Morton and Australian Postal Corporation
[2001] AATA 514
•12 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 514
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/995
GENERAL ADMINISTRATIVE DIVISION )
Re Lee Steven Morton
Applicant
And Australian Postal Corporation
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date12 June 2001
PlaceSydney
Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), and in substitution therefor the Tribunal decides: 1. Mr Morton has suffered an Adjustment Disorder with Mixed Emotions of Depression and Anger arising out of a work injury on 8 June 1999; 2. Mr Morton is entitled to the payment of reasonable medical expenses for his Adjustment Disorder from 24 March 2000 until and including 31 December 2000; 3. The matter is remitted to the Respondent for assessment and payment of compensation in accordance with this determination.
....................[sgnd]....................
Ms SM Bullock
Senior Member
Catchwords
COMPENSATION - Back Injury - Adjustment Disorder - Medical Treatment Expenses
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16
Authorities
Re Australian Telecommunications Corporation and Davis (1990) 30 FCR 467
REASONS FOR DECISION
12 June 2001 Ms SM Bullock, Senior Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Mr Lee Steven Morton of a reviewable decision made by the Respondent, the Australian Postal Corporation on 12 May 2000 (T41), which affirmed a decision of a delegate of the Australian Postal Corporation on 6 March 2000, that Australia Post was not liable to pay compensation for Mr Morton's depressive condition (T39).
A hearing was held in Sydney on 14 March 2001. Mr Morton was represented by Mr D Toomey of Counsel. Mr Morton provided oral evidence to the Tribunal. The Respondent was represented by Mr B Skinner of Counsel. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T Documents", T1-T54) and the following exhibits:
Exhibit Number Description Date
T1 – T54 Section 37 Statement and Documents. Various
A1 Report of Dr D Butler, Consultant Psychiatrist 27 June 2000
R1 Report of Dr J R Champion, Psychiatrist 21 September 2000
IssuesThe issues in this matter were narrowed at hearing to:
(a)Whether Mr Morton is suffering from a psychiatric condition and if so, what is the correct diagnosis of this condition;
(b)Does any psychiatric condition suffered by Mr Morton arise out of his work injury on 8 June 1999; and if so
(c)Is Mr Morton entitled to medical expenses pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Legislation
A decision in this matter requires consideration of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act").
Specifically, section 14 of the Act deals with compensation for injuries and states:
"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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."
Section 16 of the Act deals with compensation in respect of medical expenses and as relevant states:
"Compensation in respect of medical expenses etc.
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.
(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.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation—to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c)in respect of the journey—of an amount worked out using the formula:
specified rate per kilometre x number of kilometres travelled
where:
"specified rate per kilometre" means such rate per kilometre as the Minister specifies by notice under this subsection in respect of journeys to which this subsection applies;
"numbers of kilometres travelled" means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey);(d) in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services—the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.
…"
Background
The information contained in this section is provided by way of background and the facts contained within are not disputed.
Mr Morton has been employed by Australia Post since June 1996, as a permanent employee on a full-time basis.
Mr Morton has been married for eight years and has no children.
On 8 June 1999, in the course of Mr Morton performing his duties as a Senior Postal Delivery Officer, Grade 2, at Lindfield Delivery Centre, Mr Morton had a motorcycle accident while delivering mail. Mr Morton suffered injuries to his lower back and legs (T9).
On 15 June 1999, Mr Morton completed a "Claim for Rehabilitation and Compensation" (T10) and on 24 June 1999, liability was accepted under section 14 of the Act in relation to "jarred sacro spinalis muscles (back)" (T13).
Mr Morton was absent from work for approximately five weeks, returning to work on restricted duties at Long Jetty Delivery Centre on 14 July 1999.
As the Tribunal understands the history of this matter, Mr Morton initially returned to full-time hours, but his work was restricted to mail sorting on a night shift from 4.30am to 11.00am. This continued for approximately 12 months. During that period, Mr Morton was performing "fit for work" exercises each day.
On 6 January 2000, the Respondent approved payment for five adjustment counselling sessions with Clinical Psychologist, Mr P Kennedy, to assist Mr Morton with his return to work program (T33).
