Needham and Military Rehabilitation and Compensation Commission
[2005] AATA 643
•6 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 643
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/674
VETERANS APPEALS DIVISION ) Re BRYAN NEEDHAM Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date6 July 2005
PlaceSydney
Decision The reviewable decision of the Department of Veteran’s Affairs on 21 March 2003 is affirmed. [sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
VETERAN’S AFFAIRS – depressive and anxiety disorders – causation of depressive and anxiety disorders – course of employment – during the course of service – decision affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 sections 4, 5(2) and 14
CASELAW
Hart v Comcare [2005] FCAFC 16
Donaldson v Comcare [2003] AATA 1166
Hatzimanolis v A.N.I Corporation Limited (1992) 173 CLR 473
Daykin v Department of Defence [1998] AATA 370
Comcare v Mather (1995) 37 ALD 463
Roncevich and Repatriation Commission 23 FCAFC 146REASONS FOR DECISION
6 July 2005 Senior Member, Mrs Josephine Kelly Background
1. Mr Bryan Needham, the applicant in these proceedings, seeks a review of the decision of an officer of the Department of Veteran’s Affairs (“the Department”) dated 21 March 2004 refusing his application for compensation pursuant so s 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). The respondent is the Military Rehabilitation and Compensation Commission (“the Commission”).
2. Mr Needham joined the Australian Army on 7 June 1977 and was discharged on 2 July 1980 at his own request after completing three years of service. His three years of service occurred during peace time. He has no combat experience.
3. He has a history of short term employment in various positions from then until 1992 when he went to the Philippines and Japan. Since returning to Australia in 2002 he has not worked. After leaving the army he worked as a car park attendant at the Chester Hill RSL club, a truck driver, a labourer, and for three years for Ansett as an aircraft cleaner and then as porter loader. Mr Needham also trained in loading and operating heavy equipment for aircraft at Ansett. In the Phillipines, Mr Needham worked for short periods as a bar tender or in restaurants which gave him access to continue to consume large amounts of alcohol.
4. He has a history of drinking to intoxication when he becomes violent. For example, in December 1979 Mr Needham told how he went on a drunken rampage in barracks, smashing windows and kicking down doors and the next day seeking help.
5. He has been married three times, most recently to the mother of two of his children aged 9 and 7 who live with him and his mother. He wife is in the Philippines and has not yet been granted a visa. He has two other children of his second marriage but has not had contact with either of them since 1990.
6. On 20 April 2002, Mr Needham claimed compensation in respect of a chronic depressive order. He claimed that the injury occurred as a “result of physical injuries sustained during army service” (T8).
7. On 3 October 2002 an officer of the Department of Veterans’ Affairs wrote to Mr Needham, advising him of her intention to disallow the claim but giving him an opportunity to provide additional evidence (T17). On 31 October 2002 Mr Needham’s claim for compensation for the depressive disorder was disallowed by the same officer (T20). The reconsideration dated 21 March 2003, affirmed the decision of 3 October 2002.
The Issues
8. The issue in this case is whether Mr Needham suffers a psychiatric condition caused by his army service. It is not disputed that Mr Needham suffers from a depressive condition and an anxiety disorder. What is in dispute is the cause of the condition(s) and whether the cause or causes are ones for which the Commission is liable, that is whether they arose out of or in the course of Mr Needham’s employment within the meaning of s 4 of the Act.
The Legislation
9. Following are relevant provisions of the Act.
10. Section 4 defines injury:
"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.
11. Section s 5(2)(b) of the Act provides that members of the defence force fall within the definition of “employee.”
12. Section 14 provides:
Compensation for injuries
(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.
Evidence
13. Mr Needham’s problems arising from an injury to his right shoulder is one possible cause of his psychiatric conditions. In November 1977 Mr Needham dislocated his shoulder during a ruby football match played between Other Ranks and Non-commissioned officers. Since that time, he has suffered from intermittent dislocations of the shoulder, limited use of it and has had two operations trying to repair it.
