Morton and Comcare
[2008] AATA 686
•6 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 686
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2823
DIVISION ) Re MICHAEL MORTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member
Date 6 August 2008
Place Canberra
Decision 1. The reviewable decision made by Comcare on 7 May 2007 is set aside.
2. In substitution for the decision set aside it is decided that:
1) Comcare is liable to pay to Mr Morton compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury being an aggravation of a Bipolar Disorder giving rise to anxiety and depression;
2) pursuant to section 7(4) of the Act Mr Morton shall be taken to have suffered the injury on 15 November 1995;
3) Mr Morton continued to suffer the effects of the injury until the commencement of October 1996;
4) Mr Morton has not suffered from any effects of the injury from the commencement of October 1996 until the date of this decision.
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Morton.
.................[signed]..................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – whether ‘injury’ within meaning of the Act – whether contributed to in a ‘material degree’ by employment – whether Act precluded from applying by section 53 – decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7. 53
REASONS FOR DECISION
INTRODUCTION
3. Mr Morton is seeking a review of a decision of Comcare denying liability to compensate him in respect of an injury he claims to have suffered over a period in 1995 and 1996 whilst employed by the Department of Defence. He claims that the effects of the injury are continuing.
4. For the reasons which follow we have decided that Comcare’s decision should be set aside.
ISSUES
5. There are two issues for determination:
1)has Mr Morton suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
2)if so, does section 53 of the Act exclude the Act from applying to the injury?
DETERMINATION OF THE ISSUES
6. Unless stated otherwise findings of fact made in determining the issues are based on the evidence of Mr Morton. We are satisfied of the facts found on the balance of probabilities.
Has Mr Morton suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988?
7. Mr Morton joined the Defence Signals Directorate of the Department of Defence in 1993 as a Senior Information Technology Officer C (SITO C). At the time he was happy to be starting in a new position which he regarded as being well suited to his skills. He worked as a Mainframe Systems Programmer.
8. During 1994 Mr Morton found his work on a new computer project stressful. His feeling of being stressed was increased in March 1995 by a restructure of his area of responsibility which took place without his being consulted.
9. In February 1995 he was promoted to a SITO B position. Prior to his promotion he had received very satisfactory performance reports and there were no reports of poor performance recorded against him.
10. In August 1995 Mr Morton was informed by his supervisor, Mr Payne, that he had a choice of moving back to his original SITO C position or of accepting a temporary SITO B job (i.e. a job at the level to which he had been promoted in February 1995) which would probably last no longer than 6 months. He was told that if he had not found employment elsewhere at the end of that job it was likely he would be declared surplus.
11. We accept that Mr Morton regarded this proposal as a threat to his employment and that it was very disturbing to him. We accept also that he perceived that Mr Payne was acting beyond his power in proposing that he return to his original position (from which he had been promoted) without the appropriate performance management processes having been undertaken.
12. On 28 August 1995 Mr Morton consulted Dr Brown. Dr Brown had been his general practitioner since 1991. Dr Brown’s clinical note of the consultation was that he discussed with Mr Morton his work situation and the options available to him. Mr Morton consulted Dr Brown again on 28 October 1995 when they had a long discussion concerning his “work hassles”. On 15 November 1995 Dr Brown prescribed medication to treat Mr Morton’s symptoms of anxiety.
13. Dr Brown gave evidence. He impressed us as an honest witness and as an experienced practitioner with a detailed understanding of Mr Morton’s conditions. He expressed his opinions in a considered manner. In his opinion Mr Morton was unsuited for the work he was doing in the Department in 1995 and that the actions of the Department in moving him out of a supervisory role was in his best interests. By April 1996 Dr Brown had formed the opinion that Mr Morton no longer required medication and this was ceased. However, when he gave evidence Dr Brown said that with the benefit of later knowledge of developments in Mr Morton’s mental condition he would have continued the medication until about September 1996.
14. In the opinion of Dr Brown the mismatch of Mr Morton’s abilities with the role he was performing and the other events in his workplace in 1995 “unmasked his psychiatric symptoms of anxiety”, but this aggravation of his condition ceased by late 1996. He said that Mr Morton was “much happier” when he saw him in September 1996. Dr Brown was of the opinion that Mr Morton’s employment did not cause the underlying deficiencies experienced by him.
