident. Dr Epstein said that it could never be known what would have happened if the accident had not occurred.
98. Dr Epstein was of the opinion that the motor vehicle accident undoubtedly played some part in the development of Ms Manuel’s schizophrenia. Although he agreed that there was some deterioration in Ms Manuel’s behaviour before the accident, he was of the view that there was a dramatic deterioration shortly after the accident. He said that Ms Manuel would not have reached the point she reached in September 2004, even if she had been on a downward trajectory, but for the accident. The slope of decline changed dramatically after the accident.
99. Dr Epstein also commented on reported studies regarding concordance rates between identical twins regarding schizophrenia. He said that although twins have the same genetic loading, at worst, 20 per cent of twins do not develop schizophrenia. Finally, Dr Epstein said that given the problems Ms Manuel was having prior to the accident, he was of the view that she may have gone on to develop a schizophrenic illness quite apart from the accident.
100. In his written report dated 12 December 2007 Dr Strauss reported that Ms Manuel was unable to communicate adequately and had great difficulty expressing herself. Her memory and concentration were poor, she could not organise herself and was living in special accommodation with high level care. Dr Strauss was of the opinion that Ms Manuel was suffering from some form of psychotic condition; either a schizoaffective disorder or schizophrenia. He did not believe Ms Manuel was suffering from PTSD. He did not think that Ms Manuel had any psychiatric problems secondary to physical injuries.
101. Dr Strauss was aware there was evidence to suggest that Ms Manuel had previously manifested abnormal psychological behaviour. However, he was of the opinion that Ms Manuel did not show evidence of withdrawal and isolation at a pathological level before the accident in 2004. Dr Strauss believed that following the accident, there was a severe deterioration in her mental state and she ultimately manifested psychotic symptomology and behaviour. This worsened condition had continued since. In his opinion, there was little doubt that the motor vehicle accident accelerated Ms Manuel’s decline and that it remained a contributing factor to her current severe psychiatric problems. He said he believed that the accident could not be excluded as an aggravating and ongoing factor, perpetuating her problems.
102. In the concurrent oral evidence session, Dr Strauss indicated that he had seen the witness statements from Ms Manuel’s work colleagues. He said that in his opinion, the accident experienced by Ms Manuel was a major event in her life and it was damaging, destructive and quite stressful. In his opinion, that needed to be taken into account. Dr Strauss accepted the evidence indicated that prior to the accident Ms Manuel was functioning at a level that was not very healthy. However, it was not possible to say that there was a gradual deterioration of Ms Manuel’s condition before the accident. However, he was certain that there was deterioration in her condition after the accident.
103. Dr Strauss was also of the opinion that environmental factors are important in any physical or psychological condition. He did not accept that the fate of every schizophrenic was written in their genes. In his view, psychosocial factors were always important in psychiatric conditions. He said that environmental factors, such as accidents, have a frightening effect on people and can affect the manifestation of the disease. While he agreed with Professor Burrows that there is a strong genetic loading in schizophrenia, he nevertheless maintained the view that environmental factors should be taken into account in conditions like schizophrenia.
104. In Ms Manuel’s case, Dr Strauss was of the view that her accident was a significant trauma because within three months of the accident Ms Manuel was involuntarily admitted to a psychiatric hospital. Dr Strauss was also of the view that the longer the prodromal period, the more significant was the accident, because Ms Manuel had been coping with the symptoms or the difficulties for a number of years and then suddenly she found herself in a psychiatric hospital. In his view, it was more than just a coincidence and the accident was a significant factor in her deterioration.
105. In my opinion, the evidence of all psychiatrists who have examined Ms Manuel is that although schizophrenia has a strong underlying genetic basis, it cannot be said that environmental factors, such as trauma, play no part in the condition of a person who may be genetically predisposed to schizophrenia. In my opinion, there is more than adequate evidence that Ms Manuel, prior to the accident, did exhibit prodromal signs of some form of psychotic disturbance.
