McCartin and Comcare
[2005] AATA 401
•5 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 401ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/555
GENERAL ADMINISTRATIVE DIVISION
Re: MICHAEL McCARTIN
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date:5 May 2005
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
COMPENSATION - whistleblower - aggravation of anxiety/depression - whether an injury - whether incapacity to work
Administrative Appeals Tribunal Act 1975 ss 37, 42C
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 16(1)
REASONS FOR DECISION
5 May 2005 G.D. Friedman, Member
1. This is an application by Michael McCartin (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 10 April 2003. The delegate affirmed a determination of the respondent dated 12 August 2002 that the respondent was not liable to pay compensation in respect of unspecified acute reaction to stress suffered by the applicant.
2. At the hearing of this matter on 8 October 2004, 2 February 2005, 3 February 2005, 24 March 2005 and 25 March 2005 Mr I. Fehring of counsel represented the applicant and Mr J. Lenczner of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T1-T70), plus seven exhibits (Exhibits A1‑A7) lodged by the applicant and three exhibits (Exhibit R1-R3) lodged by the respondent.
BACKGROUND
4. The applicant was born in Ballarat, Victoria on 9 August 1959. In May 1987 he commenced employment with the Australian Taxation Office (ATO) as a Clerical Assistant. In February 1999 he provided information to the Fraud Prevention Control Unit of the ATO regarding alleged fraud in the Office of the Commissioners/Problem Resolution Service. He subsequently took sick leave after claiming that he had been victimised for his actions. On 17 August 1999 the applicant submitted a claim for compensation in which he alleged that he suffered injury to his mental health as a result of workplace harassment.
5. The ATO refused the applicant’s claim and in a reviewable determination the respondent affirmed the decision. The applicant lodged a claim with the Tribunal seeking review of the decision (V2000/1298). On 11 February 2002 the Tribunal commenced to hear the matter. On 12 February 2002 (the settlement date) the parties reached agreement and on 19 February 2002 the Tribunal made a decision, under s 42C of the AAT Act (the s 42C decision), setting aside the reviewable decision dated 30 August 2000 and varying the determination dated 15 November 1999, and finding that the applicant suffered a temporary episode of anxiety and depression. The Tribunal granted compensation to the applicant for varying periods and compensation ceased on 14 October 1999 (Exhibit R1).
6. On 4 June 2002 the applicant lodged a further application for compensation on the basis of shock, distress and depression he claimed to have suffered following a telephone conversation of 13 February 2002 with Ms N. Moretti, Manager of the Melbourne Call Centre (the telephone conversation). During the telephone conversation Ms Moretti raised the possibility of placing the applicant under the supervision of an officer (Ms M. Damschke) whom the applicant believed was directly involved in the earlier alleged victimisation. The applicant claimed that he suffered injury in the form of damage to his mental health.
7. In a determination dated 12 August 2002 the respondent refused the applicant’s claim on the basis that he was not suffering from a disease that had been materially contributed to by his Commonwealth employment. On 10 April 2003 the respondent affirmed the decision.
8. On 28 May 2003 the applicant lodged an application with the Tribunal for review of the decision of 10 April 2003.
EVIDENCE
9. In oral evidence the applicant referred to the s 42C decision (Exhibit R1) in which the Tribunal:
…
(a)sets aside the reviewable decision dated 30 August 2000;
(b)varies the determination dated 15 November 1999 as follows;
(i)the applicant has suffered a temporary episode of anxiety and depression which was contributed to in a material degree by his Commonwealth employment (the injury);
(ii)the respondent is liable to pay compensation under s14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of the injury;
(iii)the applicant shall be taken to have sustained the injury on 13 April 1999 in accordance with s7(4) of the SRC Act;
(iv)as a result of the injury, the applicant was incapacitated for work for various periods between 13 April 1999 and 13 October 1999 and in accordance with s19 of the SRC Act the respondent is liable to pay compensation to the applicant in respect of the injury for the certified periods;
(v)as a result of the injury, the applicant required medical treatment and in accordance with s16 of the SRC Act the respondent is liable to pay compensation in respect of such reasonably obtained until 13 October 1999;
(vi)on and from 14 October 1999 the applicant has not been incapacitated as a result of the injury;
(vii)on and from 14 October 1999 the applicant has not reasonably required medical treatment in relation to the injury; and
(viii)on and from 14 October 1999 the effects of the injury have ceased and the injury has not resulted in impairment or incapacity; the respondent is not liable to pay compensation in accordance with s14 of the SRC Act from 14 October 1999.
