Mitchell and Comcare
[2003] AATA 569
•18 June 2003
|
DECISION AND REASONS FOR DECISION [2003] AATA 569
ADMINISTRATIVE APPEALS TRIBUNAL )
)
) A2000/404 A2001/294
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | THOMAS ERNEST MITCHELL | ||
Applicant
| And | COMCARE |
Respondent
DECISION
| Tribunal | Ms G Ettinger - Senior Member |
Date 18 June 2003
PlaceCanberra
| Decision | A2000/404 The Tribunal sets aside the decision of Comcare made in matter A2000/404 in regard to incapacity, and in substitution therefor, finds that the Applicant, Mr Thomas Ernest Mitchell continued to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, and as a result of the incident of 16 February 1993 (electrocution), after cessation of liability by the Respondent. The Tribunal affirms that part of the decision in matter A2000/404 which deals with the issue of permanent impairment which was not litigated before it. A2001/294 The Tribunal sets aside the decision in matter A2001/294, and in substitution finds that the Applicant, Mr Thomas Ernest Mitchell continues to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 after cessation of liability by Comcare, and as a result of the accident incurred at work on 24 January 1996 (fall). Costs are awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and in accordance with the Tribunal’s Practice Direction. |
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - whether injury/disease – whether effects of 1993 electrocution at work continuing – whether aggravated by fall at work in 1996 – liability accepted for closed period – 10 percent permanent impairment previously accepted - whether incapacity for work – decision set aside -
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24 and 27
CASE LAW
Re Smith v Comcare (1996) 39 ALD 715
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Bashar v Comcare [2002] FCA 837
Telstra Corporation Ltd v Barrow (1994) 35 ALD 461
Comcare v Mooi (1996) 69 FCR 439
Kirkpatrickv Commonwealth of Australia (1985) 9 FCR 36
Casarotto v Australian Postal Commission (1989/90) 17 ALD 321
Commonwealth v Beattie (1981) 53 FLR 191
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
| 18 June 2003 | Ms G Ettinger - Senior Member Dr M Miller AO - Member |
The decisions under review before the Administrative Appeals Tribunal (“the Tribunal”) were as follows:
A2000/404: This matter concerned the appeal of Mr Thomas Ernest Mitchell against the decision of Comcare of 20 September 2000 (T87), which affirmed a decision of Comcare dated 28 July 2000 (T80) to disallow the Applicant’s claim for compensation for incapacity for work and medical treatment in relation to “electric shock resulting in depression and anxiety and musculo ligamentous strain to the lower back”, and also denied liability to pay further compensation in relation to permanent impairment. The Respondent noted from that decision that Mr Mitchell had been awarded a 10 percent whole person permanent impairment pursuant to Table 5.1 of the Comcare Guide in respect of the injury of 16 February 1993 (sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).
A2001/294: This matter dealt with the appeal of Mr Thomas Ernest Mitchell, the Applicant, against the decision of Comcare of 25 February 2000 (ST37, Exhibit R2), which affirmed the decision of Comcare of 13 May 1996 (ST21, Exhibit R2), to accept liability for compensation only for the period 24 January 1996 to 16 April 1996 pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, in respect of an injury claimed by the Applicant to have been an “episode of post concussional syndrome”.
On 21 October 2001, the Independent Review Officer of Comcare varied the decision of 25 February 2000 and determined that on and from 27 July 1996, Mr Mitchell did not suffer from an injury, “episode of post concussional syndrome”, and that he was not entitled to compensation under any provision of the Act on and from 27 July 1996. She also varied the reviewable decision of 25 February 2000 and determined that Mr Mitchell was entitled to compensation pursuant to sections 19 and 16 of the Safety Rehabilitation and Compensation Act 1988 for the period 17 April 1996 to 26 July 1996 inclusive, with entitlement ceasing from 27 July 1996.
The Applicant appealed on 19 July 2001 (A2001/294), seeking an extension of time to lodge his claim.
At the Hearing, the Applicant, Mr Thomas Ernest Mitchell, was represented by Mr A Anforth of counsel instructed by Capital Lawyers, and the Respondent, Comcare, by Mr J O‘Donovan of counsel, instructed by the Australian Government Solicitor.
BACKGROUND
The Tribunal noted by way of background, and accepted that Mr Mitchell had suffered two accidents during his employment at the Canberra Institute of Technology (“CIT”). He was electrocuted when he switched on a mortar mill in the course of his work on 16 February 1993. Mr Mitchell claimed that he suffered injury when he was thrown by the force of the electric shock against a wall of bricks. Liability was accepted by Comcare for “electric shock resulting in depression and anxiety and musculo-ligamentous strain to the lower back”.
In December 1995, Mr Mitchell was awarded a 10 percent whole person permanent impairment for Post Traumatic Stress Disorder (“PTSD”) pursuant to Table 5.1 of the Comcare Guide in respect of the injury of 16 February 1993 (sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988).
A second incident occurred on 24 January 1996 when Mr Mitchell reported that his legs gave way under him and he “fell back and hit my head on concrete floor”. Liability was accepted by Comcare for “episode of post concussional syndrome” for the period 24 January 1996 to 17 April 1996, ultimately extended to 26 July 1996 inclusive.
Mr Anforth told the Tribunal that the electrocution incident caused the main damage to Mr Mitchell. He said in his opening that arising from the two incidents, were psychological and neurological symptoms including depression and anxiety. He indicated that the Respondent claimed Mr Mitchell’s problems arose out of a personality disorder, but that Mr Mitchell had in fact few symptoms before the electrocution, and then the fall, and if indeed he had a personality disorder, then the incidents may have unmasked the disorder. He submitted that Mr Mitchell now had brain injury, which therefore was compensable. He had suffered concussion followed by persistent headache following the incidents Mr Anforth claimed.
The Tribunal was mindful that neither incident had been witnessed by any colleague of Mr Mitchell, but that the Respondent accepted certain liability for both, not querying that the electrocution had indeed occurred. Notwithstanding the acceptance of liability for a certain time, the Respondent however expressed doubts over the 1996 incident.
The Tribunal noted that Mr Mitchell returned to work after periods on compensation, was transferred from the Bruce Campus to Fyshwick, and to Weston, and given various light, and different duties. He was assigned rehabilitation providers.
Mr Mitchell took voluntary redundancy on 20 September 1996. The Tribunal noted that he gave evidence at the Hearing stating that he did not fully understand the implications of this, was not well advised, and took the redundancy because he badly needed the money to repay debts.
ISSUES BEFORE THE TRIBUNAL
The Tribunal had to decide:
Whether Mr Mitchell continued to suffer injury pursuant to section 4 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”), and was incapacitated for work as a result of the electrocution of 16 February 1993, and whether he was entitled to further compensation pursuant to section 14, of the Act after cessation of liability for his condition of “electric shock resulting in depression and anxiety ligamentous strain to the lower back”;
Whether Mr Mitchell continued to suffer further from “episode of post concussional syndrome” pursuant to section 14, of the Act as a result of an incident, a fall, which took place at work on 24 January 1996, and whether he was entitled to further compensation in respect of that condition under any provision of the Act;
Whether the Applicant has required medical treatment for his conditions pursuant to section 16 of the Act on and from dates when the Respondent ceased liability.
The Tribunal noted that Mr Mitchell had in 1995, been paid 10 percent permanent impairment arising out of the electrocution of January 1993 for Post Traumatic Stress Syndrome, (“PTSD”), and was not claiming further compensation before this Tribunal pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment arising out of the incidents of 16 February 1993 and/or 24 January 1996. Accordingly the Tribunal affirmed the decision of the Respondent in that regard.
