Marina Tsiamis and Comcare
[2013] AATA 319
[2013] AATA 319
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5508
Re
Marina Tsiamis
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Dr S TohDate 20 May 2013 Place Sydney The Tribunal affirms the decision under review.
.....[sgd]...................................................................
Senior Member J F Toohey
Dr S TohCATCHWORDS
COMPENSATION – claim for bi-polar disorder, paranoid schizophrenia, post-traumatic stress disorder as a result of witnessing accident at work – whether applicant witnessed accident – claim lodged 30 years after incident at work – whether notice given as soon as practicable – whether applicant suffered from claimed conditions – whether any causal connection between applicant’s condition and her employment – whether injury in the course of employment – whether claim excluded because applicant engaged in serious and wilful misconduct – Tribunal satisfied applicant suffered psychological conditions – not satisfied of causal connection to employment - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 7(4), 14, 53
Administrative Appeals Tribunal Act 1975 s 62(4)
CASES
Comcare v Sahu-Khan (2007) 156 FCR 536
von Stieglitz and Comcare AATA [2010] 263
REASONS FOR DECISION
Senior Member J F Toohey
Dr S Toh20 May 2013
BACKGROUND
In December 1981, a young technician was killed while working on top of a lift in the building where a Commonwealth Government Office was located. Marina Tsiamis, who was an employee of the Office at the time, claims she was riding on top of the lift with the young man and another technician at the time of the accident.
In November 2011, Ms Tsiamis claimed compensation for bipolar disorder, paranoid schizophrenia and post-traumatic stress disorder which she said resulted from witnessing the young man’s death.
Comcare does not dispute that Ms Tsiamis has suffered from a serious psychiatric illness for many years. Comcare contends, however, that there is no causal connection between her employment and her illness, and that it is not liable to compensate her.
THE ISSUES
Ms Tsiamis’ claim raises the following questions:
(i)was she present when the accident occurred and, if so, what did she witness?
(ii)what is the nature of her illness?
(iii)did she suffer an ‘injury’ and, if so, was it a ‘mental injury’ or a ‘disease’?
(iv)if it is a disease, what is the date of her injury?
(v)did she lodge her claim for compensation as soon as practicable after she became aware of her injury?
(vi)is there a causal connection between her employment and her injury?
(vii)did her employment contribute in a material degree to her injury?
(viii)if her injury is a ‘mental injury’, did her injury arise in the course of her employment?
(ix)is her claim excluded from compensation because it was caused by serious and wilful misconduct on her part?
RELEVANT LEGISLATION
By s 14 of the Safety, Rehabilitation and Compensation Act1988 (the Act), Comcare is liable to pay compensation to an employee who suffers an injury that results in incapacity for work, or impairment. Comcare’s liability is subject to certain exclusions and qualifications.
For the reasons set out below at [63] – [69], we find that Ms Tsiamis’ injury occurred around August 2002. It follows her claim is to be determined according to the Act as it was at that time.
By s 4 of the Act at the relevant time, injury meant:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.
By s 4, disease meant:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment.
being an ailment or aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
Ailment meant any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). Aggravation included acceleration or recurrence: s 4
Provisions concerning relevant exclusions and qualifications are considered below.
WAS MS TSIAMIS PRESENT WHEN THE ACCIDENT OCCURRED AND, IF SO, WHAT DID SHE WITNESS?
The coronial inquiry
We have before us the transcript of the inquiry by the ACT Coroner into the young man’s death. We also have copies of documents that were available to the Coroner which include the autopsy report, statements from police officers who attended the scene of the accident, a statement from the doctor who certified the young man’s death, and evidence of witnesses including Mr O, the other technician who was present at the time.
The transcript of the Coroner’s inquiry shows that Mr O gave evidence that he and the young man who died were on top of the lift at the time of the accident, trying to establish the cause of a scraping noise on the lower floors. They travelled downwards in response to a call. Mr O said he could not be sure, but they may have stopped to pick up a passenger from one of the floors on the way down. The lift stopped at the first floor and then, while both men were looking over the edge to check its clearance from the lift well, it suddenly started moving upwards. Mr O pulled his head in but realised immediately that the other man was in trouble. Mr O managed to press the safety switch and the lift stopped but, by that time, the other man had hit his head and was not moving or responding.