106. Of the four psychiatrists who provided reports and gave oral evidence concurrently, only Professor Burrows predicted that it was likely that Ms Manuel would have been diagnosed with schizophrenia prior to the accident. Professor Burrows explained that there are many people with schizophrenia working out in the community. Sometimes they can do things which are quite logical and rational and at other times they are quite illogical and irrational. Although the other psychiatrists were all of the view that Ms Manuel suffered from some form of psychiatric illness prior to the accident, they did not believe that it would have been possible to diagnose Ms Manuel with schizophrenia prior to the accident. All of the psychiatrists expressed difficulty in making a diagnosis in Ms Manuel’s circumstances.
107. However, whether Ms Manuel would have been diagnosed as suffering from schizophrenia prior to the motor vehicle accident is not significant in my view. I am satisfied, and find, that Ms Manuel did suffer from a psychotic illness, however described, prior to her motor vehicle accident on 11 June 2004.
108. As for the effect of the motor vehicle accident, all the psychiatrists except Professor Burrows were of the view that because of Ms Manuel’s rapid mental decline following the accident, it had some effect in aggravating or accelerating her mental disease. Dr Strauss and Dr Braun were strongly of the view that the accident played a significant role in Ms Manuel developing florid symptoms of schizophrenia and Dr Epstein was of the view that there was a dramatic deterioration in her mental functioning after the accident and within a short period of time after that accident. Although Professor Burrows held what I understood to be a strong view that the accident played no part in the development of her disease, he was nevertheless prepared to accept that the accident may have been an aggravating factor to the schizophrenia which he was of the view existed prior to the motor vehicle accident.
109. In my opinion, the weight of evidence in this case points to the fact that the motor vehicle accident suffered by Ms Manuel on 11 June 2004 did cause a marked deterioration in her mental state. Although she was not functioning as well as she might have been expected to function prior to the motor vehicle accident, she was nevertheless capable of attending her office and working. However, after the motor vehicle accident, her deterioration was so significant that an Administrator had to be appointed to administer her estate and she required special accommodation and continuing care. Moreover, given that the expert psychiatric evidence was that environmental factors, including trauma, could be an aggravating factor, I find that Ms Manuel’s motor vehicle accident was significant in causing her rapid mental decline.
MATERIAL CONTRIBUTION
110. Both parties approached this case on the basis that Ms Manuel’s motor vehicle accident may have caused an aggravation of an existing ailment, namely schizophrenia. As I have said above, whether Ms Manuel suffered from schizophrenia or some other form of psychotic ailment prior to the motor vehicle accident, does not matter for the purpose of this analysis. I am required to determine whether the aggravation of Ms Manuel’s mental ailment was contributed to in a material degree by her employment.
111. The word aggravation is a defined term and it includes acceleration or recurrence (s 4(1) of the SRC Act). Although the words aggravation and acceleration represent two different ideas having different shades of meaning, as Hill J said in Casarotto v Australian Postal Commission (1989) 86 ALR 399, there is some overlap between the two when used in s 29 of the Compensation (Australian Government Employees) Act 1971 (the Act). Although that section of the Act is slightly different to the current SRC Act, the words appear in the same context. After reviewing a number of cases which have dealt with that expression in the context of Compensation Acts, Hill J said, at 405:
These quotations illustrate what appears in any event from the ordinary English meaning of the words “aggravation and acceleration”, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.
112. A question also arises about the meaning of the expression material contribution. Finn J, in Comcare v Sahu-Khan (2007) 156 FCR 536, said at 542:
… It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as “material”: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term “material” in the phrase “in a material degree” is used in the SRC Act. The legislative history of this definition makes this plain.
There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word “materially” in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is —
4. In a material degree; substantially, considerably.
113. Evidence regarding the deterioration of Ms Manuel’s mental condition is abundant. Although, as I have found, Ms Manuel exhibited unusual behavioural traits prior to the accident and was suffering from some form of mental ailment, and she clearly had difficulties with social interaction and dealing with clients at work, she was nevertheless, functioning. However, within about three months after the motor vehicle accident, she had become so incapacitated that she could not groom or feed herself properly. An Administrator had to be appointed to her estate and she had to be confined in special accommodation requiring constant professional care. There was a very marked degree of deterioration in her day-to-day functioning following the motor vehicle accident.