LEGISLATIVE FRAMEWORK
The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, and 16.
Section 4 of the Act defines “disease” and “injury” and follows as relevant:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“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 14(1) of the Act provides that:
“14 Compensation for injuries
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.
16 Compensation in respect of medical expenses etc.
(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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (‘the AAT Act”), the (“T-Documents”), in matters A2000/404, and A2001/294. The following other documents were admitted into evidence:
| ITEM | DATE | NAME |
| Statement - Mr Thomas Mitchell | 11 September 2002 | Exhibit A1 |
| Report - Dr R K Gupta | 18 March 1993 | Exhibit A2 |
| Letter - Langley & Pino, Optometrists to Solicitors Gary Robb & Associates | 16 June 1998 | Exhibit A3 |
| Report –Dr Steven J Dawson | 18 July 2001 | Exhibit A4 |
| Report - Dr Steven J Dawson | 13 February 2002 | Exhibit A5 |
| Report - Dr Steven J Dawson | 16 October 2001 | Exhibit A6 |
| Report – Dr Steven J Dawson | 8 December 1999 | Exhibit A7 |
| Statement – Mrs Dorothy Anne Mitchell | 31 May 2002 | Exhibit A8 |
| Report - National Capital Diagnostic Imaging | 10 February 2000 | Exhibit A9 |
| Report National Capital Diagnostic Imaging | 3 May 2000 | Exhibit A10 |
| Summary of Accounts - Dr Edwin J Cassar | 7 November 2002 | Exhibit A11 |
| Report - National Capital Diagnostic Imaging | 2 March 2000 | Exhibit A12 |
| Report - Dr Edwin J Cassar | 19 November 2002 | Exhibit A13 |
| Report - Dr Edwin J Cassar | 22 June 2000 | Exhibit A14 |
| Report - Dr Edwin J Cassar | 11 September 2000 | Exhibit A15 |
| Report - Dr Edwin J Cassar | 23 March 2000 | Exhibit A16 |
| Report - Dr Edwin J Cassar | 3 July 2001 | Exhibit A17 |
| Report – Dr Edwin J Cassar | 19 September 2001 | Exhibit A18 |
| Statement - Mr George Cheetham | 2 December 1999 | Exhibit A19 |
| Letter - Mr A Gerrard to Mr I Goch | 2 April 1996 | Exhibit A20 |
| File Note - Mr A Gerrard re Mr Mitchell | 6 July 1999 | Exhibit A21 |
| Statement – Mr Norman Johnson | 29 June 2000 | Exhibit A22 |
| Statement – Mr Desmond P Lyons | 19 March 2001 | Exhibit A23 |
| Statement – Mr William J Edwards | 25 August 2000 | Exhibit A24 |
| Statement – Mr Robert Ray | 28 June 2000 | Exhibit A25 |
| Letter - Mr Roger Rose | 28 April 1993 | Exhibit A26 |
| Medical Certificate - Dr Stephen J Moulding | 22 May 1996 | Exhibit A27 |
| Report – Dr Stephen J Moulding | 1 July 1996 | Exhibit A28 |
| Report - Dr Stephen J Moulding | 9 March 1999 | Exhibit A29 |
| List of Mr Mitchell’s prescriptions | November 2002 | Exhibit A30 |
| Report - Dr Anthony Walsh | 12 November 2002 | Exhibit A31 |
| Statement – Mr David M Watson | 3 July 2000 | Exhibit A32 |
| Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 – A2000/404 & A2001/294 | T-documents | Exhibit R1 |
| Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 – A2000/404 & A2001/294 | T-documents | Exhibit R2 |
| AFP Record | 15 August 2002 | Exhibit R3 |
| Condobolin District Hospital | 1985 | Exhibit R4 |
| Calvary Hospital (2 pages) | February & May 1993 | Exhibit R5 |
| Weston Creek Physiotherapy Clinic | 18 June 1993 | Exhibit R6 |
| Report - Dr R K Gupta | 5 April 1993 | Exhibit R7 |
| Clinical Notes - Dr J Reeve | 1993 - | Exhibit R8 |
| Statement – Mr Roger Rose | 19 November 2002 | Exhibit R9 |
| File note – Mr Roger Rose | 2 November 1993 | Exhibit R10 |
| Minute – Mr Roger Rose | 18 October 1993 | Exhibit R11 |
| Notes – Dr Stephen Moulding | 1996 - | Exhibit R12 |
| Treating doctors form - Centrelink | 3 February 1999 | Exhibit R13 |
| Report - Dr Roger Tuck | 5 May 1998 | Exhibit R14 |
| Return to work assessment - Dr John Reeve | 5 May 1994 | Exhibit R15 |
| Report - Dr F Roldan | 12 September 2002 | Exhibit R16 |
| Facsimile - REACT to Ms J Gladman | 1 September 1993 | Exhibit R17 |
| File Note – Ms S Bloxham | 4 May 1995 | Exhibit R18 |
| Minute - Ms J Gladman | 2 November 1995 | Exhibit R19 |
| Rehabilitation Report Ms S M Campbell | 3 April 1995 | Exhibit R20 |
| Leave Records - Mr T Mitchell | 1993 - 1996 | Exhibit R21 |
| Report – Dr Colin J Andrews | 2 September 1996 | Exhibit R22 |
| Report - Dr Colin J Andrews | 29 May 2002 | Exhibit R23 |
| Report - Dr Colin J Andrews | 10 December 1996 | Exhibit R24 |
Oral evidence was given by:
Mr Thomas Ernest Mitchell, the Applicant
Mrs Dorothy Anne Mitchell, mother of the Applicant
Dr Edwin Cassar, physician, Director of Pain Clinic
Mr George Edward Cheetham, work colleague of the Applicant
Mr Norman Johnson, previously the Applicant’s supervisor
Mr Desmond Patrick Lyons, work colleague of the Applicant
Mr William James Edwards, work colleague of the Applicant
Mr Robert Ray, work colleague of the Applicant
Mr Roger Norman Rose, former Head of School/Head of Faculty, School of Construction and Engineering Studies, Canberra Institute of Technology (“CIT”)
Dr Graeme George Griffith, surgeon
Dr Stephen Dawson, clinical psychologist
Dr Jacques Joubert, neurologist
Dr Fernando Hector Roldan, clinical psychologist
Dr Colin James Andrews, neurologist
Dr Anthony William Walsh, clinical neuropsychologist
Dr Edwin Joseph Cassar, consultant physician
Dr Stephen Stern, psychiatrist
Dr R Gupta, psychiatrist
Dr Stephen John Moulding, general practitioner
EVIDENCE OF MR THOMAS ERNEST MITCHELL – THE APPLICANT
Mr Mitchell whose date of birth is 17 March 1963, and whose statement dated 11 September 2002 was Exhibit A1 before the Tribunal, gave oral evidence.
Mr Mitchell gave evidence that his schooling was to first year high school, and that he left school at age 14.5 years. He said that he could read and write and was “pretty good” at maths which he subsequently used in his saw mill jobs. He said that the Condoblin saw mill closed, and he transferred to Canberra in 1986. He said that his car was stolen and he could not go to work for 12 months.
Mr Mitchell gave evidence that at age 17 he had had problems involving motor vehicle offences, and in 1980 was involved in a break, enter and assault. He said he then had an episode in 1985 when his best friend had been “playing up” with his girlfriend, and he attempted suicide by taking strychnine. He said that he had entered a psychiatric institution in Orange, New South Wales voluntarily, and spent some four to six weeks there. He had taken anti-depressants for two to three months before returning to work at the saw mill. When asked in cross-examination whether he had engaged in self-mutilation in his youth, Mr Mitchell first denied doing it, then admitted it had occurred, once only.