14. A second possible cause of Mr Needham’s conditions is a sexual assault that he said occurred in December 1977 when he was 18 years old. He said that after the injury to his right shoulder in November 1977, he was placed on light duties in a kitchen of the army base where was living and working. Mr Needham gave evidence that in December, he went to what was called the Simpson Club on the base with about three or four other people including a corporal who was a cook. He drank heavily enough to become intoxicated with the result that he has a limited recollection of what happened. He does remember lying face down on his bed in his room in the barracks on the base and feeling someone lying on top of him penetrating him. He resisted the assault but does not remember the person who was assaulting him leave his room. He would recognise the man’s face but does not and never did know his name. He saw him after the assault but did not communicate with him or seek to find out his name.
15. Mr Needham did not report the assault at the time and did not speak of it to anyone until he was in Japan in the early 1990s when he indirectly acknowledged it to a friend who had suffered a similar experience. It was not until 2003 that he mentioned the assault to any doctor, and did not tell any member of his family until the day before the hearing when he told his mother. I accept Mr Needham’s evidence about the sexual assault.
16. Mr Needham requested to live out from the barracks from the 1 March 1978 to 1 July 1978 and this was approved. The reason stated for wanting to live away from the barracks was “that my place of residence is only fifteen minutes to camp by car” (Exhibit R4).
17. In 2003 Mr Needham told Dr Darcy, his treating psychiatrist, about the assault in general terms. When he saw Dr Lewin, a psychiatrist, for a medico-legal opinion for the Commission, he provided detail similar to that set out above.
18. Mr Needham had been treated for chronic depressive disorder while in the Philippines (report of Dr DeGuzman, dated 5 February 2002, T6). Dr DeGuzman began treating him on 19 June 2000.
19. Dr Astillero, a physician-psychiatrist, also began treating him in June 2001 (report dated 1 March 2002, T7). Dr Astillero recorded his chief complaints as depressed mood, anxiety, insomnia and hopelessness. Her diagnosis was relevantly Major Depressive DO. The history Mr Needham gave to her related to injuries he had suffered during his service. He did not mention the sexual assault. She noted that he had attempted suicide several times and that he had to be confined in June 13 to June 16 2001 because of his condition. He had turned to alcohol to help him. She quotes him: “I felt used and rubbish. I am no good. I don’t even want to be touched”.
Medical Evidence
20. Three reports from Dr Darcy were in evidence. They were dated 31 May 2004, 2 July 2004 and an updated report of 6 February 2005 (Exhibit A2).
21. In his report of 31 May 2004, Dr Darcy described Mr Needham as a softly spoken man, unsmiling man who at times cried openly “in sadness for himself.” The doctor’s opinion was that Mr Needham “suffers from depression, anxiety and sleep disorder and the severe symptoms he has from these and the difficulties which he has had since he left the army seem to be related to his abuse of alcohol during the service and an incident during his service when he was sexually abused by a corporal”.
22. In his report of 2 July 2004, Dr Darcy answers questions that were asked of him for medico-legal purposes. His opinion about Mr Needham was that “he suffers from quite severe depression and social phobia and anxiety state.” Dr Darcy believes that this is due to the sexual assault of Mr Needham which occurred while he was in the army.
23. In the updated report of 6 February 2005, Dr Darcy’s opinion was that “there is no doubt in my mind that Mr Needham’s severe depression and agoraphobia have arisen out of and been caused by his experiences as outlined by me and others which occurred during his service in the army” and concludes that Mr Needham “needs further treatment indefinitely.” The doctor had the benefit of the reports of Drs Astillero, DeGuzman and Delaforce.
24. Dr Lewin provided a report dated 8 February 2005 (Exhibit R1) and also gave oral evidence. He had been provided with Mr Needham’s service medical records and psychiatric reports from Dr Astillero and Dr Robert Delaforce, and documents from Dr Darcy. Dr Lewin met Mr Needham on a single occasion on the 3 February 2005 and the examination occurred for a period of over two hours.
25. Dr Lewin obtained a complete military history for Mr Needham including the 1977 shoulder injury, the consequential light duties, and the December 1977 sexual assault.