114. Accordingly, I find that the motor vehicle accident experienced by Ms Manuel on 11 June 2004 materially contributed to the mental ailment which was clearly present prior to the accident. That finding, of itself, entitles Ms Manuel to compensation under the SRC Act. However, as was submitted by Mr Dubé, the question which arises is whether the aggravation of Ms Manuel’s mental condition was merely temporary. The reason is, as Professor Burrows said in his 24 June 2008 report:
The accident may have exaggerated or exacerbated her symptoms, but it would appear that the illness was developing prior to that, and that she would more than likely to have gone on to develop florid symptomatology even without the accident. …
115. Dr Epstein said in oral evidence that it can never be known what would have happened if the accident had not happened. He suggested, given her work performance appeared to have been deteriorating, that she may have been put into a less stressful work environment and she may have been able to better cope in that setting. Dr Epstein’s opinion was that Ms Manuel would not have reached the point she reached in September 2004 even if she was on a downward trajectory but for the accident. He was of the view that her decline might have been relatively slow and she might have eventually reached the level she did in September 2004, but at a considerably later period of time. Nevertheless, he was of the view that it was likely that Ms Manuel would have gone on to develop some form of psychotic illness. However, according to Dr Epstein, that did not necessarily lead to the conclusion that Ms Manuel would not have been able to continue working. He said that people can have a schizophrenia illness and continue to work.
116. In his written report Dr Strauss said there was a possibility that if the accident had not occurred, Ms Manuel’s psychiatric state may not be as severe as it is now. In his oral evidence, Dr Strauss said there was a possibility, if not a probability, that the accident made her condition worse. In his opinion, the fact that she was badly injured, hospitalised and taken out of an environment that she knew, contributed to making it worse. He said that in a vulnerable person, that itself would have had a distressing effect. He was of the view that it would have added to the stressful nature of the experience and he therefore believed that her condition worsened as a result of the trauma.
117. As I understood Mr Dubé’s submission, if I were to find that Ms Manuel’s mental ailment was aggravated by her employment, I should find that the aggravation was only a temporary aggravation, as she would have gone on to exhibit the debilitating symptoms which she now experiences irrespective of the motor vehicle accident. Although Professor Burrows was of that view, he was the only psychiatrist to express that view. Doctors Epstein and Strauss did not share that view and Dr Braun offered no opinion.
118. In any event, the parties did not draw my attention to cases which have dealt expressly with the fact that an aggravation of an existing condition may be permanent. As long ago as 1943, the courts recognised that an aggravation may be permanent. In Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157, Jordan CJ, Davidson and Herron JJ raised that possibility. In that case, the applicant, Mr Salisbury, made a claim in respect of pulmonary fibrosis due to the inhalation of dust in a coal mine. On medical examination, it was found that Mr Salisbury’s pulmonary fibrosis did not cause him to be incapacitated for his employment. However, Mr Salisbury also suffered from myocardial degeneration with early signs of congestive heart failure. There was no connection between this disease and his employment. The Commission, which was the body determining the employer’s liability, found it was reasonable that Mr Salisbury’s rate of progress of myocardial degeneration was accelerated by the conditions of his employment. However, the Commission determined that the period of acceleration was limited to a period of some eight months and it fixed a date as the termination of the period of acceleration.