The Tribunal noted from the cross-examination that Mr Mitchell had also been charged with other offences, amongst them, dangerous driving while unlicensed in 1988, amphetamines in 1990, discharging a shotgun in 1990, injuries as a result of a fight in 1991, assault in a taxi in 1991. When asked whether he was a volatile angry person prior to 1991, Mr Mitchell denied being thus, saying that he was bowling and enjoying himself.
Mr Mitchell said that he had married in September 1996.
He joined the Canberra Institute of Technology (“the CIT”), in 1990, in the mortar trades area as a teacher’s assistant, having previously worked as a mower mechanic for one and a half years. He had had various injuries such as when a piece of timber hit him when a saw shattered.
Mr Mitchell said that when he joined the CIT he had no problems with his back, neck or arms, no depression, and no headaches unless he had a cold or flu. Mr Mitchell gave evidence that in the twelve months before February 1993, he was in perfect health, doing brick laying, diving and bowling. He said that he rode a bicycle, went ten pin bowling, swimming and diving.
The job at the CIT in the mortar trades area was as a teachers’ assistant, and there were four or five supervisors, Mr Mitchell said. He said that they all told him to do different things, and he could never get it right. He admitted he had had one or two arguments before the accident in February 1993. His duties included cleaning bricks, sweeping, knocking down walls the students had built, and generally servicing the area. Mr Mitchell described it as a two person job, and said that he was the only one doing it.
Mr Mitchell gave evidence that on the morning of 16 February 1993, he routinely switched on the mortar mill which had been taken away for servicing during the summer break. He explained that he received an electric shock which threw him some metres against a brick wall, and that he suffered injury to his lower back. Mr Mitchell said that he had pain in his arms, legs and all over, and a week later was bruised all over his back. He said that he had headaches but that he just kept going, and ended up taking “too many Panadol.”
Mr Mitchell said that he reported the accident immediately afterwards, and was given a cup of tea. He said he could not remember much about that day; it seemed hazy. He said that Roger Rose, the head of department did not take him seriously, and told him “git down there and make more mud”.. However, because everything was hurting and he could not stand up, he drove himself to the hospital.
Mr Mitchell said that he was upset about Mr Rose asking him when he later showed him his severely bruised back, whether his wife had kicked him out of bed. Mr Mitchell said that he was separated at the time. He said “I lost me block”. Mr Mitchell also told the Tribunal that there had been a petition by various members of staff with regard to Mr Rose’s style of management. Mr Mitchell said that when he told Dr Gupta of this incident, Dr Gupta had advised him to get a picture of Mr Rose and punch it. He said Dr Gupta had also advised him to change jobs, and indeed after throwing a chair at the storeman, he was transferred to Fyshwick Campus.
Mr Mitchell said that after the electrocution, he had a week off work, and then was moved to Norm Johnson’s area, for six or seven months, handing out tools. He said several times throughout his evidence that he loved working, although he regretted on one occasion, throwing a chair at Mr Johnson. He said that he was hurting and no one was listening.
Mr Mitchell told the Tribunal that he went to see his mother’s general practitioner Dr Reeve about the bruising. He said that Dr Reeve told him various tests were not available to him because they cost the government too much. He mentioned his dissatisfaction with Dr Reeve several times during his evidence and said that later, in 1995, he moved to consult Dr Stephen Moulding, whom he still sees. Mr Mitchell told the Tribunal that Dr Reeve prescribed anti-depressants, and that Dr Moulding referred him to Dr Gupta whom he consulted three or four times.
Mr Mitchell said that after the electrocution on 16 February 1993, his body was aching, he had headaches, bruising and he was “chewing Panadol and working”, but kept away from using electrical equipment. He said that he had problems with sleep, his back hurt, and at night his legs “jumped”.
Mr Mitchell told the Tribunal that the electrocution destroyed his life. Amongst other things, he said that he was not permitted to do his apprenticeship or drive.
Mr Mitchell was referred to the report of Dr G Griffith, surgeon, which was dated 17 February 1994, and was before the Tribunal at T50. Dr Griffith had recorded that Mr Mitchell was “taking no drugs at the moment except occasional Panadol.” Mr Mitchell denied he had given the doctor that information, saying that he took Mersyndol and large quantities of Panadol as well as morphine. He said that he had asked his employers to take the Panadol out of the first aid kit because he had been helping himself to them.
The Tribunal noted also that Dr Griffith wrote to Comcare on 17 February 1994 as follows (T50/88):
“I am somewhat at a loss to understand why liability has not been accepted for the back problem. He has no history of back injury prior to this incident, and having regard to the circumstances in which the injury was sustained, the forces involved, and the development of a long lasting bruise … it would be reasonable to conclude that there was in fact a definite causal relationship between the incident described and the later development of symptoms in this area.”
Mr Mitchell was cross-examined about his assessment by Dr S Stern, psychiatrist, at the request of his solicitors, on 14 October 1994. The report of Dr Stern was at T60. Dr Stern reported that Mr Mitchell told him of a headache at the time of the electrocution, but recorded a diagnosis of moderate PTSD and the complaints on 14 October 1994, as:
“1. Feeling angry, agitated and depressed.
2. Wariness of electrical equipment.
3. Occasional low back pain.”
Dr Stern was apparently not told of Mr Mitchell’s earlier psychiatric problems as he wrote: “He said there were no psychiatric problems prior to the work accident of February 1993.” Dr Stern also opined that Mr Mitchell suffered from:
“moderate post-traumatic stress disorder … This has been caused by the electric shock at work on 16 February 1993 and the resultant injuries. … His psychiatric prognosis is of some residual depressive and phobic symptoms.”
Mr Mitchell was also referred to the “Non-Economic Loss Questionnaire” at T66 completed on 14 June 1995, in which there was no mention of headaches. Mr Mitchell said that he suffered headache at that time, and that for him not to have recorded it, he “must had had a real good day”.
Mr Mitchell was also referred to the report of Dr M Nathar, psychiatrist, dated 22 June 1995 which reported to Comcare, an assessment made on 14 June 1995 (T68). When asked about the statement made by Dr Nathar that he did not have any memory problems or nightmares, Mr Mitchell replied that he disagreed. He said that after the accident he used to wake up in a sweat, and was unable to dream. He said he went to bed and it was all a blank. He added that in 1995 he did not yet know if he had memory problems, and said that it was when he moved to the Fyshwick Campus that he noticed difficulties with his memory. Mr Mitchell said that at Weston his supervisor wrote up the duties on a board so memory was not a problem.
Mr Mitchell was referred to the statement of Dr Nathar stating that Mr Mitchell disclaimed any past psychiatric or personality difficulties, which he found was at variance with the Applicant’s file notes. Mr Mitchell replied that his history had nothing to do with the way he was after the electrocution, and hence he did not feel he had to disclose everything to everyone.
FYSHWICK CAMPUS
Mr Mitchell told the Tribunal that he moved to Fyshwick in November 1993 where he worked with steel and drove fork lifts. He said that he was on medication and coping. However, it was slow and he got bored.
The Tribunal noted from T45, a report of dated 11 January 1994 of CMO Dr J Hudspith, that Mr Mitchell was making good progress in his recovery from the effects of the electrocution. Dr Hudspith mentioned that backache was still a problem but did not mention headache.