…
He said that he understood that one of the consequences of the s 42C decision was that he would return to work the day after the settlement date, and for that reason he contacted Ms Moretti by telephone on 13 February 2002, at the Call Centre where he had worked in October 1999.
10. The applicant told the Tribunal that Ms Moretti acknowledged that she was aware of the agreement reached on the settlement date, and indicated in the telephone conversation that she was thinking of placing him in a team headed by Ms Damschke. The applicant said that he was shocked and could not believe Ms Moretti would contemplate such action, when she was aware that Ms Damschke was involved in the harassment and victimisation he suffered following his actions in bringing matters to the attention of the Fraud Prevention and Control Unit. He stated that he was so taken aback that he did not query the proposed action or ask Ms Moretti to re-consider the matter. He said that he was too shocked to seek medical advice or speak to anyone else until he consulted Dr Cronin on 22 February 2002.
11. The applicant explained that the next day he contacted Ms Moretti again and was told that there was no workstation available for him. He said that Ms Moretti informed him that the Health Services Australia Ltd psychiatrist (Dr Smith) had written a report which indicated that the applicant was unfit for work for the next 6 to 12 months (the Smith report). The applicant said that he was shocked and distressed, and believed that he was still being victimised despite the agreement reached on the settlement date. He stated that he became confused and extremely anxious about his future.
12. The applicant explained that he discussed Dr Smith’s report with Dr J. Cronin, his treating psychiatrist. He said that on 27 March 2002 he wrote to the ATO and stated that neither he nor Dr Cronin agreed with the opinion expressed by Dr Smith. The applicant told the Tribunal that he was too upset to return to work. He said that he was particularly upset to receive a letter dated 8 April 2002 (T42) from Mr B. O’Shea, human resources consultant, ATO, who stated: It is my understanding that Dr Smith consulted with Dr Cronin before issuing his report (the Smith/Cronin consultation). The applicant said that this statement was extremely disturbing and caused anxiety, depression and confusion, particularly as he had not given consent to Dr Cronin to speak to other practitioners. He said that he contacted Dr Cronin, who denied speaking to Dr Smith about the matter.
13. The applicant stated that he did not have the energy to cope with a return to work. He said that he was assessed by Dr N. Strauss, consultant and occupational psychiatrist, on 2 September 2002 and again on 25 February 2003, and noted that, in the second report (T68), Dr Strauss recommended a return to work. The applicant said that, in about May 2003, he believed that he was ready to resume work, and subsequently the ATO offered him a position at Box Hill working reduced hours for three days each week. He said that he commenced on 22 July 2003, and increased his hours to four days per week. He said that, in March 2004, he transferred to the World Trade Centre office and since 15 June 2004 has resumed full-time duties.
14. Under cross-examination, the applicant stated that he believed that his immediate return to work, with no provision for a medical assessment, was included in the s 42C decision, and this was the reason he contacted Ms Moretti on 13 February 2002. He maintained his opinion that in the telephone conversation Ms Moretti did not agree to an alternative placement if the applicant was unhappy about the prospect of working in Ms Damschke’s team.
15. On the question of the Smith/Cronin consultation, the applicant said that his clear understanding was that a medical practitioner required a patient’s written consent before disclosing any relevant matter and that such action in the absence of that consent would be a breach of privacy laws.