The Coroner found the young man was working on the roof of the lift with his head protruding beyond the roof into the lift well, apparently expecting it would travel downwards; when the doors closed unexpectedly, and the lift moved upwards from the first to the fourth floors, his head struck the steel RSJs in the lift well, killing him instantly. His body was found on top of the lift, slumped over a metal beam.
There is no reference in the evidence before the Coroner to Ms Tsiamis’ presence at the time of the accident.
Ms Tsiamis’ evidence
At the time of the accident, Ms Tsiamis was aged 21 and had been working as a clerical assistant at the Office for four years. Her duties included correcting and amending documents submitted for approval, typing letters for her supervisor, and delivering documents between the four floors of the Office.
Ms Tsiamis told us that she befriended the two lift technicians some months before the accident, while she was working on the switchboard. She would see them sometimes when she was delivering documents, and they had invited her to ride between floors on top of the lift with them five or six times in the months before the accident, and she and Mr O would occasionally see each other outside work.
Ms Tsiamis gave evidence that, on the day of the accident, she told her supervisor she was going upstairs to talk to the lift mechanics. Her evidence about whether her supervisor knew she would sometimes ride on top of the lift with them is considered below. She says she found the two men working on an upper floor, and Mr O invited her on top of the lift with them.
There are discrepancies in Ms Tsiamis’ account of what happened next. There are also discrepancies between her account and the undisputed evidence before the Coroner.
Contrary to the Coroner’s finding that the lift moved unexpectedly upwards between floors, Ms Tsiamis told us it was travelling downwards when, all of a sudden, it came to “a screeching halt” between floors. The next thing she remembers, Mr O opened the door, told her to get out, pushed her out of the elevator, and the doors closed behind her suddenly. She went back to her desk and thought “something's gone terribly wrong here”. When she heard sirens and alarms a short time later, “all sorts of things were going through [her] mind” until, a short time later, another receptionist told her one of the lift technicians had died.
In her claim for compensation in November 2011, Ms Tsiamis wrote that “the mechanic at the back pulled a lever and fell off, consequently dying”. (Emphasis added.) Giving oral evidence, she said she realised, as soon as the young man fell down the shaft, that she was “in big trouble psychologically” and, the minute she heard him fall, she went into shock. In closing submissions, Ms Tsiamis again referred to hearing the young man “fall down the lift shaft” (emphasis added), and she “immediately went into shock at that very second, and [she] would be lucky if she could even get five words out”.
In written reports, Dr Stephen Allnutt and Dr Jeffrey Bertucen, psychiatrists who assessed Ms Tsiamis for these proceedings, recorded that she told them that the young man fell to his death.
In a letter to Comcare’s solicitors in July 2012, Ms Tsiamis referred to the transcript of the Coroner’s inquiry and, apparently for the first time, to the young man being decapitated. Although she told us that the young man fell to his death, in response to further questioning, Ms Tsiamis said she was standing next to him when he was decapitated; she did not see him decapitated but she heard “like, rushing water … which was obviously blood”, before he “fell down the lift shaft, presumably”.
It appears that Ms Tsiamis obtained a copy of the transcript and evidence before the Coroner approximately one year ago after making her application for review to the AAT. As the evidence from the inquest shows, the young man did not fall to his death. A police witness gave evidence that he found the young man on top of the lift, “partially decapitated”. The transcript also shows a witness who was inside the lift at the time told police he heard “a sound like running water for a moment” before he pressed the alarm. Ms Tsiamis’ reference to these matters relatively late in the proceedings suggests her memory of events has been influenced by reading the transcript.
It is also notable that the clinical notes of Ms Tsiamis’ repeated admissions to hospital with mania and psychosis between about 2001 and 2008 record numerous examples of delusional and chaotic thinking, for example that her mother was the Queen of England. The clinical notes also show that she told nurses she had worked at the Government Office (which, somewhat ironically, is noted as a further example of her “grandiose” thinking). Despite referring specifically to her employment, there is no record anywhere in the notes of her referring to the accident or anything to do with it, which seems surprising if indeed it preoccupied and affected her to the extent she says.