Mr Mitchell was also asked about his appointment with Dr Glaser, psychiatrist on 14 February 1994. The report of Dr Glaser dated 4 March 1994 was before the Tribunal at T51. He stated specifically that Mr Mitchell had “low back pain … He does not suffer from pains elsewhere…” When questioned, Mr Mitchell was unable to explain why Dr Glaser had not mentioned headache or neck pain as he said he would have mentioned it to the doctor.
Dr Glaser also opined that Mr Mitchell was suffering from a “post-traumatic stress disorder of mild severity”, and that: “As a result of this gentleman’s compensable condition, he is prevented by reason of his clinical state, from returning to work at the Bruce Campus.”
When asked about Dr Glaser’s annotation of Mr Mitchell being a non-drinker, the Applicant said that he was a social drinker, and only drank alcohol occasionally over the past five or six years. The Applicant acknowledged in reply in cross-examination that he was charged with assault on 12 February 1997, but said that he did not carry out any assault and that he was acquitted. He agreed he had been drunk at the time, and said he drank because the pain in his head was driving him mad.
There was a further notation regarding alcohol consumption at T68, a report of Dr M Nathar, psychiatrist who examined the Applicant on 14 June 1995. Mr Mitchell confirmed he had told Dr Nathar that he gave up drinking when he married, and again after the electrocution incident.
WESTON CAMPUS - FALL IN 1996
Mr Mitchell told the Tribunal that he worked at Weston Campus from April 1994 to September 1996 when he took voluntary redundancy. He said the work was mower mechanic work with which he was familiar.
Mr Mitchell said that he suffered headaches either weekly or fortnightly which would last two to three days. He said that he had a stabbing pain in his head permanently, and would be conscious of it every three to four hours. Mr Mitchell said that he was chewing Mersyndol or Panadol and was not taking morphine at the time of working at Weston Campus.
Mr Mitchell told the Tribunal that on 24 January 1996, he was in the workshop at Weston Campus when his legs went out from under him, he fell over and hit his head on the concrete in the workshop. He said that he told the gardeners, and his boss, Anthony Gerrard, took him home. He said that he had a pain in his head, and neck, and that he attended at Dr Moulding. He said that he had perhaps two days off and returned on light duties doing gardening, washing pots, and looking after the place generally. Mr Mitchell told the Tribunal that Dr Moulding referred him to Dr Cassar, whose evidence was before the Tribunal, and is discussed further on in these Reasons for Decision.
When asked about his headaches after the 1996 fall, Mr Mitchell told the Tribunal that he still had headaches, even after taking morphine, and that it was the same pain as after the electrocution in 1993. He said that his right side was more sensitive, and he had sharp shooting pain. In that connection he said the right side of his face was so sensitive he could not touch it. He said that his head, neck and face hurt more when it was cold, and that even at the date of the Hearing, he became dizzy at times when he stood up. He said that occasionally he even fell over.
When asked in cross-examination why there was no mention of a head injury at T3, the accident report, Mr Mitchell said that he had not filled in the form himself, further that he was hurting all over, and that accordingly, some things might have been missed. It was noted similarly that on admission to Calvary Hospital, there was no headache recorded. Again, Mr Mitchell answered by saying that everything hurt, his chest, arms and other parts of his body.
Mr Mitchell told the Tribunal he had been at Weston when he met Joanne, his future wife. He said that he was happy at Weston campus because the people were nice, but that he was mainly bad tempered because he felt pain.
Mr Mitchell gave evidence of negotiations regarding his redundancy, and the financial pressures he faced in September 1996 which caused him to sign the agreement so that he could pay his debts. He said that he had not had good independent advice about taking a redundancy. One of the reasons related to the need for money was, Mr Mitchell said, that he had been pulled over by the police for not wearing a seatbelt and fined $1,050, and that he had warrants out on him. He said that he borrowed the money from Joanne’s mother to pay the fine because he had no sick leave left, and was not being paid at work.
Mr Mitchell told the Tribunal that in April 1997 he had travelled to Melbourne to try and obtain work he could do, when he was notified that Joanne had died in a motor vehicle accident, leaving him with her five children, some of whom were severely injured in the accident. He said that he had other problems with the children, and court action was still ongoing. Mr Mitchell said that he cared for eight children of the blended family in his home.
When asked about management of his pain from his redundancy in 1996, Mr Mitchell told the Tribunal that Dr Reeve had referred him to Dr Gupta, and Dr Moulding referred him to Dr Cassar and a pain management clinic in May 1999. He had also consulted Dr Dawson who had helped him with techniques for remaining calm, and continued to do so.
Mr Mitchell told the Tribunal he had been referred to Dr Cassar in December 1999 for acupuncture, laser and other treatment, and consulted him weekly for ten weeks, and again later.
Mr Mitchell told the Tribunal that if his headaches became really severe, he would take morphine or attend hospital. Mr Mitchell said that at one time he took 60 mgs twice a day, and was now on 20 mgs twice a day.
Throughout his evidence Mr Mitchell claimed to have memory loss, and indeed the sequence of events he gave did not always accord with dates in the documentation.
MRS DOROTHY ANNE MITCHELL – MOTHER OF THE APPLICANT
Mrs Mitchell, whose report dated 31 May 2002 was before the Tribunal as Exhibit A8, gave oral evidence. She gave evidence about an occasion of self mutilation of the Applicant, then aged 14 or 15, and said that it was attention seeking behaviour. She also referred to an attempted suicide, saying Mr Mitchell stayed in hospital as a voluntary patient for a week or so afterwards, that it was not serious, and that he wanted to sort himself out regarding a girl.
Mrs Mitchell said that the Applicant had lived with her from 1988 to 1994, and that he had a good social life, two jobs, went fishing, bowling, and diving. She said that he was not violent, but agreed that if provoked, he could have a temper outburst. She said that in that period he had bruises like all boys, and had skinned knuckles because someone had hit him with a bottle.
Mrs Mitchell told the Tribunal that her son did not have any memory problems between 1988 and 1993. Neither could she recall that he had any disputes at work. Mrs Mitchell said that after the electrocution her son’s memory became gradually worse, and he was moody and angry at how he had been treated. She also referred to his reports of stabbing pains in his head. Mrs Mitchell could not recall whether the pains were on the left or right side. Mrs Mitchell said that after her son moved out in 1994, she did not know too much about his medication. She said that she did not see him often, particularly between 1994 and 1996 because she could not handle his anger. She said that in 1993/4, the stabbing pain was present almost every day and prevented him from fishing, driving and bowling.
Mrs Mitchell confirmed that after the 1996 fall, her son continued to have stabbing pains. She said that in 1997, he lost his brother and his wife, and had insufficient time to grieve. She said that her son’s memory loss was exacerbated in 1997.
Mrs Mitchell said she was surprised to hear that the Applicant had not told various doctors about his headaches.
The Tribunal understood Mrs Mitchell’s desire to assist her son with her evidence, but was mindful he had not lived with her after 1994, and that between 1994 and 1996, she had not seen him much. Accordingly her evidence was only of limited assistance to the Tribunal.
The Tribunal then moved to consider the evidence of the lay witnesses, noting that the evidence of Mr Mitchell’s work colleagues and supervisors centred around his claimed change in personality after the electrocution. The evidence of the lay witnesses follows.
EVIDENCE OF WORK COLLEAGUES REGARDING CHANGE IN PERSONALITY AFTER THE ELECTROCUTION
MR GEORGE EDWARD CHEETHAM – CIT TEACHER IN CABINET MAKING
Mr Cheetham whose statement dated 19 March 2001 was before the Tribunal as Exhibit A19, gave oral evidence. Mr Cheetham told the Tribunal that Mr Mitchell worked in his area, and that he knew him for a few months before the accident. He said that he found Mr Mitchell to be a sincere man with a bush background who was not hard to get on with, and was reliable.