119. On appeal, the Full Court of the Supreme Court of New South Wales said that the issue before it was to consider whether Mr Salisbury, who was found to be suffering from a progressive non-employment related disease, which had not yet incapacitated him, would, in its ordinary course, eventually incapacitate him. The Court distinguished an employment injury which may be purely temporary in its effects from one which was permanent in its effects. It posed the example where a worker suffering from a not yet incapacitating non-employment related heart disease, cuts his hand while working and is unable to resume work only because the cut is not healed. The Court pointed out that there are two scenarios: the first is whether the employment injury is purely temporary in its effects; and the second whether it may be permanent in its effects. In the case where the injury may be permanent in its effects, the Court said, at 162:
… for a time at least, it is the addition of the effects of the employment injury which produces incapacity, or an increased incapacity, which would not otherwise have existed. So long as the effects continue, the fact that a non-employment injury supervenes (in the form of an accentuation of the non-employment disease), sufficient of itself to produce the incapacity or increased incapacity, does not deprive the worker of his right to continue to receive compensation. …
120. The High Court of Australia in Darling Island Stevedoring and Lighterage Co v Hankinson (1967) 117 CLR 19 also dealt with this issue. In that case, Mr Hankinson, a wharf labourer, felt a sharp pain between his shoulder blades when lifting a bale of paper with a hook. Although he received some medical attention and continued working on the day of the injury, he did not work after that day because he was unable to do so. Within three weeks he was paralysed and unable to walk. Although unaware of it, Mr Hankinson was, prior to the injury from lifting the bale of paper, suffering from a staphylococcal infection of a portion of the spine. The disease had advanced to the degree that two of his vertebrae became honeycombed and so weakened that they were ready to collapse even upon a slight exertion. Mr Hankinson’s lifting the bale of paper had caused them to collapse. As a result, he became incapacitated for work.
121. This matter came to the High Court on appeal from the Supreme Court of New South Wales. The case was brought to the Supreme Court on the grounds that Mr Hankinson’s incapacity resulted from an aggravation, acceleration, exacerbation or deterioration of his pre-existing non-employment disease (the staphylococcal infection of part of his spine). And, that in any case, the only incapacity which could be regarded as having resulted from any aggravation, acceleration, exacerbation or deterioration of the infection of the spine, was of limited duration. That is to say, it was limited to that period between the collapse of the vertebrae because of the work injury and the time at which the disease of its own course would have caused the vertebrae to collapse. Although all members of the High Court dealt with the matter as an aggravation or acceleration of Mr Hankinson’s spinal disease, they all commented that they would have treated the case as one of injury simpliciter rather than an acceleration of a pre-existing disease. I have more to say about this below.
122. Barwick CJ referred to Salisbury’s case and agreed with the legal reasoning and conclusions drawn by that Court. His Honour said, at 26 – 27:
An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s. 9 of the Act.[Workers Compensation Act 1926 (NSW)]. The question is whether because of the nature of such an injury, the basic principles to which I have referred in connexion with other injuries must be in some fashion modified or qualified. If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease. …
123. Although the New South Wales Workers’ Compensation Act 1926 referred to acceleration of the disease, it seems to me that an aggravation or acceleration of an ailment is no different. Barwick CJ concluded, at 27:
I am unable myself to abstract the acceleration as if it were a causative entity apart from the disease in its accelerated state. Here, analysing the facts as did the Commissioner, the work accelerated the progress of the spinal infection. Incapacity resulted. It resulted from the then – accelerated – condition of the infection. That incapacity was permanent – it was not temporary. In my respectful opinion, it is not permissible so to isolate the acceleration of the disease as to attribute a part only of that permanent incapacity to the acceleration.
124. Taylor J said that even if Mr Hankinson’s rights were to be determined under the aggravation provision in s 6 of the New South Wales Workers’ Compensation Act 1926, although he agreed that the incapacity resulting solely from the aggravation of an existing disease must be limited to the incapacity produced by the aggravation, he was not of the view that it followed the aggravation of a disease may not, by itself, cause permanent incapacity. He concluded, at 31:
… This could be said to have been the position in the present case for, if what happened on 3rd September 1964 was no more than an aggravation of the respondent’s disease, it was the aggravation of that disease which directly resulted in the respondent’s incapacity on and after that date. In that case, again, it is beside the point to say that if the aggravation had not occurred total incapacity or death would at some later time have resulted from the natural progress of the disease.
125. Menzies J said that in the case of a worker suffering an acceleration of an existing disease which would in itself in time result in incapacity for work, the real question is whether any award should be made in favour of such a worker which was not limited to incapacity for work resulting from the acceleration of the disease. He offered this caution, at 32:
… It might be thought that common sense would require an affirmative answer to this question, but it is well to keep in mind that there is no necessary connexion between common sense and the provisions of the workers’ compensation legislation.