Mr O’s evidence
Mr O appeared before us at Ms Tsiamis’ request. She claims he “lied” to the Coroner by failing to disclose that she was present at the time of the accident. As the transcript shows, and Ms Tsiamis acknowledged in evidence before us, Mr O was not asked by the Coroner whether anyone else was present.
Mr O was represented when he appeared before us. He declined to answer questions about what happened on the day of the accident, on advice that doing so might incriminate him. On that basis, we found he had a reasonable excuse (see s 62(4) of the Administrative Appeals Tribunal Act1975) and did not require him to answer questions about the accident itself. However, he gave evidence frankly about events before and after that day. In response to questions from the Tribunal, he said he had invited Ms Tsiamis to ride on top of the lift with him four or five times before the accident.
Consideration
Were it not for Mr O’s evidence, which we have no reason to doubt, we would think it improbable that an employee would repeatedly ride on top of a lift during work hours. Certainly, it is hard to imagine it happening in a government workplace today. Plainly, however, it was something Ms Tsiamis did at least four or five times. (Ms Tsiamis gave evidence that sometimes she was on her lunch break but nothing turns on that.)
That said, the inconsistencies in Ms Tsiamis’ account, and between her account and the Coroner’s findings, together with the length of time before she made her claim for compensation and her intervening mental illness, raise real doubts that she was present on top of the lift at the time of the accident. As we have said, she may have reconstructed important details from the transcript of the Coroner’s inquiry. Alternatively, it is possible that she has come to believe she was present.
Given the inconsistencies in her evidence, and the lack of any corroborating evidence, we cannot conclude with any reasonable degree of satisfaction that Ms Tsiamis was present on top of the lift at the time of the accident. However, even if we were satisfied that she was present, for the reasons that follow, we would not be satisfied that the respondent is liable to compensate her.
AFTER THE ACCIDENT
1982 – 1984
Ms Tsiamis gave evidence that she was in shock and could hardly speak immediately after the accident; she closed down and there was “no way [she] could continue employment”. Apart from going back to the office “once or twice, two days, just to get [her] things”, she did not return to work. She took 12 months leave without pay and told her boss she was going to Sydney to do an art course. She went for an initial interview with an art school in Sydney but she could not cope. At the end of 12 months, she went back to the office but she could not bear to look at the lift and, after completing paperwork and saying goodbye to people, she resigned. She moved to Sydney in about March 1982.
Ms Tsiamis’ leave records suggest a different story, at least in the period immediately following the accident. They show that Ms Tsiamis took sick leave on the afternoon of 15 December 1981 with a toothache, and from 14 January to 25 January for extraction of her wisdom teeth. Records also show that, on 6 January 1982, Ms Tsiamis advised her employer in writing that she intended taking her annual recreation leave commencing 1 March 1982 and wished to apply for 12 months leave without pay “commencing approximately 1 April 1982” as she had applied to study at art college in Sydney. On 3 February 1982, her application for leave without pay was granted.
Ms Tsiamis gave evidence that she told her boss she was going to art school “as an excuse” while she came to Sydney to try to “recuperate and rehabilitate in [her] own way with a friend”. Once in Sydney, she started playing in a band and did some bar work but there was “no way” she could communicate or perform office work anymore because it was “too traumatic”.
Ms Tsiamis’ evidence about the effects of the accident on her appears at odds with reports from music magazines and newspapers at the time which show the “all-girl” band, ‘The Debutantes’, which she joined as a drummer, enjoyed considerable success in bars around Sydney until 1984 when it disbanded after the lead singer was offered a lucrative contract overseas. A report from Bright Lights magazine shows band members had spent “over a week auditioning each other before they decided that the five of them were musically compatible”.