16. The applicant agreed that by September 2002, when he saw Dr Strauss, his symptoms had lessened, which he attributed to improved sleep and ongoing visits to Dr Cronin. He said that his confidence was assisted when Dr Cronin told him he disagreed with Dr Smith’s diagnosis of paranoid schizophrenia. He agreed that, in about September or October 2002, he was capable of returning to work, but was advised by Dr Strauss that processing-type work, rather than call centre work, would be appropriate.
17. In respect of a notebook that he had compiled (Exhibit A5), the applicant agreed that he could not recall the significance of all the entries, but acknowledged that he made notes about possible action that he might take as a consequence of the refusal by the ATO to allow him to return to work after the s 42C decision. He said that the notebook accurately recorded his feeling of shock when he read Dr Smith’s report, which he believed was malicious. The applicant said that when he contacted Dr Cronin he was reassured to learn that Dr Cronin had not spoken to Dr Smith before Dr Smith had compiled his report.
18. In a written report dated 29 September 2004 (Exhibit A1), Dr G. Baro, general practitioner, stated:
…
When seen on the 4th of April 2002 he indicated he was still under considerable distress relating to his work at the Australian Taxation office.
It was clear that he was suffering from depression, anxiety and remained in an agitated state, especially when he discussed events at his workplace.
I considered that he was not fit for work and issued a certificate (Centrelink Medical certificate) indicating this.
He was seen every 2-3 months and there was still a lot of anger evident when he discussed [the matter] and certificates were issued to state he was still not fit to return [to] work.
In oral evidence Dr Baro said that he believed the applicant was capable of returning to work in 2002, but that there were barriers arising from the applicant’s experiences in the workplace, which had not been addressed adequately. Dr Baro stated that before April 2002 the applicant had not been under significant stress and had exhibited no clear signs of depression, but after this date there had been stress arising from conflict between the applicant and the ATO and Comcare.
19. Under cross-examination Dr Baro agreed that his notes of the consultation with the applicant dated 4 April 2002 did not indicate a diagnosis of anxiety/depression; but he stated that there may have been a component of anxiety/depression that was not necessarily recorded. He acknowledged that the notes of several later consultations did not contain a reference to psychiatric problems, but said that the applicant’s unresolved issues at the time included these matters, although Dr Baro stated that he found no evidence that the applicant was suffering from schizophrenia or paranoia.
20. In written reports dated 7 May 2001 (T24), 18 February 2004 (Exhibit A3) and 8 September 2004 (Exhibit A4), Dr J. Cronin, consultant psychiatrist, stated that he did not believe that the applicant satisfied the diagnostic criteria for paranoid schizophrenia. He said that one or two psychotic episodes would not necessarily point to schizophrenia, which takes longer to manifest itself. In oral evidence he said that a diagnosis of paranoid personality disorder was more appropriate, but that the condition would not necessarily interfere with a person’s capacity to work. Dr Cronin stated that when the applicant consulted him after the settlement date the applicant was feeling depressed, agitated and confused. He was not fit to return to work at that stage, particularly in an area where he believed he would continue to be harassed and ostracised.
21. Under cross-examination, Dr Cronin said that the applicant was suffering from paranoid delusions. He said that the applicant had a real fear of being placed back at the section of the ATO which was the source of his harassment, and that this exacerbated his depression/anxiety.
22. In a written report dated 12 August 2004 (Exhibit A2) Dr E. Cole, consultant psychiatrist, stated that the applicant suffered from an adjustment disorder with anxiety and depression, but not from paranoid schizophrenia. Under cross‑examination Dr Cole stated that the applicant’s adjustment disorder began in 1998 and was exacerbated by the prospect of returning to work in an unfriendly environment at the ATO. Dr Cole agreed that Ms Moretti’s comments to the applicant during the telephone conversation, and the Smith report, aggravated the applicant’s psychological condition. He did not agree that one or two psychotic episodes would suggest a diagnosis of paranoid schizophrenia in this case.