126. Owen J was also of the view that it was not to the point to say that Mr Hankinson’s pre-existing condition predisposed him to such an injury or that unless diagnosed and treated in time, his condition would sooner or later have produced such a collapse and resultant incapacity.
127. More recently, Burchett J, in Martin v Australian Postal Corp [1999] FCA 655 applied the law as stated in Hankinson’s and Salisbury’s cases. In that case, Burchett J was dealing with the SRC Act, and in particular s 4 as it exists in its present form. His Honour noted that in the current SRC Act, there is a definition of permanent which he said does not mean to last forever, but likely to continue indefinitely. In this case, Martin was a Postal Delivery Officer who fell off his motorcycle when chased by a dog. He landed injuring his right shoulder. After receiving cortisone injections, he managed to keep working although the symptoms became slightly more severe. About 18 months after that accident, Mr Martin had another fall from his motorcycle again hurting his right shoulder and also his right hand. His shoulder settled down after a few days but then, in the following year became more painful with its use.
128. The Tribunal found that Mr Martin suffered degenerative change in his right shoulder possibly as a result of heavy physical work he had engaged in prior to his work with the Australian Postal Corporation. However, this condition remained asymptomatic until rendered symptomatic by his second motorcycle accident. The Tribunal found it was impossible to say when exactly Mr Martin’s symptoms would have manifested themselves had the motorcycle accidents not occurred. Mr Martin’s claim was brought on the basis that there was an aggravation or acceleration of a non-work caused disease, namely, gleno-humerial joint arthritis and an impingement syndrome associated with calcific tendonitis.
129. Burchett J referred to Salisbury and Hankinson. Despite the differences in the New South Wales Workers’ Compensation Act 1926 and the SRC Act, His Honour said at [24]:
It is obvious that this reasoning could equally be applied to the Act with which I am concerned, which also contains provisions (noted above) bringing an aggravation or acceleration within the statutory concept of an injury.
He distinguished the reasoning of Hill J in Casarotto. In that case, the employee was suffering from a degenerative spondolitic disease of the lumbar spine, which he claimed had been aggravated by a series of work-related incidents. However, in that case, each of the incidents was described as something from which Mr Casarotto had completely recovered or the effects of which were short-lived or fairly trivial. In other words, this was a case of a temporary aggravation as described in Salisbury. Burchett J said, at [28]:
In my opinion, Casarotto should not be understood as trenching upon the well accepted principle stated by Barwick CJ in Darling Island Stevedoring & Lighterage Co Ltd v Hankinson, but as an instance of minor injuries that did not produce any acceleration or significant aggravation of the underlying condition. The tribunal of fact had held such aggravation as had occurred to have been but evanescent in its effects. Casarotto was quite a different case from the present, where Mr Martin's asymptomatic condition was made symptomatic, not just for a time, but so as to continue increasingly to cause pain and disability thereafter.
130. I am of course mindful of the fact that in Martin’s case, Burchett J was dealing with an application under sections 24 and 27 of the SRC Act. In the matter before me, the reviewable decision is one which has been made solely in respect of s 14 of the SRC Act. I have referred to it simply to demonstrate the way in which the court has applied the High Court decision in Hankinson’s case where the evidence indicates that there has been a permanent aggravation of a disease. While there has been no application in Ms Manuel’s case for compensation under s 24 of the SRC Act in respect of permanent impairment arising out of a permanent aggravation, given that all of the psychiatrists say Ms Manuel’s prognosis is poor, it is highly likely that consequent upon this claim, there will be a claim for permanent impairment.
131. In my opinion, Ms Manuel’s case is indistinguishable from that of Mr Hankinson. The fact that Ms Manuel’s condition was psychological and Mr Hankinson’s physical does not alter the principle on which this case should be decided. Ms Manuel clearly had a form of psychotic illness prior to the motor vehicle accident. The progression of that illness was, according to the expert psychiatric evidence, uncertain, although Professor Burrows was of the view that it was likely Ms Manuel’s condition would have deteriorated irrespective of the accident. That was simply his prediction.