Judy Sinclair, a member of ‘The Debutantes’ and now a clinical psychologist, provided a written character reference for Ms Tsiamis. She wrote that the band was a “serious full-time endeavour”; they rehearsed most weekdays and Ms Tsiamis was a “reliable and hard-working member”; she was “focused and conscientious … and always attended to her obligations punctually and diligently”.
Ms Sinclair wrote that Ms Tsiamis had only recently confided in her about the lift incident, and she was surprised to learn about her personal history; during the early years of their relationship, Ms Tsiamis did not tell her about her traumatic experience, and Ms Sinclair was shocked to learn that she had later resorted to drugs and prostitution.
1984 to mid-1990s
Ms Tsiamis gave evidence that, after ‘The Debutantes’ disbanded, she supported herself with temporary work in bars, cleaning, and secretarial positions. She sold entertainment cards on commission for about six months, and started a real estate course. In the mid-1990s she worked in “privatisation jobs” for several months each at Telstra, the Commonwealth Bank and GIO. She enjoyed those jobs and got a promotion in one.
Ms Tsiamis has provided us with a copy of a resume she prepared in 2008 for the period from 1976 to 2001. It indicates she was in virtually continuous full-time employment until 1994 and then casual employment until 2001. She frankly conceded that the nature of her employment, and admissions to hospital since the late 1990s, make for a poor resume, and she exaggerated her employment history in the resume in the hope that she might secure employment.
We accept that Ms Tsiamis’ resume overstates her employment. Nevertheless, by her own evidence, she held temporary positions in bar work and office work for most of the time until about 1997 when she started using drugs which led to financial problems and, in turn, to sex work.
Ms Tsiamis gave evidence that she started using drugs in about 1997 as a means of “self-medicating” because she had “hit rock bottom” and could no longer cope with the guilt of having been present on top of the lift in 1981. It is not clear why she would feel guilty. In any event, her evidence that she was not able to undertake office work after the accident because of the trauma she felt, is at odds with her evidence that she worked in a number of office positions during the 1980s and 1990s without any apparent difficulty. Her employment might have been patchy from around 1984 but, by her own evidence, she was able to support herself for over ten years before she started using drugs.
WHAT IS THE NATURE OF MS TSIAMIS’ MEDICAL CONDITION?
In her claim for compensation, Ms Tsiamis identified her injury or illness as: “Bi-Polar disorder also, post-traumatic shock, /stress, paranoid schizophrenia (for a period, self diagnosed)”. Her diagnoses find only limited support in the assessments of her doctors.
Report of Dr Allnutt
On 23 September 2011, Dr Allnutt, consultant psychiatrist, reported to Comcare that he had seen Ms Tsiamis and reviewed her file.
Dr Allnutt reported that Ms Tsiamis described how she was on top of the lift when one of the mechanics “fell to his death”; she felt responsible and suffered a mental breakdown as a result. She believed she suffered from “Post Traumatic Stress Disorder/shock” as a result of witnessing the death, and she also thought she might have “Paranoid Schizophrenia or Bipolar Affective Disorder”. He noted that she did not seek professional help until 2001, when she was first admitted at Hornsby Hospital, at which time she was diagnosed with Bipolar Disorder.
Dr Allnutt reported that Ms Tsiamis presented with a history of recurrent mood disturbance characterised by episodes of mania with associated psychosis consistent with the differential diagnosis of Bipolar Affective Disorder with psychosis, Schizoaffective Disorder or Paranoid Schizophrenia. At the time that he saw her, she continued to manifest active symptoms of psychosis.
Despite some of the symptoms Ms Tsiamis reported, Dr Allnutt thought it “difficult” to make a diagnosis of post-traumatic stress disorder, although he accepted she would suffer from “high levels of anxiety secondary to her perception of experiences that occurred for her in 1981”.
Evidence of Dr Bertucen
Dr Bertucen saw Ms Tsiamis for assessment in September 2011 following which he provided a written report. He provided a supplementary report in September 2012, and gave oral evidence.