Mr Cheetham said that he was not present when Mr Mitchell suffered the electrocution, but continued to work with him after that incident, stating in his written report that:
“ 21. …Tom seemed to have changed after the accident.
22. He was more introverted, more aggressive, and would often get into arguments with people.
23.I noticed that his work performance had dropped off markedly … He seemed to be working slower at most tasks.
24. His concentration and ability to focus on the task had greatly reduced. …”
He corroborated the above in his oral evidence, and said that after the electrocution, Mr Mitchell complained frequently of pain in his back, neck, shoulders, and of headaches.
Mr Cheetham said that Mr Mitchell’s duties after the electrocution were still cleaning of bricks, mixing mortar and sweeping, but added that the Applicant’s concentration was not good, and others helped him with the work. Later Mr Mitchell was transferred to the store, handing out equipment, and then in November 1993, to Fyshwick Campus, he said.
MR NORMAN JOHNSON – RETIRED STORES SUPERVISOR (BRICKS)
Mr Johnson whose statement of 29 June 2000 was before the Tribunal as Exhibit A22, gave oral evidence before the Tribunal, and said that he retired in 1995/6. He had been stores supervisor in charge of bricks, although when Mr Mitchell commenced work at the CIT, they had worked at the same level he said. Mr Johnson said that he drove Mr Mitchell to and from work from time to time.
Mr Johnson told the Tribunal that Mr Mitchell was a reliable worker and of good humour before the electrocution, noting that he had a “bit of a temper” but was mostly jovial.
Mr Johnson said that his contact with Mr Mitchell after the electrocution was mostly on an informal basis in the tea room, and occasionally outside of work. He said that after the electrocution Mr Mitchell was moody and depressed, and he kept out of Mr Mitchell’s way. He said he would “fly off the handle” and complained of headaches and back pain. Mr Johnson said that the Applicant took Disprin and Aspro after the electrocution. In cross-examination, Mr Johnson was asked about paragraph nine of his Statement (Exhibit A22) in which he had mentioned the Applicant’s complaints of chest and back pain, but no headache. Mr Johnson said in reply that he had not seen Mr Mitchell for two years.
Mr Johnson said he knew about the supposed joke Mr Rose had made about Mr Mitchell and his wife throwing him out of bed which had upset the Applicant. He told the Tribunal he was one of the signatories of the petition regarding dissatisfactions with Mr Rose’s style of management.
When cross-examined, Mr Johnson said he was not aware that Mr Mitchell had been involved in a fight, and that the police had been called. Mr Johnson said he did not know about an incident in which a shotgun had been discharged in Mr Mitchell’s home. He also said that he could not remember being chased with a chair by Mr Mitchell. The Tribunal considered the last event in particular was one which would not easily be forgotten, and was therefore not satisfied with Mr Johnson’s evidence which it considered would not assist the Tribunal greatly.
MR DESMOND LYONS – WORK COLLEAGUE
Mr Lyons whose statement of 19 March 2001 was before the Tribunal as Exhibit A23, gave oral evidence. Mr Lyons’ statement was concerned with identifying the electrical contractor who rewired the electricity supply to the mortar mill implicated in Mr Mitchell’s electrocution.
Mr Lyons said that he was employed at the CIT in the Construction Studies Department and first came into contact with the Applicant at the Bruce Campus in 1989, and saw him from time to time. When asked how Mr Mitchell appeared to him, he said that he did not like to form opinions but accepted people as they were. This was followed by criticism of Mr Roger Rose, Mr Bob Thompson and the morale at Bruce Campus. He said that he was a signatory to the petition regarding Mr Roger Rose, and participated in the hunger strike.
Mr Lyons described Mr Mitchell after the electrocution as one of those strong people who overcame the shock and survived. He said that he did not know of any fights in which Mr Mitchell had been involved, neither about any shotgun being discharged in the Applicant’s home. The Tribunal did not consider the evidence of Mr Lyons of great assistance to it.
MR WILLIAM JAMES EDWARDS – WORK COLLEAGUE
Mr Edwards whose statement of 25 August 2000 was before the Tribunal as Exhibit A24, gave oral evidence. He stated that he worked at the CIT Bruce Campus in maintenance for 22 years, and wrote that he had been Campus Manager since 1990. Mr Edwards stated the history of the repair of the mortar mill in his statement, and said that after the electrocution accident, he had earth leakage protection installed on the circuits in the bricklaying area which had not previously had them.
Mr Edwards said that he knew Mr Mitchell and occasionally socialised with him. He said that he was aware of the Roger Rose petition but did not sign it, because being in building maintenance, it had nothing to do with him.
MR ROBERT RAY – WORK COLLEAGUE
Mr Ray whose statement dated 28 June 2000 was before the Tribunal as Exhibit A25, told the Tribunal in his oral evidence that he worked with Mr Mitchell at the CIT. He said that as a trades assistant, he had some interaction with the Applicant daily at Bruce Campus, in fact hourly, as they worked together servicing student needs for bricks, and got together outside work via the CIT social club (ten pin bowling and having meals together).
Mr Ray told the Tribunal that Mr Mitchell was prone to arguments at work after the electrocution, but not before. He said that he did not see him as much after the electrocution but remembered seeing him the day after, covered in bruises. He said he was aware Mr Mitchell was very angry after the electrocution but did not know why, and said he was bad tempered. One had to be careful what one said to him, Mr Ray said. Mr Ray said that there was consensus amongst Mr Mitchell’s co-workers that Mr Mitchell was hard to get on with after the electrocution, and said that the Applicant complained of bad headaches.
Mr Ray said that after the electrocution the Applicant came to the first aid cabinet and took all the Panadol to the extent that he was concerned about the amount of consumption by Mr Mitchell. He said that the CIT stopped stocking Panadol as a result.
Mr Ray said that the staff morale was up and down at the time of the electrocution and said he knew of the petition which had been organised criticising the management style of Mr Rose.
MR ROGER NORMAN ROSE - FROM 1989, HEAD OF SCHOOL/HEAD OF FACULTY, SCHOOL OF CONSTRUCTION AND ENGINEERING STUDIES
Mr Rose whose statement dated 19 November 2002 was before the Tribunal as Exhibit R9, gave oral evidence. Other relevant documents before the Tribunal were Exhibits R10 and 11, and A26.
Mr Rose corroborated Mr Mitchell’s evidence that he was required to work for a number of teachers, some of whom could be demanding. However Mr Rose observed in his statement (Exhibit R9) that (pre the electrocution), Mr Mitchell had difficulty setting priorities, and that he would become upset about his workload. He referred to incidents of violence outside the workplace, referring amongst others to an incident he said Mr Mitchell told him about which was that his partner cut him on the arm in late 1990. He also said that he became aware in October 1993 that in about 1991 Mr Mitchell had fired a shotgun inside his house.
Mr Rose denied that he had asked Mr Mitchell to mix another load of cement after the accident, saying that he was not present on campus at the time of the accident. He also said that he was aware Mr Mitchell had suffered bruising on his legs and back, but said he had never complained to him about hitting his head or having any head injury. Mr Rose said that he did not notice any drop in Mr Mitchell’s intellect or ability to do his work after the accident, agreeing however that he was afraid of the cement mixer. Accordingly, Mr Rose said, Mr Mitchell was transferred first to Fyshwick Campus and then to Weston (early 1995), where there was horticultural work including mower maintenance, and where he understood Mr Mitchell was performing well, and happy.