26. Mr Needham told Dr Lewin that “I do not remember much about it. I have hardly told anyone much about what happened. I rarely talk about it.” Mr Needham acknowledged that he had been drinking heavily and had no recollection of leaving the Club. His next independent recollection was of the sexual assault in his room in his quarters.
27. Mr Needham reports that he fractured one of the metacarpal bones and received first aid for what had happened. Mr Needham reports to Dr Lewin that after the assault he almost immediately began to rent an apartment and live with his girlfriend.
28. Mr Needham remembers feeling confused and guilty and fearful that he might end up homosexual after the assault. He said: “I still don’t know to this day what actually happened”.
29. Dr Lewin also provided a detailed psychiatric history. This reports that following the shoulder injury Mr Needham treated himself with Bex and Vincents, compound analgesics and prescribed analgesics. Mr Needham also reports an increase in his drinking quantities. There was a prolonged history of binge drinking.
30. Mr Needham also reports ongoing anxiety symptoms. He described a long term tendency to worry and a “subjective feeling of impending doom.”
31. In regards to the onset of depressive symptoms, Mr Needham recalled that depressive symptoms first began following the assault, in his first year of Army Service.
32. Mr Needham is currently on anti-depressant medication Efexor XR. The dosage is 300mg in the morning and the same dose at night. He has been on this medication for several years.
33. Dr Lewin reports that in the Mental State Examination that Mr Needham described “chronic low grade depressive symptoms” and did not report any morbid depressive symptoms. Dr Lewin reports “I found no objective evidence of a morbid depressive condition. In particular there was no evidence melancholia or anhedonia.”
34. In summary, Dr Lewin’s psychiatric diagnosis was of Generalised Anxiety Disorder which is a lifelong condition, and Dysthymic Disorder, which is a disorder that describes a chronic low grade depression which has been present since his first year of service. There is no diagnosis of Major Depression. He noted the history of a chronic drinking problem but did not diagnose Alcohol Dependence. He said that the drinking problem had been brought into remission.
35. Dr Lewin notes that “it is common for people to develop a mild depressive reaction following an injury”, however, “it is most uncommon for people to suffer a lifelong depressive illness of this nature in response to such an experience.” Dr Lewin states that “it is common for people to experience a chronic depressive condition in the aftermath of sexual abuse in childhood or rape in the adolescent years.” Dr Lewin reports that “there is a direct causal connection between the experience of sexual assault and a subsequent depressive condition.”
36. Dr Lewin reports that he was asked if the depressive condition resulted from a response to disciplinary action or a response to the failure to gain promotion but Dr Lewin reports that “if one assumes that Mr Needham was assaulted, as reported, then his condition is best explained on that basis.” In his opinion, when the causal nexus ceased is hard to answer and confirms that the assault was a significant contributing factor, particularly at the time of onset of the condition.
37. Dr Lewin’s opinion was that “Mr Needham is likely to benefit from a more active approach to treatment” and “he would benefit from a program of more focused outpatient psychiatric treatment including CBT”
Consideration
38. Before going to the submissions made by the parties, I set out my conclusions on the evidence, as those conclusions mean that I do not have to deal with all the submissions that were made. Both Dr Darcy and Dr Lewin express the opinion that the sexual assault was the cause or important contributing factor to Mr Needham’s psychiatric condition. They differ in their precise diagnoses, as set out above. I prefer the diagnoses made by Dr Lewin to those of Dr Darcy because I find Dr Lewin’s analysis more detailed and careful, and therefore more persuasive.
39. Therefore, I find that Mr Needham suffers from Generalised Anxiety Disorder which is a lifelong condition, and Dysthymic Disorder. The latter was caused by the sexual assault in December 1977. The Generalised Anxiety Disorder was not caused relevantly by Mr Needham’s military service, but rather as Dr Lewin said in oral evidence, it has inherent or innate causes.
40. It is therefore unnecessary for me to consider the argument that a psychiatric condition suffered by Mr Needham was caused or arose because he failed to obtain a promotion and the legal consequences of that, see for example Hart v Comcare [2005] FCAFC 16.