Dr Bertucen reported that Ms Tsiamis described how she learned, after Mr O had “bundled her hurriedly out of the lift shaft”, that the other technician had fallen “down the shaft to his death”. He noted that, in 1999, she attempted to overdose with heroin and sleeping pills and was admitted to Bankstown Hospital where she saw a drug and alcohol counsellor. He reported that further “substance use and affective/psychotic symptoms deteriorated significantly over the next 18 months to 2 years” until Ms Tsiamis was admitted to Hornsby Hospital in 2001 with features of mania and psychosis.
Dr Bertucen wrote that diagnosis of Ms Tsiamis’ condition was “not clear cut” but the differential diagnoses would be a Bipolar Disorder with psychotic features, Schizoaffective Disorder and Substance Induced Psychosis/Mood Disorder and she could also be diagnosed with a Chronic Poly-substance Dependence/Abuse Condition now in remission. He noted that she was never formally diagnosed with post-traumatic stress disorder, and that the veracity of her own diagnosis “must be considered suspect”. In oral evidence, he said he did not detect any signs of post-traumatic stress at the time of his interview although Ms Tsiamis’ level of distress and constant ruminations about the accident and its possible consequences suggested there may have been an element of that condition.
Dr Bertucen thought Ms Tsiamis first appeared to have suffered from clinically identifiable symptoms of mental illness in the 1990s when she began to use illicit substances heavily and regularly. He thought her extreme anxiety and paranoia after the accident might have been early manifestations of her psychotic illness.
As to whether there was any relationship between her employment and her medical condition, Dr Bertucen wrote:
[T]here is no plausible connection that can be drawn between the events of 1981 and Ms Tsiamis’ psychiatric condition which has been treated formally over the last ten years. [She] did not directly witness the death of the man and claims she was bundled out of the area by her friend, [Mr O]. While it cannot be denied that [she] underwent a traumatic experience, nonetheless she managed to relocate successfully to Sydney and worked in a variety of roles for a further 13 or 14 years prior to her decline into sex work and regular substance use. In summary, therefore, I do not consider that employment related factors (dating from 1981) have had a direct and demonstrable connection with the current psychiatric condition which may well have arisen at the same time in her life under other circumstances.
In his supplementary report, Dr Bertucen said Ms Tsiamis’ history suggested she may have had an early manifestation of psychotic aspects of schizoaffective disorder in 1981 or 1982 when he thought it likely she was suffering “quiescent or prodromal psychotic illness which however was aggravated into a florid state many years later by chronic polysubstance abuse”. He thought that emergence of the underlying condition was due predominantly to her history of substance abuse in the late 1980s and 1990s and it was unlikely that any involvement in the accident significantly contributed to her condition.
Before the Tribunal, Dr Bertucen was asked whether, assuming she was present at the time, Ms Tsiamis’ involvement in the accident would have affected her illness to a material degree. He thought it could have had a “minor to moderate effect” on the development of her symptoms, and it was possible it somehow “unmasked” paranoid or psychotic symptoms that she was already beginning to experience, or was vulnerable to. However, he did not believe it was at any stage a substantial contributing factor. He thought there were some early possible features or traits of perhaps paranoid thinking, but not sufficient to be characterised as an independent psychological condition at that time.
Report of Dr Babidge
A copy of a report in September 2011 from Dr Nick Babidge, Chief Psychiatrist at Sutherland Hospital, to Comcare is in evidence.
Dr Babidge reported that Ms Tsiamis was first admitted to the Hospital’s Mental Health Unit in August 2002 when she presented with a manic episode with psychotic symptoms; a history of drug and alcohol abuse was recorded but no past psychiatric history. He noted she had had repeated admissions between 2002 and 2008 for “manic episodes with psychosis, associated with non-compliance with her medication and substance abuse, particularly of amphetamines and alcohol”.
Dr Babidge reported that Ms Tsiamis’ diagnoses were Bipolar Affective Disorder and substance abuse, and that it appeared from her file that she first suffered from a manic episode of her Bipolar Affective Disorder in 2002. He wrote:
There are no obvious employment factors related to the development of Ms Tsiamis’ illness. … I could not find a record in the notes of any link between employment and her illness. … The obvious factor precipitating and perpetuating that illness appears to be substance abuse.