On 31 January 2000, Dr L Pierides, a Specialist in Occupational Medicine, reported and diagnosed Mr Morton as having a condition of "chronic ilio-lumbar ligament strain which is gradually resolving" (T37, p149). Dr Pierides opined that if Mr Morton was doing postal sorting duties, he could do his normal weekly hours inclusive of overtime. Dr Pierides suggested that Mr Morton should increase his antidepressant medication to one and half tablets and also that he needed further treatment for his depression, suggesting that if he were to have counselling though Australia Post, it should be directed towards depression rather than pain management (T37, p150).
On 17 February 2000, Mr Morton's General Practitioner, Dr J B Belfer, reported that Mr Morton's "…depression may be related to the prolonged pain and disability of his injury at work" (T38, p153).
Also on 17 February 2000, Mr Morton submitted a claim for depression, which he stated his doctor had treated him for. Mr Morton noted in the claim that he believed that this depression could be related to his back injury, as he had never had any problem like this previously (T38, p152).
On 6 March 2000, a Delegate of Australia Post decided that he was not satisfied that liability should be extended to cover the condition of depression within Mr Morton's currently accepted claim under section 14 of the Act (T39).
On 29 March 2000, Mr Morton sought a reconsideration of the Delegate's decision (T40).
On 12 May 2000, a Reconsideration Officer affirmed the Delegate's original decision that Australia Post was not liable to pay compensation in relation to Mr Morton's depressive condition (T41).
Dr Belfer referred Mr Morton to Consultant Psychiatrist, Dr D Butler, who first examined Mr Morton on 28 March 2000 (Exhibit A1). Mr Morton consulted Dr Butler every few weeks and Dr Butler last saw Mr Morton in November or December 2000.
On 10 May 2000, Mr Morton made an application for review to the Tribunal (T1).
Since June 2000, Mr Morton had worked at the Gosford Delivery Centre where he started with a few hours of mail delivery with the balance of time sorting mail but progressively, mail delivery work increased.
At the time of hearing, Mr Morton was located at the Hornsby Delivery Centre.
Evidence of Mr Morton
Mr Morton explained to the Tribunal that after returning to work following his injury and move to the Long Jetty Delivery Centre, he experienced "emotional problems". Mr Morton began to have sleep difficulties, became irritable with his wife and described his relationship with his wife as "terrible". This situation had been ongoing for about a year. Mr Morton informed the Tribunal that he and Mrs Morton do not really speak to each other but only "snap and yell" at each other. Mr Morton told the Tribunal that he "just did not feel right" and this has been so since his work accident. Socially, Mr Morton does not want to go out, having previously been quite social, meeting friends and going out to dinner. Further, Mr Morton described not feeling like working around his home but just sitting around and that it was an effort to do anything, much less mow the lawn. He explained that he has lost interest in all the things from which he used to gain enjoyment. Mr Morton told the Tribunal that he started to feel sorry for himself, which was behaviour not characteristic of him. Mr Morton told the Tribunal that he last went out to dinner with his wife in January 2001. He would occasionally go shopping with his wife but would not go to the movies. Nor was Mr Morton able to take long drives which he had previously greatly enjoyed. This was because of the back pain he experienced.
By November 1999, Mr Morton was so concerned about the way he was feeling that he consulted General Practitioner, Dr Belfer. Dr Belfer initially prescribed the antidepressant medication Aropax, but this medication did not seem to assist him. He was next prescribed Efexor XR, 75mg per day. Mr Morton also noted that he began drinking far too much alcohol, having previously not been a heavy drinker. Usually, Mr Morton would drink about "six beers" on Saturday but in recent times, he had increased to about 12 to 18 drinks of beer on the weekend. He was purchasing a carton of beer, which was consumed over the weekend.
Mr Morton stated that the back pain he experienced made him feel terrible. He used to be "a very sporty person", including having been in the local First Grade Rugby League team. He had also been a referee and used to play touch-football. Mr Morton also used to run once a week but could no longer do this, again because of his pain. Mr Morton told the Tribunal that he also used to play golf and three or four months prior to the hearing, he had tried to play golf again but found that because of his back pain, he was restricted in his ability to swing the golf club.