23. In a written report dated 15 February 2002 (T37) Dr P. Smith, consultant psychiatrist, Health Services Australia Ltd, stated that he examined the applicant on 8 February 2002, and diagnosed paranoid schizophrenia. He stated:
5.It is my opinion that Mr McCartin has a total occupational incapacity at the present time. As well as his paranoid ideation and ongoing mood disturbance, he also has persistent problems with concentration and self‑confidence. It is probable that he is unable to any form of work for any length of time, given these impairments at the present time.
7.Mr McCartin’s total occupational incapacity is best regarded as a temporary disability. There is a possibility of this becoming a permanent incapacity. This decision can be made in 6 to 12 months time pending adequate and sufficient psychiatric treatment.
In oral evidence Dr Smith acknowledged that no other practitioner had diagnosed paranoid schizophrenia. He told the Tribunal that his diagnosis was made on the basis of the applicant’s history and delusions, leading to a conclusion of a psychotic state. He said that his opinion was supported by Dr Strauss, who had identified significant paranoid ideation. Dr Smith stated that with adequate psychiatric treatment most patients suffering from this condition improve.
24. Under cross-examination Dr Smith said that he based his diagnosis on all the material available at the time, but acknowledged the possibility that the applicant does not have a psychotic illness. In relation to his conclusion that the applicant was suspicious and guarded, Dr Smith agreed that the applicant was directed by the ATO to attend the examination, which might account for his presentation as suspicious. Dr Smith maintained that the applicant fulfilled the diagnostic criteria for paranoid schizophrenia, although he agreed that matters such as a belief in astrology and the possibility of surveillance of his activities were not necessarily delusional in the circumstances. Dr Smith conceded that on all the evidence now presented to him there might have been a different diagnosis. He said that his recommendation of incapacity for work for 6 to12 months was based on his view that psychiatric treatment should proceed, and comments by the applicant that he was unable to work.
25. In a written report dated 25 September 2003 (Exhibit R2), Dr D. Shan, consultant psychiatrist, made a diagnosis of paranoid personality disorder, but not paranoid schizophrenia or pre-existing psychiatric condition. He stated:
5.…
The condition of Personality Disorder cannot be aggravated. Some persons with personality disorder are more prone to psychiatric illnesses such as Depression, Schizophrenia or Adjustment Disorder.
I do not believe that the patient developed any additional condition as a result of aggravation by the telephone discussion [with Ms Moretti].
Dr Shan added that the applicant’s personality disorder did not result in an incapacity for work, and that there was no particular treatment for a condition such as personality disorder.
26. In oral evidence Dr Shan said that if the applicant’s version of events was correct, the applicant would have been upset by Ms Moretti’s comments that she was considering placing the applicant in the team headed by Ms Damschke, but that he would have settled down within a short period. Under cross-examination, Dr Shan agreed that the applicant would have been upset if Dr Smith had consulted Dr Cronin without the applicant’s consent, but that being upset does not always lead to an aggravation of a condition. Dr Shan acknowledged that at the time of his examination, in 2003, the applicant had already returned to work, but he did not change his opinion that there was no evidence of clinical depression in February 2002. He said that he saw no need to ask for material from Dr Baro or Dr Cronin, as there are pressures on treating doctors not to give opinions unfavourable to patients.
27. In a written report dated 2 September 2002 (T55), Dr N. Strauss, consultant and occupational psychiatrist, stated that he first saw the applicant on 22 February 2001 and had concluded that the applicant had significant paranoid ideation which pointed to a personality problem rather than a psychiatric illness. He said that he had seen the applicant again on 2 September 2002 and had been provided with a significant amount of material including the report from Dr Smith. He stated:
…
This man’s situation has altered quite remarkably since he was seen by Dr Smith earlier in the year.
This man is either denying any problems and is fabricating his history and manipulating his presentation at interview, or alternatively his alleged paranoid state is now under control. I would be surprised however if this man did not have some problems underneath his current rather calm and relaxed exterior.
…
At this stage however it is extremely difficult for me to state that his paranoid ideation is continuing and there was no real evidence at interview that this man does have schizophrenic problems.