Evidence of Wendy Smith, psychologist
Wendy Smith, the psychologist who was Ms Tsiamis’ primary clinician at Sutherland Hospital from August 2006 until some months before her discharge in 2009, gave evidence by telephone.
Ms Smith confirmed her advice to the Mental Health Review Tribunal in a report in February 2009 that Ms Tsiamis had been diagnosed with Bipolar Affective Disorder. She added that, based on the original referral to her for treatment, Ms Tsiamis may also have had a drug-induced psychosis. She thought that an anxiety-related illness could be associated with those diagnoses, and she would expect someone in that situation to have some anxiety; there could also have been a traumatic history.
Ms Smith recalled that, over some months towards the end of their time, Ms Tsiamis alluded to an incident involving a lift and finally got to the point where she did talk. As far as Ms Smith could recall, the incident involved someone’s death, and Ms Tsiamis said she had been extremely frightened. Ms Smith did not explore the matter further; she felt Ms Tsiamis did not want to talk more, and she did not want to “retraumatise” her.
Consideration
Nothing in the clinical notes, or reports, supports the finding that Ms Tsiamis suffers, or has suffered, from post-traumatic stress disorder. She is the only person who has arrived at that diagnosis. Dr Bertucen’s comment that there may have been “an element of PTSD” at the time does not amount to a diagnosis.
We are not satisfied, on the evidence before us, that Ms Tsiamis suffers, or has suffered, from post-traumatic stress disorder. Although each of the psychiatrists had some difficulty diagnosing her condition, they agree she suffers from Bipolar Affective Disorder with associated psychosis and possibly, Schizoaffective Disorder or Paranoid Schizophrenia, and that her substance use has played a significant part in her illness. We find, based on their evidence, that Ms Tsiamis’ illness is as they describe.
DID MS TSIAMIS SUFFER AN ‘INJURY’ AND, IF SO, WAS IT A ‘MENTAL INJURY’ OR A ‘DISEASE’?
Section 4 provides that an ‘injury’ includes a ‘mental injury arising out of, or in the course of, the employee's employment’, and the question may arise whether an applicant’s condition is properly characterised as a ‘mental injury’ or a ‘disease’.
In von Stieglitz and Comcare AATA [2010] 263, the Tribunal considered this question and concluded (at [28]) that:
… given the elaborate definitions of 'injury', ‘disease’ and ‘ailment’ in the Act, and the legislature’s indication of the need to differentiate between these definitions, a ‘mental injury’ requires some form of sudden or identifiable physiological change. It is not enough that there be an ‘external stimuli’. There must be ‘some sudden [or identifiable] change to the underlying pathophysiology’.
We respectfully agree and conclude that Ms Tsiamis’ condition is properly charactered as a disease, rather than a ‘mental injury’. Despite her belief – which we acknowledge she holds genuinely – that she suffered an immediate and identifiable change to her psychological condition at the moment of the accident, the medical evidence does not support that conclusion, and nor does the evidence of subsequent events. injury’ includes
WHAT IS THE DATE OF MS TSIAMIS’ INJURY?
An employee is taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease, or aggravation, or when the disease or aggravation first resulted in the incapacity for work, or impairment of the employee, whichever happens first: s 7(4).
Ms Tsiamis says she was incapacitated for work immediately following the accident. There is no medical evidence to support her claim and, as we have discussed above, her claim is not supported by her employment records.
As to when she first sought medical treatment for her injury, Ms Tsiamis noted on her claim form:
1988 and around 1999-2000 (student only)
Dr Phillip Groves, Naturecare, Artarmon
Sutherland Hospital (psychiatric unit)
Giving evidence, Ms Tsiamis said the first time she confided in anyone about what had occurred in the lift was in 1988 when she attended Nature Care College in Sydney. A certificate from the College shows she completed three terms of 24 hours each in psychotherapy in 1988 with credits and a distinction. Ms Tsiamis gave evidence that she attended the College because she was still in shock, she was “going insane”, and she needed “to debrief”. She had one counselling session with Dr Groves at the College. She started to confide in him about her experience and opened up to him “a bit”, but then she started to go into shock again, and he did not press her. We accept Ms Tsiamis’ evidence but what she describes does not amount to seeking treatment for her injury.