Dr Belfer referred Mr Morton to consultant Psychiatrist, Dr D Butler, who Mr Morton first consulted on 28 March 2000. Dr Butler continued to prescribe the medication Efexor but increased the dose to Efexor XR, 225mg per day. Mr Morton had paid for these psychiatric consultations himself because on 6 March 2000, Australia Post had refused medical expenses for this treatment. Mr Morton told the Tribunal that he had not told Dr Butler about his claim for compensation for depression. He had, however, told Dr Belfer, Dr Thrift, Consultant Physician (Rheumatology), and Dr Harris, another General Practitioner, that he was in receipt of workers' compensation for his back injury.
Mr Morton's initial consultation with Dr Butler lasted one hour and thereafter, he continued to consult Dr Butler approximately every month for half an hour until his last appointment, which he thought was in November or December 2000. Mr Morton noted that he found it very good and a great relief to speak to Dr Butler about how he was feeling. Mr Morton stated that because he found it difficult to talk about his feelings to his wife and friends, the good relationship he had with Dr Butler allowed him to express many feelings. Mr Morton explained to the Tribunal that as it was easy to speak to Dr Butler, his consultations with him assisted in his improvement. Mr Morton stated that he would have liked to continue to consult Dr Butler beyond November or December 2000, but he could not afford it.
At the time Mr Morton had his medico-legal consultation with psychiatrist, Dr J R Champion, he was working at the Gosford Delivery Centre. Mr Morton believed that he had told Dr Champion everything he had told Dr Butler. Mr Morton informed the Tribunal that by the time he saw Dr Champion, his condition had improved in terms of his emotional health, but he noted that his condition fluctuated up and down. In this regard, Mr Morton stated that he had good days and bad days, "ups and downs". On the day he was examined by Dr Champion he confirmed that he felt quite well.
Mr Morton has also consulted Dr E Thrift, Consultant Physician (Rheumatology), who first reported on Mr Morton on 12 September 1999 (T24). Mr Morton continues to see Dr Thrift, who administers injections to his lower back containing Marcain and Celestone. The injections provide relief for approximately two days and longer, up to four or five days, if the injection is administered using X-ray to locate the precise point of injection.
Currently, Mr Morton works either 5.15am to 3.00pm or 6.00am to 3.00pm, undertaking full duties. Mr Morton stated that he likes working and likes working as a Postal Delivery Officer. Mr Morton also told the Tribunal that he in fact needs to work. Mr Morton informed the Tribunal that he does not believe that his mental health condition impinges upon the performance of his work.
At hearing, Mr Morton described feeling pain in his left hip and spine. Mr Morton described his current situation as still having sleep difficulties, sleeping approximately four hours per night. It is not his back pain which wakes him up, Mr Morton stated, but he wakes up for some other reason. He worries a great deal about his back and his continuing ability to work and generally feels depressed.
Since Mr Morton last consulted with Dr Butler, he has continued to see his General Practitioner, Dr Belfer, once per month in relation to his back pain. Mr Morton told the Tribunal that Dr Belfer knows of his sleep difficulties, but Mr Morton has not recently spoken to him about this problem. Further, Mr Morton did not speak to Dr Belfer about emotional health issues, only talking to him about his back pain.
Mr Morton noted that through his work, he has been sent for counselling three or four times. This occurred when he was working at the Long Jetty Postal Delivery Centre and Mr Morton found that this counselling did assist him.
Mr Morton has been told that he would eventually be returning to work at the Lindfield Delivery Office. Mr Morton is worried about the impact on his back of travelling on the train from his Central Coast home down to Lindfield, a trip which he stated can take up to two hours. Mr Morton believes that Dr Thrift had recommended that he should be found work closer to his home and this certainly accords with Mr Morton's own views about this issue.
Medical evidence
Dr D Butler, Consultant PsychiatristDr Butler prepared a report in relation to Mr Morton on 27 June 2000. He noted that he had initially seen Mr Morton on 28 March 2000 at the request of Dr Belfer. Dr Butler continued to see Mr Morton every few weeks, most recently, at the time of his report, on 21 June 2000 (Exhibit A1).
Dr Butler noted that Mr Morton had reported that he had been sleeping poorly for several months, only having four hours sleep per night. Mr Morton also reported a poor appetite and that he had increased his alcohol consumption to about 12 to 18 drinks of beer per weekend. Mr Morton reported further to Dr Butler that he often felt irritable, depressed and worried about the future impact of his back condition on his continuing to work as a postman. Dr Butler reported that Mr Morton was unable to undertake his usual activities, such as playing golf, going for a run or undertaking long drives. Mr Morton was described as lethargic and having lost interest in previously enjoyed activities, such as watching football on television or playing touch-football.