…
His situation seems to be reasonably stable and I cannot exclude the presence of an ongoing psychiatric condition.
Dr Strauss suggested a return to work in about three months after a review by a psychiatrist.
28. In a further written report dated 25 February 2003 (T68), Dr Strauss stated:
…
At this stage I believe that the most likely diagnosis is that of a paranoid state but as I have stated I cannot be certain of this. His condition appears to be in remission at the present time.
Dr Strauss recommended a graduated return to work but not in a call centre. In oral evidence Dr Strauss said that the applicant may have misunderstood Ms Moretti's comments during the telephone conversation, but a psychiatric illness was unlikely to have resulted from his perception of the conversation, although the effect on him was difficult to gauge.
29. Under cross-examination Dr Strauss agreed that a person with the applicant’s history might react badly to certain events and suffer distress from incidents such as the telephone conversation.
30. In a written statement dated 11 July 2002 (T4, page 15) in response to an incident report attached to the applicant’s claim for compensation dated 4 June 2002, Ms Moretti said:
…
The circumstances that Mr McCartin describes of the telephone conversation are incomplete. In our discussion, I did state to Mr McCartin that I was considering placing him in Ms Damschke’s team and Mr McCartin expressed his concern with this possibility. I clearly advised Mr McCartin that if this prevented him from returning to work, I would agree to place him with an alternative Team Coach. I certainly did not insist that Ms Damschke would remain his Team Coach.
My discussions with Mr McCartin were aimed at assisting him to return to work as soon as possible. I can assure Mr McCartin that I will accommodate his request to facilitate his return to work.
In oral evidence Ms Moretti stated that she made the written statement from her recollection, and had not taken notes at the time of the telephone conversation. She said that she has never met the applicant, but was aware that he had been a team member under her jurisdiction. She told the Tribunal that she signed the letter dated 25 January 2002, directing the applicant to attend Dr Smith, on advice from Mr B. O’Shea of Human Resources.
31. Under cross-examination Ms Moretti stated that during the telephone conversation she mentioned Ms Damschke’s team because she had spoken to Ms Damschke, whom she believed had a good working relationship with the applicant. Ms Moretti said that she was not aware of allegations by the applicant against Ms Damschke, or of the proceedings in the Tribunal the previous day. She denied any suggestion that the applicant was to be placed in Ms Damschke’s team as retribution for previous allegations made against Ms Damschke.
CONSIDERATION OF THE ISSUES
32. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
14.(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in s4(1) of the SRC Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Section 16(1) of the SRC Act provides:
16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
33. Mr Lenczner submitted that the applicant had to establish that he suffered an injury that arose in the course of employment, and that as a consequence he suffered a loss. Mr Lenczner said that Dr Cronin’s report dated 18 September 2004 (Exhibit A4) was the first time the applicant mentioned the telephone conversation, the Smith report and the Smith/Cronin consultation (the incidents). Mr Lenczner stated that there was no injury as defined in the SRC Act, merely a degree of upset or, at its highest, a short-term mild aggravation of an existing condition.
34. Mr Lenczner stated that any anxiety felt by the applicant as a result of the incidents was minor. Mr Lenczner referred to the evidence from Dr Strauss that the applicant suffered from a personality disorder but not a psychiatric condition. He said Dr Smith saw the applicant before the incidents, while Dr Shan found a paranoid personality disorder but no psychiatric condition. In respect of Dr Smith’s diagnosis of paranoid schizophrenia, Mr Lenczner acknowledged that no other psychiatrist shared this view. Mr Lenczner submitted that in all the circumstances there was no injury, and if there was an injury it was minimal. He noted that Dr Baro’s clinical notes did not refer to depression in any detail, and that the applicant had not told Dr Cronin until 2004 of the effects of the telephone conversation on him.