The respondent submits that Ms Tsiamis first suffered symptoms of her condition in 2002 and that the deemed date of her injury is 2 August 2002, when she was admitted to Sutherland Hospital.
The first evidence of Ms Tsiamis’ admission to hospital was in 1999 when she was admitted to Bankstown hospital after an attempted overdose with heroin and sleeping pills. According to Dr Bertucen, “her substance abuse and affective/psychotic symptoms deteriorated significantly” over the next 18 months to two years until she was admitted to Hornsby Hospital in 2001 with features of mania and psychosis.
The first evidence of Ms Tsiamis seeking treatment for what was diagnosed as Bipolar Disorder (with associated conditions) was in August 2002. Given the difficulty the doctors had in reaching a clear diagnosis, the date of injury for the purposes of s 7(4) may be up to two or three years earlier but it makes no practical difference: Ms Tsiamis’ claim would still fall to be determined under the same version of the Act.
DID MS TSIAMIS GIVE NOTICE OF HER CLAIM AS SOON AS PRACTICABLE?
Section 53 of the Act provides:
1This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury …
On the basis that the date of Ms Tsiamis’ injury was August 2002, it was over nine years before she gave notice of her claim for compensation (and 30 years after she says she first became aware of her condition and the reason for it).
Ms Tsiamis gave evidence that she started to tell Dr Groves about the accident when she saw him in 1988, and she mentioned it to a friend in about 2004 but she immediately went into shock again. She did not “open up” to anyone until she talked to Ms Smith in about 2008. Ms Tsiamis gave evidence that she was too fearful to tell anyone that she was present at the time of the accident because any professional would be obliged to report what she told them, which could expose her, and possibly Mr O as well, to manslaughter charges. Ms Tsiamis referred to “mandatory reporting” provisions in the Privacy Act but it is not clear to us what, in particular, she means. In any event, by her own evidence, she did not become aware of the legislation until she started preparing for this claim in about 2009 or 2010 so any legislative requirements, or her understanding of them, could not have been a factor in the delay in making her claim.
The respondent does not press the argument that Ms Tsiamis’ injury is precluded from compensation by s 53(1) and says it appears from her treatment notes that she first became convinced of a connection between the accident and her illness in about 2009 or 2010 and, once that happened, she set about putting together her claim.
There is evidence that Ms Tsiamis was still presenting on occasions as very unwell as late as May 2011. Her illness has apparently improved a great deal over the past two years but she still suffers serious symptoms from time to time. In these circumstances, what might be practicable for another person might not before her, and we would not exclude her claim from compensation on this ground.
IS THERE A CAUSAL CONNECTION?
The respondent submits, and we agree, that the evidence does not bear out a causal connection between Ms Tsiamis’ employment and her psychological condition.
The evidence does not support the conclusion that Ms Tsiamis was traumatised immediately following the accident as she claims. As we have discussed above, her leave records strongly suggest that she was able to continue at work for some time until she decided to come to Sydney. Whether or not she seriously intended to take up art school, she was involved in the band for two years without Ms Sinclair detecting any sign of psychological disturbance. Had Ms Tsiamis been traumatised as she now recalls, it seems improbable that Ms Sinclair would not have noticed some effect. Instead, she writes of Ms Tsiamis’ hard work and application.
Ms Tsiamis says, and we accept, that she did not start using drugs until around 1997. The medical evidence strongly supports the conclusion that her substance use and her mental illness occurred around the same time and were closely linked. We are not satisfied that Ms Tsiamis’ use of drugs was a means of “self-medicating” in order to deal with the trauma associated with the accident.
Dr Bertucen was the only doctor who thought there was any connection at all between Ms Tsiamis’ employment and her illness. Even then, and assuming she was present when the accident occurred, he did not think it more than a possibility that it somehow “unmasked” paranoid or psychotic symptoms that she was already beginning to experience, or was vulnerable to, but, even then, he did not think any early possible features or traits were sufficient to be characterised as an independent psychological condition at that time.