In the initial consultation, Dr Butler observed that Mr Morton was "quite depressed and irritable in his mood". Dr Butler diagnosed Mr Morton as suffering from a chronic Adjustment Disorder with Mixed Emotions of Depression and Anger, which was substantially caused by Mr Morton's employment, in particular the accident at work on 8 June 1999, in which Mr Morton injured his back.
Dr Butler continued to see Mr Morton every few weeks for supportive psychotherapy and review his progress on antidepressant medication. The dose of Efexor XR was gradually increased to 225mg per day.
Dr Butler noted that Mr Morton still had recurring feelings of depression and anger, but on his return to work as a mail sorter he had, Dr Butler observed, coped very well. Dr Butler noted the fluctuation in Mr Morton's condition, having good days and bad days. Mr Morton was worse when his hip and back pain worsened. In relation to Mr Morton's prognosis, Dr Butler concluded:
"…I think that the prognosis for the Adjustment Disorder depends on what happens with his back. I think that he should make a gradual recovery over the next six months or so but there may be relapses when his back pain is aggravated. I think that during this next six months he will continue to need sessions of supportive psychotherapy and antidepressant medication. In my opinion the chronic Adjustment Disorder has not actually caused any incapacity for work, because he has been able to continue working quite well both as a Mail Sorter and as a Postman, despite his feelings of anger and depression. I think it is unlikely that it will cause any incapacity for work in the future. However, I think that the Disorder does cause incapacity to enjoy normal things in his life such as various sporting activities and going for trips in his car. I would not put any restrictions on his ability to perform his pre injury duties." (Exhibit A1, p3).
Dr J R Champion, Psychiatrist
Dr Champion provided a report to Australia Post dated 21 September 2000, following his examination of Mr Morton on 7 September 2000 (Exhibit R1).
In relation to Mr Morton's back injury arising out of an accident in June 1999, Mr Morton reported to Dr Champion that his back condition had been improving over time. Dr Champion described Mr Morton's progression back to work, from commencing a return to work program in July 1999 and commencing with mail sorting on the night shift at the Long Jetty Delivery Centre for 12 months. By June 2000, Mr Morton had returned to mail delivery for a few hours each day, with the balance of his time spent sorting mail. Dr Champion noted that Mr Morton gradually increased his mail delivery period as his back progressed. Dr Champion noted that Mr Morton was unhappy because of the possibility he could be returned to the Lindfield Delivery Centre, where he was working at the time of his work accident. Dr Champion noted Mr Morton's concern about the long journey and the implication that travelling on a train would increase his back pain. Mr Morton told Dr Champion that working at Long Jetty was part of his return to work program, which also has as an aim to provide him work closer to his home.
Dr Champion noted Mr Morton's increase in alcohol consumption after the work accident and his increased consumption of beer, particularly on the weekend with 3 to four beers each night. Dr Champion noted that Mr Morton suffers from diabetes, diagnosed some years ago.
Dr Champion further noted that Mr Morton's presentation was indicative of "some pain behaviour but this was not marked" (Exhibit R1). Dr Champion also reported that Mr Morton had told him that his irritability and mood had been worse when he was on night shift, but had improved when he no longer had to work at night.
Dr Champion opined that the accident described was "likely to have produced a muscle strain or soft tissue injury". Such injuries, Dr Champion noted, cause much stress initially but tend to resolve with rest and conservative management. Dr Champion concluded that Mr Morton's current work-related unhappiness arose mainly out of his resistance to travelling to Sydney for work, rather than working close to home. Dr Champion did not find any "current significant levels of Depression, Anxiety or any other psychiatric disorder". Dr Champion further opined that given the history provided by Mr Morton:
"Mr Morton seems to have suffered with an Adjustment Disorder with Anxiety and Depression during the latter part of 1999 related to an acute injury to his back. On the basis of his presentation at the examination and the history he offered to me I concluded that any Adjustment Disorder had resolved prior to my examination of him." (Exhibit R1, pp 5-6)
Further, Dr Champion reported that Mr Morton did not at the time of his examination, suffer from any mental condition impeding the resumption of his pre-injury duties. From the psychiatric point of view, Dr Champion concluded that Mr Morton did not have any current incapacity to work.