In his report at Exhibit R10, Mr Rose also denied that he made a disparaging remark about Mr Mitchell’s wife and the origin of the bruises, stating that: “If I made the comment regarding the origin of the bruises it would have been in a jocular manner.” In his oral evidence Mr Rose admitted he had made the remark.
The Tribunal noted that on 18 October 1993, (Exhibit R11), Mr Rose wrote to the Staff Rehabilitation Officer about Mr Mitchell, with concerns over his aggressive attitude and behaviour towards staff members, and referred to his physical limitations and those imposed by his use of prescribed drugs which affected his work.
In his oral evidence Mr Rose described Mr Mitchell before the accident as fairly “rough and tumble”, coming in to work occasionally with abrasions on his knuckles or other evidence of pub fights. Mr Rose said that Mr Mitchell had made threats to various staff, and had been counselled to walk away when he got angry.
In relation to the petition against his management style in 1994, Mr Rose told the Tribunal about the failings of various members of his staff.
MEDICAL EVIDENCE
CALVARY HOSPITAL
The Tribunal noted that Mr Mitchell attended at Calvary Hospital on 16 February 1993, the day of the electrocution (T4). A second medical certificate of the Hospital dated 25 February 1993 was at T6. A letter of Calvary Hospital recorded the visits Mr Mitchell made to the Hospital on 16 February 1993 (right hand swollen and pain in right elbow and shoulder), 25 February 1993 (bruising legs and hip), and 11 March 1993. There was no record of headaches.
DR JOHN REEVE – TREATING GENERAL PRACTITIONER
The Applicant also consulted Dr Reeve, his mother’s general practitioner after the electrocution, and a medical certificate of Dr Reeve dated 10 March 1993 was in the documents provided to the Tribunal at T7. Dr Reeve had recorded: “depression post electrical shock”. At T34, there was a letter of Comcare to Dr Reeve and his report dated 29 September 1993 (T35), which followed. Dr Reeve wrote that Mr Mitchell was “cranky, hostile, and angry saying he could not sleep and was very derogatory about his supervisors ...”. He stated that at March 1993, Mr Mitchell had post electric shock depression and superficial bruising, and had since that time been seen many times for a phobia about dealing with electrical appliances.
Further reports of Dr Reeve were at T39, dated 3 November 1993, and T42 dated 6 December 1993. At T39, Dr Reeve wrote to Mr Mitchell’s employers about his physical restrictions at work, adding “[A]im to avoid stressful/conflict situations”. At T42, he emphasised that as Mr Mitchell was enjoying his position at Fyshwick Campus he recommended making the position permanent ... “with no further medical intervention or assessment.” There was no mention of headache.
The Tribunal noted Mr Mitchell’s evidence that he was dissatisfied with Dr Reeve because the doctor had told him various tests were not available to him due to Government funding constraints, and that he then moved to Dr Moulding’s practice (1995), where he was also seen by Dr Langtry who worked in that practice. Drs Moulding and Langtry treated Mr Mitchell with regard to the incident of 1996.
PHYSIOTHERAPIST
Mr Mitchell told the Tribunal that he attended at a physiotherapist, Mr D Bloom, and wore a brace which eased his headaches somewhat but did not cure them.
The Tribunal had before it Exhibit R6, a report of the Weston Creek Physiotherapy Clinic dated 18 June 1993 which gave the date of the initial consultation as 10 May 1993. The Tribunal noted that there was no mention of headaches in that report, although Mr Mitchell said that he had been attending there for many years and suffered continuous headache in the form of sharp shooting pain.
REHABILITATION PROVIDERS
The Tribunal noted Ms Gladman’s memorandum of 6 April 1993 (T12) regarding workplace conflict in relation to Mr Mitchell, and discussing referral to REACT, a rehabilitation provider.
The first report of REACT before the Tribunal was dated 3 May 1993 and referred to the injuries from the electrocution as follows: “ ... suffered severe bruising across lumbar region, pains in chest, back and right arm. He has since suffered symptoms of anxiety and depression which have contributed to conflict within the work environment.”
Ms Gladman wrote at T31, dated 2 September 1993 that she was concerned that liability was accepted for electric shock resulting in depression and anxiety but that Mr Mitchell’s back injury had not been addressed. Ms Gladman wrote again on 2 September 1993 with regard to Mr Mitchell’s problems since the electrocution, including back pain, sleep problems, anxiety and depression, and also said that he had recently advised his doctor that he had been suffering severe headaches and nose bleeds (T31/48).
The Tribunal noted that on 23 April 1996, Moore Options, Risk & Human Resource Management Consultants, (ST14), reported that Mr Mitchell had informed them his 1996 injury had aggravated the symptoms of the electrocution. He had reported having headaches ever since the electric shock, which had diminished over time, and had increased as a result of the fall (1996). They were described as similar to a migraine.
The Tribunal was satisfied from the many reports and follow-up file notes in the documents that rehabilitation was provided, and that after the electrocution incident, Mr Mitchell was redeployed away from Bruce Campus where he would have had to operate electrical appliances, and where he did not want to be. Further follow-up took place after the 1996 incident.
DR W GLASER - PSYCHIATRIST
The report of Dr Glaser dated 4 March 1994 was prepared for a medico-legal psychiatric assessment on behalf of the Respondent, and was before the Tribunal at T51. Dr Glaser reported Mr Mitchell’s account of low back and left leg pain, but stated that: “[H]e does not suffer pains elsewhere.” The Tribunal noted that Dr Glaser did not report any pain in the neck or head.
Dr Glaser reported on Mr Mitchell’s psychological state, noting that he sometimes felt depressed, and cranky, and that he was fearful of operating the concrete mixer, and that he was a non-drinker. He also reported that Mr Mitchell reported no difficulties with concentration.
Dr Glaser diagnosed residual symptoms of mild PTSD. He opined that the electrocution of 1993 made a material contribution to the development of the then (March 1994) current psychological/psychiatric symptoms. Dr Glaser referred to “mild inter-personal problems” prior to the electrocution, but did not appear to have been given a full history.
DR M NATHAR - PSYCHIATRIST
Dr Nathar whose report of 22 June 1995 was before the Tribunal at T68, conducted an examination of Mr Mitchell on behalf of the Respondent for medico-legal purposes. He opined that Mr Mitchell had a phobia related to electrical machinery, that he suffered irritability and moodiness, and sleep disturbance, but that he did not have memory problems. Mr Mitchell appears not to have given Dr Nathar a full history, although Dr Nathar referred to some earlier interpersonal difficulties including self mutilating behaviour.
Dr Nathar opined that Mr Mitchell may have been a person with some rigid, even paranoid trait to his personality, unmasked by the electrocution. He also opined that the Applicant appeared to be suffering a personality change with unresolved anger, and a specific phobia of electrical equipment.
DR R GUPTA - PSYCHIATRIST
The Tribunal noted various reports and correspondence with Dr Gupta, senior consultant psychiatrist with the Health Department, which were before the Tribunal at T10, T11, T14, T15 T26, and Exhibit A2. They were all related to the time frame of the 1993 electrocution incident. In his report at T26, dated 23 June 1993, Dr Gupta opined that Mr Mitchell was suffering symptoms of depression and anxiety. He also opined:
“These symptoms were directly related to the physical and psychological stress he experienced in his work environment. … The electric current incidents on 16.02.93 brings the workplace disharmony to the surface. I do not consider this should leave any permanent damage to Mr Mitchell.”