132. When, in the concurrent oral evidence session, I put to Professor Burrows that Ms Manuel, given the way she was going prior to the accident, would have finished up as she was in September 2004, he said I couldn’t say emphatically, I’m not saying the accident can’t be an aggravating factor though I still believe she had the illness. In his view, Ms Manuel was going down a slippery slope anyway and he was of the view that she had an 80 per cent chance of deteriorating.
133. Dr Epstein was of the view that even if Ms Manuel was on a downward trajectory prior to the accident, he would have been surprised if it had been more than a relatively slow decline. He would have expected her to reach her current level at a considerably later time if that was going to occur. He was of the view that, irrespective of the accident, it was likely that she would have gone on to develop some form of psychotic illness. However, her condition would not have deteriorated to the extent that it had were it not for the motor vehicle accident. Dr Epstein also pointed out that there are people who have prodromal signs and they do not go on to develop a schizophrenic illness. People also can have a schizophrenic illness and continue to work. Dr Strauss was of the opinion that there was a possibility that if the accident had not occurred, her psychiatric state may not have been as severe as it is currently.
134. As in Mr Hankinson’s case, Ms Manuel’s incapacity for work resulted from an aggravation or acceleration of her existing condition. As in Hankinson’s case, the aggravation appears to be permanent. The fact that Ms Manuel may have arrived at the same state of incapacity regardless of the accident is not to the point. The fact that her incapacity which has resulted from the aggravation is permanent does not mean that liability for her incapacity must cease at a point, even if it could be determined, where the natural progression of that disease would have resulted in total incapacity for work. Accordingly, I find that Comcare is liable to pay Ms Manuel compensation in accordance with s 14 of the SRC Act.
135. I have referred above to the fact that the High Court in Hankinson’s case said it should not have been treated as a case of an aggravation of an existing injury. In fact, the Court was of the opinion that Mr Hankinson suffered an injury in the unextended sense of the statutory definition which led to his incapacity. By that expression, I understood the High Court to be saying that Mr Hankinson suffered an injury simpliciter, rather than an aggravation of an existing disease, which, due to the statutory definition, is regarded as an injury for the purposes of the New South Wales Workers’ Compensation Act 1926.
136. According to Barwick CJ, any pre‑existing weakness, disease or predisposition are immaterial in the case of an injury simpliciter. He referred to Salisbury’s case and said that the immateriality stemmed from basic concepts of workers’ compensation. He referred to several other cases and said, at 25- 26:
… The relevant question in the case of an injury is whether incapacity resulted from it. It is not, as in the case of an action at law based on negligence, what damage has the injured party sustained. Thus cases such as Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, in so far as they deal with the possible effect of a pre-existing condition upon the amount of an award of damages in such an action, are not in point in connexion with a claim under the Workers' Compensation Act.
The only question in such a case, according to Barwick CJ, was whether the injury had ceased to cause incapacity.
137. Taylor J said that Mr Hankinson did not suffer a mere aggravation, acceleration, exacerbation or deterioration of an existing disease, but rather what he suffered was a personal injury of a physical nature. This was notwithstanding the fact that he was suffering from a disease which made it probable that, if the injury had not occurred and the disease had run its course undetected and untreated, he would have ended up in the same way (30 – 31). He went on to say at 31:
The form of the definition has altered since Hussey's Case [(1959) 102 CLR 482] and I do not find anything in that case which would deny compensation to a worker, or his dependants, who, though debilitated by disease and, consequently, in some respects more injury prone, suffers a personal injury resulting in death or incapacity for work. And if either event occurs as the result of the injury it is nothing to the point to say that the inevitable progress of the disease would sooner or later have resulted in incapacity or death. …
138. In Hankinson’s case, Owen J referred to the consensus of medical opinion which was that Mr Hankinson’s spinal infection would, unless his condition had been discovered and treated successfully, in the ordinary course of events have worsened; and that would ultimately have caused his vertebrae to collapse and he would have become incapacitated. However, prior to the disease running its course, the act of Mr Hankinson lifting a heavy package of paper pulp caused his vertebrae to collapse due to their diseased state. He said that it was not to the point that Mr Hankinson’s pre-existing condition predisposed him to such an injury or that unless the disease was diagnosed and treated in time, his condition would sooner or later have produced a collapse and resultant incapacity.