Mr Morton's anger at the possibility of being transferred back to Lindfield, Dr Champion opined, relates to Mr Morton's personality structure and desire to have a convenient workplace rather than to injury he received in the workplace in 1999.
Dr Champion concluded that there was no reason in Mr Morton's case to conclude that a psychiatric disorder had arisen on the basis of the injury, which now did not prevent him from working in his former position in Sydney or travelling to Hornsby.
SubmissionsAt hearing, Mr Toomey narrowed the issues which, in the Applicant's submission, needed to be decided by the Tribunal. Mr Toomey submitted that the sole issue is whether treatment which Mr Morton sought and paid for himself from Consultant Psychiatrist, Dr Butler, was reasonable and whether the psychiatric condition he had was causally related to the motor bike injury he suffered in June 1999. In relation to the causal connection, Mr Toomey referred to the opinions contained in the reports of Psychiatrists, Dr Butler and Dr Champion, where it was accepted by those doctors that there is a causal relationship between Mr Morton's work injury and his Adjustment Disorder. Mr Toomey noted that Dr Champion stated:
"Mr Morton seems to have suffered with an Adjustment Disorder with Anxiety and Depression during the latter part of 1999 related to an acute injury to his back." (Exhibit R1).
Mr Toomey put to the Tribunal that Dr Champion was, despite his language, clearly indicating that there was a line of causation between the injury and Mr Morton's psychiatric condition. Further evidence of a causal connection was also indicated at T7, page 58, in which Dr Belfer noted in a WorkCover report, the diagnosis of:
"1/ Jarred sacrospinalis muscles, back.
2/Chronic Adjustment Disorder with depression as reaction to back injury at work." (T7, p58)
Mr Morton's evidence to the Tribunal was quite clear in that he had written to Australia Post on 17 February 2000 (T38), noting his feelings of depression.
Mr Toomey contended that the Tribunal should consider carefully Mr Morton's presentation at hearing. There was absolutely no evidence of exaggeration in Mr Morton's evidence, Mr Toomey submitted, and further, Mr Morton never sought to overstate his symptoms. Mr Toomey recommended that the Tribunal note that Mr Morton is a man who has made every effort to return to work and further, it was Mr Morton's clear evidence that treatment was appropriate for his condition.
Mr Toomey submitted that Mr Morton's unchallenged evidence was that his condition "waxes and wanes". When Mr Morton saw Dr Champion, he truthfully acknowledged that he was feeling better because he had been seeing Dr Butler. The difficulty for Mr Morton is that because he could no longer afford treatment, he had to cease his consultations with Dr Butler. Dr Butler had also noted that Mr Morton had good and bad days, depending on his back pain. Mr Toomey suggested that there can be no question that Mr Morton had manufactured evidence for the Tribunal.
Considering Dr Butler's report, Mr Toomey submitted that the advantage in Dr Butler's report is that he had been the treating doctor and had seen Mr Morton over a period of some eight or nine months. In such circumstances, Dr Butler had had the opportunity to assess Mr Morton on each of those occasions and to listen to what he had to say about his problems. It is on the basis of those assessments, between March and late June 2000, when Dr Butler wrote his report, that Dr Butler was clearly satisfied that the problems Mr Morton were suffering were caused by his work injury and the consequences of that injury.
Mr Toomey noted Mr Morton's evidence that his back injury caused him to cease a number of previously enjoyed activities. Mr Toomey put to the Tribunal that it should consider how such losses impacted on Mr Morton, particularly since he had previously been active, involved in sport and he had faced a loss of stock social structures and contact.
The diagnosis of an Adjustment Disorder by both Dr Champion and Dr Butler could not be questioned. This diagnosis is in accordance with the diagnostic criteria contained within DSM IV. The clear symptoms of this condition have been described by doctors treating or assessing Mr Morton, including symptoms of lack of motivation, irritability, poor sleep patterns, lack of interest in most things, not wanting to socialise either with his friends or his wife and no longer wishing to watch the football.