In his oral evidence, Dr Gupta discussed the workplace stresses Mr Mitchell had described to him. Dr Gupta said he had not been given any history of illness pre 1993, requiring psychiatric treatment by Mr Mitchell. When Dr Gupta was given Mr Mitchell’s history which included attempted suicide and admission to a psychiatric hospital in 1985, and asked whether that changed his views, Dr Gupta said that he formed his views on information received directly from the Applicant. He said that he did not have sufficient information before him to make any further diagnosis at the Tribunal.
DR S MOULDING, DR M E LANGTRY – TREATING GENERAL PRACTITIONERS
Dr Langtry wrote to Comcare on 4 April 1996 (ST13), stating that she had first seen Mr Mitchell on 13 February 1996 as a result of his fall on 28 January 1996, and stated that he was complaining of headaches and dizzy spells, and that she had referred the Applicant to a neuro-surgeon, Dr John Fuller (ST6).
DR R FELTHAM – AGHS MEDICAL OFFICER
Dr Feltham’s report of 30 May 1996 was before the Tribunal at ST27. Dr Feltham wrote that Mr Mitchell had described thumping severe headaches at least two to three times a week which began in the occipital area, then crept forward over the rest of the scalp grabbing “like a vice”.. Dr Feltham recorded that Mr Mitchell told him he suffered similar headaches four to five years ago as a result of the electrocution.
DR GRAEME GEORGE GRIFFITH – SURGEON
Dr Griffith, whose report dated 17 February 1994 was at T50, gave oral evidence. He deals with management of chronic pain and musculo-skeletal pain, and first saw the Applicant in February 1994, a year after the electrocution. He referred in his oral evidence to the Applicant suffering ongoing low back pain which, due to mechanical instability, decreased when Mr Mitchell lay flat. Dr Griffith mentioned in his oral evidence that Mr Mitchell complained of headache at the time of the electrocution.
Dr Griffith commented that Mr Mitchell’s taking of weak analgesics such as Panadol was not an indication his pain was not severe, rather one that some people had a strong pain tolerance, and others were adverse to taking drugs.
Dr Griffith was asked whether headaches, neck, back and arm pain and depression were likely to be the result of the electrocution in February 1993, and whether the Applicant’s grievances contributed to the depressive state Dr Griffith diagnosed in 1994. He answered that such a result was not uncommon regardless of the fact that Mr Mitchell had had a vulnerable youth which included a self mutilation episode and an attempted suicide.
Dr Griffith stated that if Mr Mitchell’s lumbar spine problems resolved, then he would have minimal restrictions on his work, and added that he did not consider the Applicant to be embellishing his presentation or his claims of pain. In his report, Dr Griffith stated:
“I am somewhat at a loss to understand why liability has not been accepted for the back problem. He has no history of back injury prior to this incident, and having regard to the circumstances in which the injury was sustained, the forces involved, and the development of a long lasting bruise in the are (sic) subsequently, it would be reasonable to conclude that there was in fact a definite causal relationship between the incident described and the later development of symptoms in this area.”
When asked about a diagnosis of migraine of the Applicant, Dr Griffith opined that that came from stress and his psychological state rather than from any structural injury of the cervical spine.
When referring to the “marked phobia” Mr Mitchell developed for electrical appliances and machinery after the electrocution, which Dr Griffith thought not unreasonable, Dr Griffith opined:
“He developed a reactionary depression superimposed upon a past history of melancholia and para suicide, again scarcely surprising in the circumstances and along with the physical manifestations enumerated above, in my opinion, quite clearly, due to this incident.”
DR ROGER TUCK – NEUROLOGIST
Dr Tuck, whose report of 5 May 1998 was before the Tribunal as Exhibit R14, and to whom Mr Mitchell had been referred by Dr Moulding, did not give oral evidence. He was given the history of Mr Mitchell having suffered episodic pain in the neck and head since the electrocution. He did not associate the report of headache with migraine or vascular headache. Dr Tuck could not find an explanation for Mr Mitchell’s ongoing severe head and neck pain, and suggested referral to a pain clinic.
DR STEPHEN DAWSON – TREATING CLINICAL PSYCHOLOGIST
Dr Dawson whose reports of 12 May 2000 (T76, Exhibit R1), 18 July 2001 (Exhibit A4), 13 March 2002 (Exhibit A5), 16 October 2001 (Exhibit A6), 8 December 1999 (Exhibit A7), were before the Tribunal, gave oral evidence.
Dr Dawson said that he first saw Mr Mitchell on 27 April 1999, and that he had seen him every two to three weeks since that time, most recently, in the previous two weeks before the Hearing. He reported that Mr Mitchell had been referred to him initially for a series of health problems related to the electrocution, and adjustment problems relating to the death of his partner Jo.
In his first report at T76, Dr Dawson opined that Mr Mitchell suffered neuropsychological impairment as a result of the electrocution, and a worsening of his cognitive symptoms following the 1996 fall. He wrote that: “... Mr Mitchell’s injuries and resulting cognitive disabilities as a result of his employment with CIT have made him more susceptible to other psychological problems.”
Dr Dawson referred in his report at Exhibit A4 to Mr Mitchell’s reports of ongoing pain since the electrocution. Dr Dawson also stated that he agreed with Dr Cassar’s findings. In his report at Exhibit A5, Dr Dawson referred to memory deficits, and suggested the Applicant be issued with a palm computer as a strategy to assist with “severe difficulties with memory and organisation...” .
In a further report of 16 October 2001 (Exhibit A6) Dr Dawwon expressed concerns regarding Mr Mitchell’s appearance before the Tribunal in terms of his memory deficit, and emotional and behavioural self control.
In his report of 8 December 1999 (Exhibit A7), Dr Dawson wrote to Mr Mitchell’s lawyers about the factors contributing to Mr Mitchell’s problems, saying:
“In my opinion the greatest contributing factor towards Mr Mitchell’s disability for work and other activities has been the physical and neuropsychological consequences of his electrocution some time ago rather than the death of his de facto on 9/4/97.”
Dr Dawson told the Tribunal that cognitive problems and problems of memory and concentration became apparent, and that he had recorded that the Applicant suffered intense pain. The pain was to the right side of Mr Mitchell’s head and he had extreme sensitivity to touch which Dr Dawson attributed to the electrocution Mr Mitchell had suffered on 16 February 1993, opining also that the fall in 1996 had exacerbated the Applicant’s problems. Dr Dawson noted also that Mr Mitchell had pain in his right arm and back. He said that he understood Dr Cassar was assisting Mr Mitchell with pain issues.
The Tribunal noted that Dr Dawson is the treating psychologist and first saw Mr Mitchell some six years after the electrocution; further that he had to reconstruct a pre-morbid base line against which he tested the Applicant for problems. Clearly he had to rely on the history given by Mr Mitchell as well as available documentation.
Dr Dawson carriedo out tests, and In his oral evidence, explained the testing in detail, and said that he carried out Wechsler IQ tests on Mr Mitchell. Dr Dawson opined that:
in relation to auditory and attention span testing, Mr Mitchell was within the normal range for brief tasks, but that the Applicant’s ability to sustain attention for complex tasks was impaired;
his memory functioning was within the expected range, that is adequate for simple visual design; but problems were encountered with reproducing designs after half an hour;
on a visual spatial problem solving task, Mr Mitchell appeared to have severe difficulty in judging spatial orientation but on further testing, his final scores were only slightly below average. Dr Dawson reported that it accorded with the Applicant’s report of difficulties he perceived in how objects related to each other since the electrocution, for example when taking apart a car engine component.