139. Owen J also found it unnecessary to go to the extended meaning of the word injury. He said, at 34:
… The collapse of the vertebrae was as much an "injury" in the ordinary sense of the word as would have been the fracture of a bone in the respondent's leg, a bone which had been weakened or "honeycombed", as one doctor described it, by some infective process. …
Owen J said that the evidence was plainly capable of justifying the conclusion that the strain of lifting the package had caused Mr Hankinson’s vertebrae to collapse, causing his back infection to spread, which resulted in the injury to his spinal cord and subsequent paralysis.
140. In my opinion, Ms Manuel’s case could have been argued on a similar basis. In fact, at the commencement of this hearing, I queried whether the case was being brought on the basis of an injury simpliciter or the aggravation of an existing ailment. I was told it was the latter. However, it seems to me that there is no reason why Ms Manuel’s current state of incapacity cannot be said to arise directly out of an injury. There are many workers’ compensation cases in which workers have suffered physical injuries followed by some form of mental illness, commonly depression. While the motor vehicle accident did not cause Ms Manuel’s schizophrenia, the evidence inescapably leads to the conclusion that her current incapacity arose directly out of the accident.
141. Although she was a person who may have been predisposed to developing a schizophrenic illness to the extent which she now exhibits, that does not alter the fact that her incapacity for work resulted from the motor vehicle accident. In my view, the evidence establishes, on the balance of probability, that Ms Manuel’s schizophrenic illness progressed to the stage where she was incapacitated for work as a result of the motor vehicle accident.
CONCLUSION
142. This case was run before me on the basis that Ms Manuel suffered an aggravation of an ailment, namely a psychotic illness, which was contributed to in a material degree by her employment. She was struck by a motor vehicle when crossing a road on returning to her home after work. At the date of that accident, s 6(1)(b)(ii) of the SRC Act deemed her injury to have arisen out of or in the course of her employment. Although Ms Manuel displayed prodromal signs of a mental ailment prior to the accident, her condition shortly after the accident deteriorated dramatically. According to the expert psychiatric evidence, she is now totally incapacitated for any employment. On the balance of probability, I have found that her existing mental ailment was aggravated by the motor vehicle accident, therefore satisfying the definition of disease in the SRC Act. An injury for the purposes of the SRC Act extends to a disease as that term is defined. Accordingly, Comcare is liable to pay compensation in accordance with s 14 of the SRC Act in respect of Ms Manuel’s mental injury.
143. Although this case was not run on the basis that Ms Manuel’s injury could be described as an injury simpliciter, in my view, it was open to her to run the case on this basis. I am not obliged to limit my determination to the case as articulated by an applicant, if the evidence and material which I have accepted into evidence raises a case on a basis not articulated by the applicant (see Grant v Repatriation Commission (1999) 57 ALD 1). In my opinion, Ms Manuel’s incapacity arose out of the mental injury sustained as a consequence of the motor vehicle accident. The fact that she was predisposed to developing schizophrenia does not alter that position. By approaching the problem in this way, I arrived at the same conclusion I have reached above regarding liability for compensation.
144. In my opinion, the decision made by a delegate of Comcare on 3 January 2008, following reconsideration, was incorrect. Therefore, I set aside that decision and remit the matter to Comcare to calculate the compensation to which Ms Manuel is entitled under s 16 and s 19 of the SRC Act. Although I have found that Ms Manuel’s condition is permanent, there has been no application for compensation under s 24 or s 27 of the SRC Act. I am therefore not in a position to make any findings in respect of compensation under those sections of the SRC Act.
145. Comcare should pay Ms Manuel’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.
I certify that the one hundred and forty five [145] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd): Leah Berardi
Clerk
Dates of Hearing 25 - 28 August 2009 (inclusive)
Date of Decision 4 November 2009
Counsel for the Applicant Mr Nick Horner
Solicitor for the Applicant Ms Carolyn Ford, Moores Legal
Counsel for the Respondent Mr Ben Dubé
Solicitor for the Respondent Ms Lydia Demetrios, Sparke Helmore
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