In reference to Dr Champion's suggestion that his opinion may be deficient and that he had not had the opportunity of reviewing any of Mr Morton's reports from treating or independent specialists concerning his physical condition, it was quite clear, Mr Toomey submitted, that Mr Morton was still consulting Dr Thrift, Rheumatologist, because of his continuing back problems and also his General Practitioner approximately once per month. Mr Toomey noted that it was never put to Mr Morton that he does not continue to have pain in his back and indeed, Mr Morton's evidence was that the pain in his back prevented a number of activities such as playing golf and playing "Oztag". Therefore, Mr Toomey submitted that Mr Morton's case must be approached on the evidence that Mr Morton continues to have problems with his back. Accordingly, Dr Champion's opinion is somewhat undermined by his assumption that Mr Morton's back problems had resolved sometime well before he examined Mr Morton, Mr Toomey contended.
In relation to Dr Champion's further comments about individuals being reluctant to forego the benefits of the sick role, Mr Toomey submitted that there were no benefits to maintain in Mr Morton's case. Mr Morton is continuing to work and there is no claim for weekly payments of compensation and nor has there been any claim made by Mr Morton for any lump sum pursuant to sections 24 and 27 of the Act, on the basis of a depressive illness. Mr Toomey reiterated his earlier submission that Mr Morton was not someone who presents as a person who is making his circumstances up for the benefit of compensation. Mr Morton is merely seeking that treatment for psychiatric care, which he has already paid, should be reimbursed to him.
Mr Toomey referred the Tribunal to Mr Morton's demeanour in providing evidence when he was manifestly upset and almost tearful. In such circumstances, Mr Toomey submitted that no finding should be made that the effects of Mr Morton's Adjustment Disorder had ceased. There is clear evidence that Mr Morton continues to suffer from the effects of some sort of depressive or Adjustment Disorder condition. Mr Toomey concluded therefore that it would be premature, in his submission, to make any finding of there being no ongoing need for psychiatric or psychological treatment. Mr Toomey wished the Tribunal to understand that in recent times, Dr Belfer had suggested that Mr Morton return to see Dr Butler. Mr Morton had not taken up this advice as he simply could not afford the cost of the consultations. Thus, it was a financial consideration, rather than an issue of Mr Morton not having any ongoing psychiatric condition, which prevented his continuing consultation with Dr Butler.
Mr Skinner, for the Respondent, directed the Tribunal to the Applicant's Statement of Issues, with one of the issues being whether or not the Applicant was entitled to payment of ongoing medical expenses in relation to psychiatric injuries. Further, in the Applicant's Statement of Facts and Contentions, dated 4 December 2000, there were three contentions, the second of which related to the Applicant's contending that he should receive ongoing medical expenses for his psychiatric injury. Mr Skinner submitted that the reason Mr Toomey was not pursuing either of those issues was because the medical evidence before the Tribunal categorically disallowed any claim for continuing or ongoing medical expenses for Mr Morton and further, it was abundantly clear that Dr Butler in his report stated that in his opinion, Mr Morton should make a gradual recovery over the next six months. This period would then bring Mr Morton to the end of the year 2000. Further, Dr Butler concluded that it was unlikely that the condition he had diagnosed as Adjustment Disorder would cause any incapacity for work in the future.
When Dr Champion examined Mr Morton in September 2000, he expressed the opinion that any Adjustment Disorder present had resolved prior to his examination of Mr Morton. Mr Skinner submitted that when the two psychiatric reports were read together, their conclusions indicate that there was nothing to support ongoing treatment or paying of ongoing medical expenses. Mr Skinner submitted that if the Applicant was to succeed, it should only be on the basis that he be paid for those sessions which he had with Dr Butler. Mr Skinner expressed surprise that there had been no attempt to update Dr Butler's opinion since his one and only report of 7 June 2000. Mr Skinner contended that there should be a clear finding there that there is no ongoing liability for Australia Post to pay medical expenses in respect of psychiatric injuries, beyond the closed period of Mr Morton's past psychiatric treatment. A contrary finding would not be supported by any medical material which the Applicant had put before the Tribunal, Mr Skinner submitted. If Mr Morton had serious need for ongoing medical expenses or treatment, Mr Skinner submitted that it would be expected that he would have received such reports from either his psychiatrist or his general practitioner. There was simply nothing put before the Tribunal in the form of any medical opinion that there was a need for ongoing treatment.
While the Respondent's preferred submission was that there was no need for any further treatment from September 2000 onwards, if the Tribunal did not agree, then the absolute maximum of treatment expenses should be, based on Dr Butler's opinion, from June 1999 to the end of the year 2000.