41. The question I do have to determine is whether the sexual assault was caused or arose out of Mr Needham’s army service.
42. Mr Johnson on behalf of the Commission referred me to the following authorities. In Donaldson v Comcare [2003] AATA 1166, after reviewing the authorities, (then) Member Bell held “that a soldier on leave is in an interval between two discrete periods of work and that is so even though a soldier may be regarded as being always on service and may only have been taken to the area because of his or her service.”
43. In Hatzimanolis v A.N.I Corporation Limited (1992) 173 CLR 473, in the High Court, Mason CJ, Deane, Dawson and McHugh JJ said:
“For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work” (at 483)
“Accordingly, it should now be accepted that an interval or interlude in an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred during the course of employment, regard must always be had to the general nature, terms and circumstances of employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen (at 484)”
44. In that case, the injured worker was working at Mt Newman in Western Australia, a remote location. The employer had paid for his airfares to Mt Newman, and for his accommodation and full board, as well as some recreational activities. He was working 6 days a week, which may have included Sunday. Their Honours found that the whole period during which the injured worker was engaged in working at Mt Newman constituted an overall period or episode of work. Further, the employer had through an authorised employee, encouraged the injured worker to go on the sightseeing journey during which he was injured when one of the vehicles crashed. The authorised employee had organised and made vehicles available for sightseeing journeys such as the one embarked upon one Sunday by the worker who was injured.
45. In the case of Daykin v Department of Defence [1998] AATA 370 heard by Senior Member Handley, the injured worker was allowed an option of living on the base or not as was Mr Needham. In that case the Applicant was stood down at 4.30pm. Senior Member Handley held that this created an “interval between discrete periods of work which was not, therefore in the course of his employment.”
46. Given my findings, the relevant decision relied upon by Mr Jackson who appeared for Mr Needham, is Comcare v Mather (1995) 37 ALD 463. In that case one soldier was killed and the other injured by an intoxicated motorist, while they were returning to base from a hotel. The soldiers were on exercise in the Northern Territory. Relevantly, Kiefel J found that the injuries occurred during an interval within an overall period of work and that the injury occurred within a “particular place” which was within the ambit of the employer’s encouragement or inducement, although some matters were left to the discretion of the employee. Her Honour held that “encouragement” is not to be given a narrow meaning limiting it to some positive action or to specific terms which might lead the employee to do something or go somewhere in particular.
47. I am aware that the High Court has heard and reserved its decision in the case of Roncevich and Repatriation Commission 23 FCAFC 146 which although concerned with different legislation involves similar issues. The decision has not been given at the time of this decision.
Conclusion
48. The facts surrounding the sexual assault established by the evidence are vague. Mr Needham went to the Simpson Club after finishing work, with others from the kitchen, including the person who assaulted him. That was an interval between discrete periods of work. He became intoxicated. He returned to his room and was sexually assaulted. On the evidence, I am unable to determine to what extent, if at all, his intoxication contributed to the sexual assault happening. He may have been followed or the person may have accompanied him. I do not know. He did resist when he became aware of he assault, but it may have been his intoxication permitted the assault to progress further than it would have otherwise before he became aware of what was happening. Again, I do not know.
49. Did the assault arise out of or in the course of his employment? In my opinion, it did not. Going for a drink after work with a few people from his workplace was not in my opinion in the course of his employment. He was not required to attend. It was not an incident of his employment that he go. In that respect, he was like any person in a work place who decides to go for a drink after work. Further, it is not clear what extent if at all his intoxication contributed to or caused the sexual assault.
50. There is not sufficient proximate causal connection in my opinion between his employment and the facts of his drinking and returning to his room on the base, and the assault.
Decision
51. For the above reasons, I affirm the decision under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 25 February 2005, 29 March 2005
Date of Decision 6 July 2005
Counsel for the Applicant Mr C. Jackson
Solicitor for the Applicant Fairbairn Lawyers
Counsel for the Respondent Mr. G. Johnson
Solicitor for the Respondent Sparke Helmore
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