Dr Walsh concluded that Mr Mitchell’s personality changes after 1993 were due to pain, and anger at the establishment. He also stated that pain could cause depression, and was aware of Mr Mitchell’s life issues, including the death of Jo.
The Tribunal preferred the results obtained by Drs Walsh and Dawson who opined that Mr Mitchell had cognitive problems, and problems of memory and concentration, Dr Walsh finding that the assessment of the Applicant indicated a pattern of performance which was consistent with brain dysfunction. There is no doubt that the testing was carried out some years after the electrocution, but both Drs Walsh and Dawson attributed Mr Mitchell’s deficits to the effects of the electrocution, which the Tribunal accepted. The Tribunal noted the concern expressed regarding the results obtained by Dr Roldan, and accepted that it was likely Mr Mitchell did not cooperate well when he was examined by Dr Roldan, noting also he had an upset with his partner Alison who fell asleep on Dr Roldan’s floor on that day, and was mindful he had attended without taking medication.
THE NEUROLOGISTS
The Tribunal also considered the opinions of neurologists who examined the Applicant.
Dr Joubert examined the Applicant three months after the 1996 fall, and reported Mr Mitchell told him headaches occurred once every three to four weeks. Dr Joubert described the headaches as post-concussional occipital headaches with migraine features. The Tribunal noted Dr Joubert did not appear to have knowledge of Mr Mitchell’s claim that he suffered headaches constantly since the 1993 electrocution.
Dr Andrews who first examined the Applicant in September 1996 as a result of Mr Mitchell having collapsed without loss of consciousness since the fall in January 1996. He noted that the CT scan conducted on 8 February 1996 and the EEG trace done by him at his first examination both gave normal results. He linked the collapses to Mr Mitchell’s headaches, adding that most migraine was not related to trauma, but emanated from general stress, hereditary and other factors.
Dr Tuck who did not give oral evidence and reported in May 1998, was given a history or Mr Mitchell suffering episodic pain to the neck and head since the electrocution, and opined that he could not find an explanation for that. He suggested referral to a pain clinic.
The Tribunal was mindful that the CT scan and EEG of Mr Mitchell gave normal results. The Tribunal was also mindful of the medical evidence that brain dysfunction does not necessarily show up on CT scans or EEG, and in that regard preferred the evidence of the psychologists who found memory impairment and brain dysfunction.
THE PSYCHIATRISTS
The Tribunal considered the reports of the psychiatrists who examined Mr Mitchell.
Dr Glaser examined Mr Mitchell in March 1994 and mentioned depression and low back pain but did not mention head or neck pain, neither difficulties with concentration, but recorded bad temper and irritability, and PTSD.
Dr Nathar who reported in June 1995 reported on Mr Mitchell’s phobia with electrical machinery but did not find memory problems.
Dr Gupta who reported in the time frame of the 1993 electrocution opined that Mr Mitchell was suffering symptoms of depression and anxiety related to physical and psychological stress in the workplace in the context of the electrocution.
Dr Stern who reported in October 1994, told the Tribunal in his oral evidence that the physical symptoms of Mr Mitchell’s electrocution were damage to the right arm, and headache with low back pain would which continue long term. Dr Stern agreed in reply to questioning that headaches could result from the combination of physical injury and PTSD.
The Tribunal concluded from the reports of the psychiatrists, that Mr Mitchell’s problems with headaches and pain could be linked to his workplace dissatisfactions, his PTSD and injuries, which the Tribunal was mindful arose out of the electrocution incident, and which the Tribunal found continued and were later aggravated by the 1996 incident.
THE APPLICANT’S CAPACITY TO WORK
The Tribunal noted the opinions of the various doctors who examined and treated Mr Mitchell in relation to the 1993 and 1996 incidents, and considered the Applicant’s capacity to work. The evidence in the T-documents indicated that after the electrocution, and Mr Mitchell’s PTSD/phobia regarding electrical equipment, he was given some rehabilitation and a graduated return to work. He was also transferred to Fyshwick Campus and Weston where he was happier than at Bruce. However, the Tribunal accepted the evidence of Mr Mitchell’s colleagues that he was a changed person, his memory was impaired (Mr Rose disagreed), and that he was more aggressive and depressed.
The Tribunal noted Mr Mitchell’s evidence that he was under financial pressure with regard to debts, fines which were due, and a threatened gaol sentence, when he that he took a voluntary redundancy from work in September 1996.
The Tribunal accepted Mr Mitchell had suffered physical and psychological damage as a result of the 1993 and 1996 incidents including cognitive and memory problems, and that his capacity for work was significantly reduced. The Tribunal accepted Mr Mitchell’s evidence that he still suffered severe headaches at least once a month and sensitivity across one side of his face, as well as ongoing low back pain, and that during such episodes he would not be able to work.
The Tribunal noted the evidence of the doctors and psychologists who examined Mr Mitchell as follows:
All three psychologists agreed that Mr Mitchell was not of high IQ.
Dr Dawson indicated that if Mr Mitchell’s pain was under control he could be employed part-time on repetitive duties involving easy to learn tasks. He could not learn complicated tasks or how to operate new machinery with which he had not previously been familiar.
Dr Joubert indicated in 1996 that when Mr Mitchell’s headaches resolved, which could take a long time, Mr Mitchell could carry on with his normal work.
Dr Roldan concluded Mr Mitchell was feigning in his response to testing. He admitted that brain injury may not show up in radiological tests, and agreed that severe headaches and sleep disorder could affect results through distraction and memory problems
Mr Mitchell had been referred to Dr Andrews in 1996 because he had suffered approximately five episodes of collapsing without loss of consciousness. Dr Andrews found his CT scan and EEG normal, considered the collapses not to be linked to epilepsy, and tentatively linked them to the Applicant’s headaches.
Dr Cassar treated Mr Mitchell at his pain clinic and opined that Mr Mitchell was unable to do heavy work, that due to his memory deficit he would be difficult to retrain, and that accordingly he was no longer employable.
Dr Moulding who as his general practitioner has treated the Applicant more times than any other doctor, did not consider Mr Mitchell could work or be retrained for work within the next two years.
The Tribunal concluded from the medical evidence and evidence of Mr Mitchell that he continues to suffer disabling headaches and other medical and psychological problems. Accordingly, taking into account his evidence, and that of the above mentioned medical reports, the Tribunal concluded that the Applicant was incapacitated for work pursuant to section 14 of the Act as a result of the electrocution suffered at work in 1993 and the fall Mr Mitchell suffered in 1996.
DECISION
A2000/404 The Tribunal sets aside the decision of Comcare made in matter A2000/404 in regard to incapacity, and in substitution therefor, finds that the Applicant, Mr Thomas Ernest Mitchell continued to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, and as a result of the incident of 16 February 1993 (electrocution), after cessation of liability by the Respondent.
The Tribunal affirms that part of the decision in matter A2000/404 which deals with the issue of permanent impairment which was not litigated before it.
A2001/294 The Tribunal sets aside the decision in matter A2001/294, and in substitution finds that the Applicant, Mr Thomas Ernest Mitchell continues to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 after cessation of liability by Comcare, and as a result of the accident incurred at work on 24 January 1996 (fall).
Costs are be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and in accordance with the Tribunal’s Practice Direction.
I certify that the 277 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr M Miller AO, Member.
Signed: .......................................................................................
Associate
Dates of Hearing 25 – 29 November 2002
Date of Decision 18 June 2003
Solicitor for the Applicant Capital Lawyers
Counsel for the Applicant Mr A Anforth
Counsel for the Respondent Mr J O’Donovan
Solicitor for the Respondent Australian Government Solicitor
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