15. In September 1995 the Human Resources Branch of the Department referred Mr Morton to Mr Craven, a psychologist employed by the Department. Mr Craven’s records of his consultations with Mr Morton have been destroyed and he did not give evidence.
16. Mr Craven referred Mr Morton to Mr Sutton. Clinical Psychologist, and Ms Ward, psychologist, for assessment. This assessment was carried out in September 1995, at which time Mr Morton was still in his SITO B position, a role which was predominantly managerial and administrative. On 18 October 1995 Mr Sutton and Ms Ward reported that:
·if Mr Morton undertook more administrative and managerial tasks “his vocational and personality abilities would be severely challenged”;
·counselling and psychotherapy were recommended as his levels of depression and anxiety were clinically high. [1]
[1] Ex. R3, p.11.
17. Following the assessment by Mr Sutton and Ms Ward, Mr Morton was referred by Mr Craven to Ms Groube, Clinical Psychologist, for treatment. Ms Groube treated Mr Morton from November 1995 until July 1996. Ms Groube’s clinical notes refer to Mr Morton’ presenting problem as “too much pressure at work” and record that his symptoms were consistent with a diagnosis of anxiety and depression.[2] Ms Groube noted that she would contact Dr Brown to propose treatment for these conditions.
[2] Ex.R3,p.26 ff.
18. Mr Morton was assessed by Dr Glaser, Consultant Psychiatrist, in November 2007. The assessment was at the request of Comcare. Dr Glaser provided a report dated 14 November 2007 and gave evidence. [3]
[3] Ex.R1.
19. In the opinion of Dr Glaser Mr Morton suffers from Bipolar I Disorder and has probably suffered from this condition since his teenage years. Dr Glaser reported that, as is very common with this disorder, Mr Morton’s mood swings have gradually worsened. He expressed the opinion that there was no evidence that this psychiatric condition was related to his employment by the Department. However Dr Glaser continued “… even if it is acknowledged that work-related factors might have played some part in aggravating a particular episode of depression, which occurred around 1995 … the effects of this aggravation ceased when he responded readily to anti-depressant medication during 1996.”
20. Taking into account the concession by Dr Glaser and that Dr Brown, Mr Sutton, Ms Ward and Ms Groube assessed and/or treated Mr Morton at the time he is said to have suffered the episode of anxiety and depression, we prefer the view that Mr Morton’s employment materially contributed to that episode. It is not in dispute that Mr Morton suffered from an underlying mental condition to which his employment did not contribute.
21. On the basis of the evidence of Dr Brown and the reports of Mr Sutton, Ms Ward and Ms Groube we are satisfied on the balance of probabilities that in 1995 and 1996 Mr Morton suffered an aggravation of anxiety and depression, which was contributed to in a material degree by his employment by the Department of Defence. This aggravation comes within the definition of “disease” in section 4 of the Safety, Rehabilitation and Compensation Act 1988. In that section ”disease” is defined:
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.
Does Mr Morton continue to suffer from a condition materially contributed to by his employment by the Department?
22. Mr Morton says that his employment by the Department between 1993 and 1996 materially contributed to his present condition, which he described in his claim for compensation as “adjustment disorder with anxiety & depression episodes of psychosis query bipolar.”[4] In his statement of 28 June 2007 he said that he was injured by 3 factors:
·“work related stress related to the office automation project aggravating my Bipolar Disorder;
·overseas work trip affecting my circadian rhythms aggravating my Bipolar Disorder;
·improper threat of demotion or being made excess without the use of proper performance process causing psychological injury.” [5]
[4] Ex.R3 p.53.
[5] Ex.A2.
When he gave evidence Mr Morton repeatedly referred to the last of these factors as the cause of his illness.
23. Mr Morton also relies upon the evidence of Dr Lawrence, Psychiatrist, in support of this claim. He first consulted Dr Lawrence in August 2000, having been referred by Dr Brown. Dr Lawrence provided three reports and gave evidence.