35. Mr Lenczner said that the applicant had telephoned Ms Moretti again, shortly after the telephone conversation, and that if he had been affected seriously he would have shown some signs, leading to the conclusion that he was not unduly shocked. Mr Lenczner said that the Tribunal should accept Ms Moretti’s evidence that she offered the applicant an alternative to working with Ms Damschke, and that any mild anxiety felt by the applicant would not have resulted in depression. Mr Lenczner referred to the entries made by the applicant in his notebook (Exhibit A5) and said that the first entry, regarding the applicant’s concerns following the telephone conversation, was made on 20 March 2002. In respect of the Smith report, Mr Lenczner said that the applicant was reassured by Dr Cronin within a short period that the diagnosis was incorrect.
36. In respect of the Smith/Cronin consultation, Mr Lenczner said that the applicant was told by Dr Cronin that there was no discussion with Dr Smith, and the applicant did not initially raise the matter with Dr Cronin, and therefore the applicant must not have considered the matter to be significant. Mr Lenczner said that the only matter that would have caused the applicant to be upset was his failure to be permitted to return to work. Mr Lenczner submitted that the applicant had identified to Dr Cronin other matters such as previous complaints about ATO management and the lack of protection of ATO staff. Mr Lenczner also noted that Dr Strauss had identified an element of manipulation by the applicant.
37. With respect to capacity for employment, Mr Lenczner said that Dr Cronin’s clinical notes show that the applicant complained of various matters after the telephone conversation, but not about work-related issues. Mr Lenczner emphasised that the applicant believed he was fit to return to work following the settlement date, and had stated to Dr Cronin that he was prevented from working for a few weeks by the telephone conversation, after which he made efforts to return to work. Mr Lenczner submitted that a mild aggravation had no impact on the applicant’s capacity for employment.
38. Mr Fehring submitted that on the settlement date the Tribunal acknowledged that the applicant had suffered from anxiety and depression, and he was advised by his barrister to contact Ms Moretti the next day to arrange a return to work. He said that Ms Moretti’s lack of knowledge of the allegations made by the applicant against Ms Damschke, and the failure by Mr O’Shea to inform Ms Moretti about the agreement reached on the settlement date, were a clear demonstration of poor management at the ATO. He said that, alternatively, Ms Moretti might have wanted to hurt the applicant in some way for his role as a whistleblower. Mr Fehring noted that Ms Moretti waited five months after the telephone conversation to compile her account, and that she had relied on her recollection rather than contemporaneous notes. He said that the applicant was shocked when he heard Ms Moretti raise the question of placement with Ms Damschke, and possibly in his shocked state he did not comprehend or hear the rest of the conversation.
39. Mr Fehring submitted that there was a chain of events beginning with the s 42C decision, then an intention by the applicant to return to work, followed by the telephone conversation, the Smith report and the Smith/Cronin consultation. Mr Fehring agreed that the applicant was a person who had displayed suspicious and paranoid traits, and said that there was no surprise that the applicant had found the events to be upsetting to the degree that led to depression and anxiety. He said that Dr Smith’s diagnosis of paranoid schizophrenia was a serious blow to the applicant’s capacity to cope, followed soon afterwards by the letter from Mr O’Shea stating incorrectly that Dr Smith had consulted Dr Cronin without the applicant’s consent.
40. In support of his submission Mr Fehring referred to the evidence from Dr Baro and Dr Cronin that the telephone conversation and the Smith report were a direct cause of the applicant’s depression. He stated that as treating doctors they were in the best position to assess the applicant’s condition. Mr Fehring emphasised that Dr Smith’s diagnosis was not supported by any other practitioner.
41. Mr Fehring stated that the Tribunal should not accept the evidence from Dr Shan because Dr Shan saw the applicant in September 2003 after the applicant had returned to work, so he was not in the best position to assess the applicant’s condition in 2002. Mr Fehring said that there was no basis for Dr Shan’s conclusion, that it was not possible that the combination of events caused the applicant to suffer depression.