While Mr Skinner's initial submission related to an assumption that there was a psychiatric condition in the form of an Adjustment Disorder, Mr Skinner noted that it needed to be determined whether in fact there was a true psychiatric condition or illness which was compensable. Obviously, it was a matter for the Tribunal to make a finding as to whether or not there was a psychiatric condition suffered by Mr Morton, Mr Skinner acknowledged. However, Mr Skinner submitted that the Respondent had some difficulty understanding what the manifestations of this psychiatric condition were, noting such symptoms as an inability to play golf or "Oztag" and being unable to drive for long periods. None of those activities, as Mr Skinner understood it, constituted a psychiatric problem. Further the evidence of Mr Morton being irritable with his wife and having trouble sleeping, needed to be determined as to whether or not they could be considered symptomatic of a psychiatric condition. Mr Morton was apparently not receiving any treatment for his sleeping problems, Mr Skinner noted. Mr Skinner concluded that the Tribunal should affirm the decision under review.
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation, the case law and submissions.
The Tribunal found Mr Morton to be a credible witness who provided unembellished and truthful evidence.
The Tribunal firstly deals with the issue of whether or not Mr Morton has a psychiatric condition and if so, what is the correct diagnosis of this condition.
Mr Morton himself has provided evidence that following his work accident in June 1999, he felt depressed and irritable with a loss of interest in most things including social activities, loss of motivation, poor sleep problems and increased alcohol consumption. Certainly at hearing, Mr Morton was seen to become labile. Mr Morton reported these symptoms and of "not feeling himself" to Dr Belfer in late 1999 and certainly was receiving antidepressant medication by 17 February 2000, when Dr Belfer wrote a short letter advising of Mr Morton's depressed condition. Dr Belfer felt sufficiently concerned about Mr Morton's mental health to in fact refer him to Consultant Psychiatrist, Dr Butler. Dr Butler then saw Mr Morton on what appears to be a monthly basis, treating with medication and psychotherapeutic counselling, until at least November or December 2000. Dr Butler diagnosed Mr Morton as suffering from a chronic Adjustment Disorder with Mixed Emotions of Depression and Anger. Dr Champion also opined that Mr Morton "seems" to have suffered a condition of Adjustment Disorder with Anxiety and Depression. The Tribunal is not completely sure of what lies behind Dr Champion's use of the word "seems" in relation to Mr Morton's perhaps having an Adjustment Disorder. It is possible that Dr Champion's concerns about Mr Morton's exaggerating lie behind the use of his language, but the Tribunal has not concluded that Mr Morton exaggerated his situation in any way and has determined Mr Morton to be very genuine. Further, the Tribunal does not consider it likely that Mr Morton would have obtained and continued treatment for which he paid himself, if he was not genuinely in need of treatment. Dr Belfer, Mr Morton's General Practitioner, who has known Mr Morton for some time, felt significantly concerned about Mr Morton's health to refer him for psychiatric opinion and treatment.
The objective medical evidence is that following a work injury to his back on 8 June 1999, Mr Morton suffered from a psychiatric condition termed Adjustment Disorder which is recognised under DSM IV and which is covered by ICD Codes 309.0, 309.24, 309.28, 309.3, 309.4 and 309.9, the coding selected according to the predominant symptoms. The diagnostic criteria for Adjustment Disorders contained within DSM IV are:
"Diagnostic criteria for Adjustment Disorders
A.The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B.These symptoms or behaviours are clinically significant as evidenced by either of the following:
(1)marked distress that is in excess of what would be expected from exposure to the stressor
(2)significant impairment in social or occupational (academic) functioning
C.The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a preexisting Axis I or Axis II disorder.
D.The symptoms do not represent Bereavement.
E.Once the stressor (or its consequences) has terminated, the symptoms do not persist for more that an additional 6 months.
Specify if
Acute:if the disturbance lasts less than 6 months
Chronic: if the disturbance lasts for 6 months or longer
Adjustment Disorders are coded based on the subtype, which is selected according to the predominant symptoms. The specific stressor(s) can be specified on Axis IV.