The medical evidence indicates that a probable result of witnessing an accident such as Ms Tsiamis describes would be the development of an acute stress disorder or post-traumatic stress disorder but she developed neither. Rather, she developed an illness many years later that the doctors attribute to an underlying vulnerability that was exacerbated by substance use.
Considering all of the medical evidence, we are not satisfied, on the balance of probabilities, of any causal connection between Ms Tsiamis’ and the development, many years later, of her mental illness.
Did Ms Tsiamis’ employment contribute in a material degree to her injury?
Prior to April 2007, the Act required there be ‘a contribution in a material degree by the employee’s employment’ to the disease suffered by the employee. In Comcare v Sahu-Khan (2007) 156 FCR 536, Finn J held that the word ‘material’ imposed ‘an evaluative threshold below which a causal connection may be disregarded’. As to where that threshold lies, he referred to authorities and to the Shorter Oxford Dictionary meaning of ‘materially’ as ‘In a material degree; substantially; considerably’ and concluded (at 543) that ‘probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)"in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.
For the reasons set out above, we are not satisfied that Ms Tsiamis’ employment contributed in a material degree to her condition.
Did the injury arise in the course of Ms Tsiamis’ employment?
If we are wrong, and if Ms Tsiamis’ condition is properly characterised as a ‘mental injury’, we would have to consider whether it arose in the course of her employment.
Ms Tsiamis says her supervisor knew that she was friendly with the lift technicians and, on the day of the accident, she told him she was going upstairs to talk to them. She agreed, however, that she did not think she told him about getting on top of the lift, and she did not think he knew that was what she was doing. She told us she does not know what he would have said if he had known, but he might have said she was not to do it.
In response to the Tribunal’s questions, Ms Tsiamis said that “obviously” riding on the lift was not part of her job description or her duties.
The respondent submits that Ms Tsiamis was not acting in the course of her employment whenever she was riding on top of the lift. We tend to agree. Ms Tsiamis says she was delivering documents between floors at the time but we do not accept that necessarily brings her conduct within the course of her employment. There is no evidence that her employer had any knowledge of what she was doing, or that she was required or encouraged in any way to ride on top of the lift. Riding on top of the lift had nothing to do with her employment and, by her own evidence, she believes her boss would have told her not to do so had he known what she was doing. Indeed, her claim for compensation is based, in part, on her complaint is that Mr O “breached occupational health and safety legislation” by inviting her onto the top of the lift.
The scope of the expression “in the course of employment” has recently been considered by the Tribunal and subsequently by the Federal Court and Full Federal Court in Comcare v PVYW [2012] FCAFC 181. Special leave to appeal has now been granted by the High Court. However, because Ms Tsiamis’ claim fails for other reasons, it is not necessary for us finally to determine this question.
DID MS TSIAMIS ENGAGE IN SERIOUS AND WILFUL MISCONDUCT?
Section 14(3) of the Act provides:
Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment
If we had decided that Ms Tsiamis had suffered a compensable injury, we would then have to determine whether her claim was excluded by reason of her serious and wilful misconduct.
By today’s standards, riding on top of a lift in the workplace would almost certainly be regarded as serious and wilful misconduct. It may well have been regarded in the same way 30 years ago. However, in the absence of further evidence, such as from Ms Tsiamis’ employer at the time about workplace safety policies and directions to employees, we have decided against reaching any conclusion about this question.
CONCLUSION
For the reasons set out, we cannot be satisfied, on the evidence before us, that Ms Tsiamis was present on top of the lift at the time of the accident. Even if we were satisfied that she was, we are not satisfied that there was a causal connection between her employment and the serious illness that she developed many years later.
We affirm the decision under review.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr S Toh. ....[sgd]....................................................................
Associate
Dated 20 May 2013
Date(s) of hearing 11 - 12 March and 4 April 2013 Applicant In person Counsel for the Respondent Ms R Henderson Solicitors for the Respondent Australian Government Solicitor
2
2
0