42. On the question of entitlement, Mr Fehring submitted that the applicant was prevented from returning to work from the date of the telephone conversation (13 February 2002) until the letter from Mr O’Shea regarding alleged contact between Dr Smith and Dr Cronin (8 April 2002), which further incapacitated him until September/October 2002. He was then in a position to return to work, but he was not offered a position until 22 July 2003, and he returned to full-time work on 15 June 2004. Mr Fehring said that the latter date was the date when entitlement to compensation should cease.
43. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
44. The Tribunal accepts that the applicant is a person of a suspicious nature who displayed traits of paranoia. However, the Tribunal accepts the overwhelming medical evidence that the applicant did not suffer from paranoid schizophrenia as was diagnosed by Dr Smith. The Tribunal prefers the evidence from Dr Cole and Dr Cronin, who refer to anxiety and depression suffered by the applicant, and the evidence from Dr Cronin and Dr Shan who suggest a paranoid personality disorder.
45. In respect of the telephone conversation, the Tribunal accepts the applicant’s evidence that he felt upset and shocked at Ms Moretti’s actions in informing him that she was considering placing him in Ms Damschke team, without ascertaining from Human Resources the circumstances of the Tribunal’s decision reached on the settlement date or the feasibility of the proposal.
46. The Tribunal accepts the submission from Mr Fehring that, as a result of the telephone conversation, the applicant suffered an aggravation of his temporary episode of anxiety and depression, and that this occurred during the course of the applicant’s employment and constituted an injury under the Act. However, the Tribunal notes that the applicant contacted Ms Moretti the following day to discuss his return to work, and there appears to have been a constructive discussion between them, and that the applicant seemed to be keen to return to work at that time.
47. The Tribunal takes into account Dr Cronin’s description (in Exhibit A4) of the applicant’s reaction to the telephone conversation as a mild relapse of anxiety and depression. The Tribunal also notes that the applicant’s first entry in his notebook concerning the telephone conversation was made on 20 March 2002. In the circumstances the Tribunal concludes that any injury resulting from the telephone conversation had ended by the next day and did not result in an incapacity to work.
48. In respect of the Smith report, the Tribunal finds that the applicant was confused and anxious after being told of the diagnosis of paranoid schizophrenia. The Tribunal notes Dr Cronin’s evidence that the applicant’s paranoid personality disorder would not necessarily interfere with his capacity to work. The Tribunal notes further that Dr Cronin discussed the Smith report with the applicant and reassured him that Dr Smith’s diagnosis had no foundation. The Tribunal notes that Dr Baro stated that before 4 April 2002 the applicant was not under a high level of stress and had exhibited no clear signs of depression. As pointed out by Dr Shan, being upset does not necessarily mean that a psychiatric condition has been aggravated. The Tribunal finds that the applicant’s reaction to the Smith report did not constitute an injury under the Act.
49. In respect of the Smith/Cronin consultation the Tribunal acknowledges that when the applicant received the letter from Mr O’Shea dated 8 April 2002 he was concerned and upset at the suggestion that Dr Cronin had spoken to Dr Smith without his consent; and that the applicant viewed this as a serious breach of confidentiality. The Tribunal notes that there is no mention of the matter in either of the reports from Dr Cronin, or in the clinical notes prepared by Dr Baro, and that Dr Cronin reassured the applicant that he had not spoken to Dr Smith. In the circumstances the Tribunal finds that the applicant’s reaction to the Smith/Cronin consultation was within the range of normal reactions to adverse circumstances and did not constitute an injury under the Act.
50. For these reasons, the Tribunal finds that the applicant does not satisfy the criteria for compensation under s 14 or s 16 of the Act.
DECISION
51. The Tribunal affirms the decision under review.
I certify that the fifty‑one [51] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 8 October 2004, 2 February 2005, 3 February 2005,
24 March 2005 and 25 March 2005
Date of decision: 5 May 2005
Counsel for applicant: Mr I. Fehring
Solicitor for applicant: Opie & Co
Counsel for respondent: Mr J. Lenczner
Solicitor for respondent: Blake Dawson Waldron
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