309.0 With Depressed Mood
309.24 With Anxiety
309.28 With Mixed Anxiety and Depressed Mood
309.3 With Disturbance of Conduct
309.4 With Mixed Disturbance of Emotions and Conduct
309.9 Unspecified"
It is Mr Toomey's submission that Mr Morton's Adjustment Disorder arose out of his work injury on 8 June 1999. It is the pain associated with the work injury which, Mr Toomey submitted, has caused Mr Morton's Adjustment Disorder with symptoms including irritability, lack of motivation, withdrawal from social activity, poor sleep and increase in alcohol consumption. The evidence concerning these symptoms has not been challenged and it is the Tribunal's finding that they sit squarely with the diagnostic criteria for Adjustment Disorder as contained in DSM IV.
As Mr Morton's treating Psychiatrist, Dr Butler concluded that Mr Morton's Adjustment Disorder was substantially caused by his employment, particularly the accident at work on 8 June 1999 when he injured his back. Dr Butler further opined that while Mr Morton's condition fluctuated from good to bad, depending on the level of his pain, there had been some improvement in the condition but it was not substantial. It was Dr Butler's further opinion that Mr Morton's prognosis depended on the outcome of his back condition. Dr Butler's conclusion in June 2000, was that Mr Morton would make a good recovery over the next six months, which would have taken him to December 2000. Further, Dr Butler found there was no incapacity caused by the Adjustment Disorder because Mr Morton had been able to continue work. This opinion was also supported by Mr Morton's evidence to the Tribunal. Further, Dr Butler opined that it was unlikely that an Adjustment Disorder would cause any future incapacity for work.
Dr Champion concluded that at the time he interviewed Mr Morton in September 2000, Mr Morton's Adjustment Disorder had resolved. Mr Morton's evidence at hearing, as confirmed in Dr Butler's report, was that Mr Morton had good and bad days in terms of his emotions and that this was linked to whether or not he was having a bad day with his back. While Dr Champion's opinion was that the Adjustment Disorder related to the acute injury of his back, he considered that this had resolved and that any anxiety Mr Morton was experiencing at the time of his interview in September 2000, related to Mr Morton's frustration and anger at his possible relocation back to the Lindfield Delivery Centre, where he was working pre-injury.
The Tribunal finds that, based on Mr Morton's evidence and the expert opinions of Dr Butler and Dr Champion, Mr Morton has suffered an Adjustment Disorder with Mixed Emotions of Depression and Anger arising out of a motor bike accident while working on 8 June 1999. Liability has already been accepted for the back injury arising out of this motor bike accident.
In relation to ongoing incapacity, the Tribunal does not consider, based on Mr Morton's evidence and the opinion of Dr Butler, that the Adjustment Disorder has caused any incapacity for work.
In all these circumstances, the Tribunal determines therefore that Mr Morton is entitled to medical expenses, pursuant to section 16 of the Act, for any reasonable medical expenses arising out of psychiatric treatment for the period 24 March 2000 to 31 December 2000.
There have been no further reports provided by Dr Butler, Dr Belfer or any other medical opinion indicating ongoing psychiatric problems or the need for ongoing treatment, apart from Dr Butler noting that there may be a relapse in the Adjustment Disorder if back pain is aggravated. While the Tribunal notes Re Australian Telecommunications Corporation and Davis (1990) 30 FCR 467 considered that findings could be made in relation to future entitlement for medical expenses, the Tribunal does not consider it has sufficient evidence to allow other than a finding that reasonable medical expenses be paid for Mr Morton's psychiatric treatment for his Adjustment Disorder within the closed period of 24 March 2000 until 31 December 2000.
Accordingly, for all the reasons set out above, the Tribunal sets aside the decision under review and substitutes its decision that:
Mr Morton has suffered an Adjustment Disorder with Mixed Emotions of Depression and Anger arising out of a work injury on 8 June 1999;
Mr Morton is entitled to the payment of reasonable medical expenses for his Adjustment Disorder from 24 March 2000 until and including 31 December 2000;
The matter is remitted to the Respondent for assessment and payment of compensation in accordance with this determination.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: ...........[sgnd]...................................................................
AssociateDate of Hearing 14 March 2001
Date of Decision 12 June 2001
Counsel for the Applicant Mr D Toomey
Solicitor for the Applicant Mr J Coyle of McClellands Solicitors
Counsel for the Respondent Mr B Skinner
Solicitor for the Respondent Mr J D Jones of Graham Jones, Lawyers
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