24. In his report of 12 March 2007 Dr Lawrence stated that Mr Morton presented with depression and anxiety when he saw him in August 2000.[6] In his opinion the events Mr Morton experienced at the Department, particularly the conversation with Mr Payne, “have had a major influence on his psychological health and have left him disabled in terms of relating to authority figures and work pressures to a considerable extent.” He expressed the further opinion that “Mr Morton is vulnerable to stressors at work, relating directly …… to his time at the DSD and remains so with recurring episodes of depression and psychosis which we have witnessed over the last year or so.” [7]
[6] Ex.A3.
[7] At page 5 of the report.
25. When Dr Lawrence gave evidence he stated that in his opinion Mr Morton’s experience in the Department was “a very significant factor” in his ongoing condition of depression and anxiety. When asked as to the manner in which the experience in the workplace contributed to Mr Morton’s present condition, Dr Lawrence said that it was “detrimental to his self-worth and confidence”.
26. On the basis of the evidence of Dr Brown, Mr Sutton, Ms Ward and Ms Groube, to which we have previously referred we are satisfied that any aggravation of Mr Morton’s anxiety and depression to which his employment at the Department contributed ceased in 1996. Further we are satisfied that his employment by the Department has not contributed to his condition since that time.
27. We are not persuaded by the opinion of Dr Lawrence for several reasons. He did not explain satisfactorily the basis for his view that the employment by the Department contributed to Mr Morton’ present condition but simply referred to the detriment to Mr Morton’s self worth and confidence. He was unable to explain why Mr Morton did not express to him his concerns as to his treatment by the Department until he experienced a psychotic episode in 2004. On the basis of the evidence of Dr Lawrence we are satisfied that Mr Morton suffered a number of psychotic episodes which were unrelated to his employment and probably were a result of prescribed medication .
28. Further Dr Lawrence was aggressive in response to questioning and we find that his views were influenced by a belief that Mr Morton was treated unfairly, which he referred to as “being one of those things which often occurs in the Public Service”. He referred to Mr Morton as “one of the victims.” This was contrary to the view of Dr Brown who was able to assess Mr Morton at the time he was employed. We find that the opinion of Dr Brown was expressed more objectively and was more considered than that of Dr Lawrence.
Does section 53 of the Act preclude its application to the injury suffered by Mr Morton?
29. Subsection 53 (1) (a) provides:
This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury;
Subsection 53 (3) provides:
Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
30. On the basis of the evidence of Mr Morton and of Dr Brown we are satisfied that by the time Mr Morton consulted Dr Brown in November 1995 Mr Morton was aware that he had suffered an injury in that he was aware that he was suffering anxiety and depression to which his work was a contributing factor. As Mr Morton did not give written notice of this injury to his employer until he made his claim in 2006 we are satisfied that he did not give this notice “as soon as practicable” as required by the Act.
31. However we are satisfied that Mr Morton’s failure to give notice resulted from his ignorance within the meaning of subsection 53(3). We are satisfied that Mr Morton was ignorant of having suffered an injury for which he was entitled to claim compensation until after he experienced a psychotic episode in 2006 and discussed his condition with Dr Lawrence.
DECISION
32. The reviewable decision made by Comcare on 7 May 2007 is set aside.
33. In substitution for the decision set aside it is decided that:
1)Comcare is liable to pay to Mr Morton compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury being an aggravation of a Bipolar Disorder giving rise to anxiety and depression;
2)pursuant to section 7(4) of the Act Mr Morton shall be taken to have suffered the injury on 15 November 1995;
3)Mr Morton continued to suffer the effects of the injury until the commencement of October 1996;
4)Mr Morton has not suffered from any effects of the injury from the commencement of October 1996 until the date of this decision.
34.The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Morton.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: .…….....................................................................................
Peter Horobin
AssociateDate of Hearing 23 & 24 June 2008
Date of Decision 6 August 2008
Representative for the Applicant Tim McGhie.
Counsel for the Respondent Steven Whybrow
Solicitor for the Respondent Stuart MarrisSparke Helmore
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