Newbery and Comcare
[2008] AATA 752
•26 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 752
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2006/1401
GENERAL ADMINISTRATIVE DIVISION ) Re PETER NEWBERY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member and Dr I Alexander, Member Date26 August 2008
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal finds that as at 4 March 2006 the Applicant continued to be entitled to compensation for medical expenses and incapacity payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 for his compensable condition of “aggravation and acceleration of schizophrenia”. ...............[sgd]...............................
Ms N Isenberg
Senior Member
CATCHWORDS
COMPENSATION – compensation for aggravation and acceleration of schizophrenia ceased – application resigned from employment more than twenty five years prior to cessation of compensation – whether aggravation and acceleration of Applicant’s condition caused by work is continuing – decision under review set aside
Compensation (Commonwealth Government Employees) Act 1971 – s 29
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 16 and 19
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Barker v Australian Telecommunications Commission [1990] FCA 107 (9 April 1990)
Australian Postal Corporation v Bessey [2001] FCA 266 (20 March 2001)
Casarotto v Australian Postal Commission (1989) 86 ALR 399
REASONS FOR DECISION
26 August 2008 Ms N Isenberg, Senior Member and Dr I Alexander, Member INTRODUCTION
1. Mr Newbery commenced employment at the Department of Veterans’ Affairs (“DVA”) in 1971. During the years 1973 to 1976 Mr Newbery took leave to undertake a Bachelor of Arts degree and commence a Diploma of Education course, which he did not complete.
2. In 1978 Mr Newbery experienced difficulties at work. He resigned from the DVA in February 1979.
3. Initially Mr Newbery was in receipt of unemployment benefits, but the benefits were ceased because of his failure to seek work. In 1980 when Mr Newbery first sought medical help for his problems he was diagnosed as suffering from schizophrenia. He was granted sickness benefits for the condition of “nervous condition”. In August 1984 he was granted an invalid pension for schizophrenia.
4. On 7 March 1985 Mr Newbery claimed workers compensation for schizophrenia, which he alleged occurred in the “later half of 1978”.
5. On 25 September 1986 his claim was refused, but on review the Administrative Appeals Tribunal (“the previous Tribunal”) determined that Mr Newbery’s employment had contributed to an aggravation or acceleration of his condition of schizophrenia and had contributed to his continuing incapacity: Re Newbery and Commonwealth of Australia (AATA 4080, 18 January 1988).
6. During the hearing before the previous Tribunal Mr Newbery gave evidence of an incident involving a typist in June 1978. He alleged that the typist had kicked him, poured soft drink over him and punched him in the stomach. In cross examination, Mr Newbery conceded “he had no problems in the first two years of his work before he went to University. Nor had he had any problems during his ordinary degree course, but he had failed a post graduate course. [Mr Newbery] said he had smoked marijuana and used LSD before he went to University but he gave them up because he wanted to pass his exams”. Mr Newbery stated that it was not until 1985 “he felt he could cope” with making a claim for workers’ compensation.
7. There was evidence before the previous Tribunal of Mr Newbery having experienced past stresses which included drug abuse, being dropped by a girlfriend who subsequently became a lesbian and failing at university. The Tribunal accepted Dr Revai’s view that a psychiatric opinion, nine years after the events, which is based on the Applicant’s history alone, is no more than an educated guess. However, the Senior Member distinguished this instance by noting that the previous Tribunal had the contemporaneous notes of Dr Spragg and the interpretation of them by psychiatrists who gave evidence. The previous Tribunal found Mr Newbery’s schizophrenia was not caused by his employment with DVA, but was aggravated or accelerated by interpersonal conflicts with other staff.
8. Mr Newbery was paid ongoing payments for incapacity and medical expenses. Comcare arranged for Mr Newbery to be examined by Dr Brown, consultant psychiatrist and psychologist, on 31 March 2005. Mr Newbery was informed by letter dated 25 May 2005 that he appeared at the present time not to be entitled to worker compensation benefits. He was invited to present further evidence to support his claim. By 3 February 2006 no further evidence had been submitted and a decision was made to stop his payments with effect from 4 March 2006. That decision was affirmed on reconsideration on 8 August 2006. On 11 October 2006 Mr Newbery filed an application for review with the Tribunal.
ISSUES FOR DETERMINATION
9. Whether as at 4 March 2006, Mr Newbery continues to be entitled to compensation for medical expenses and incapacity payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act1988 (“the Act”) for his compensable condition of “aggravation and acceleration of schizophrenia”.
LEGISLATIVE FRAMEWORK
10. Sections 16 and 19 of the Act provide for compensation for medical expenses and incapacity to be paid to an employee in respect to an injury which as at March 2006 was defined in s 4(1) of the Act as:
(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 29 of the Compensation (Commonwealth Government Employees) Act 1971 provided for compensation in respect of death, loss, disfigurement or incapacity through disease as follows:
29. (1) Where-
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course ofthat employment,
the succeeding provisions of this section have effect.
(2) If-
(a) the death of the employee;
(b) a loss to the employee of a kind referred to in section 39 or 40 of
this Act;
(c) facial disfigurement to the employee;
(d) a loss to the employee of the sense of taste or smell; or
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence or the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears-
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth;and
(g)the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
(3) The last preceding sub-section does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease.
EVIDENCE
12. Mr Newbery gave evidence that after his studies he returned to work at DVA and worked in 3 different areas: Advices, Claims Investigations and Summary Writing.
13. He said that from his return to work he experienced the gradual onset of symptoms because of increasing stress in the workplace. With each job it became worse. He said there was “an atmosphere of uproar in the office” which was caused by his behaviour. There was “mass hysteria”: “I’d do something and then the ratbag sheilas in the joint would go berserk, become hysterical”. He was ‘outraged’ by an incident when a typist threw a can of drink at him and punched him. That incident was not, on its own, responsible for his condition though. He had a series of “annoying” supervisors. From June/August 1978 he started to “hear voices”. As this increased his work became harder to do. While the work itself was 'a cinch’ he had difficulty coping with a succession of aggressive supervisors who were obsessed with tidiness and wouldn’t leave him alone. He had to devise strategies to work around them. This was a major stressor.
14. He was referred to the Commonwealth Medical Officer, and was seen by Dr McMahon in November 1978. The doctor recorded that he was “resentful about his superiors” and Mr Newbery said that was because they were harassing him. He spoke only about physical symptoms because that’s “what you talk [about to] doctors”.
15. He resigned in 1979 but his condition was not diagnosed until 1980. At the time he resigned he did not know what his condition was. His letter of resignation was in ‘nice’ terms, on the advice of a friend. He thought he would have a rest for three months and then be able to get back to some work. At that time he was still hearing voices, about half a dozen times a day.
16. In November 2007 he experienced two psychotic episodes, one of which resulted in hospitalisation. This was due to his having gone off his medication. He thinks the stress of this hearing may have brought them on. Since that time he has been compliant with his medication. He came under the care of Dr Pusic in 2005 and has seen him four times. Otherwise he has received his psychiatric care from his general practitioner, Dr Perera who prescribes his current medication.
17. He agreed he had used marijuana in 1971 three times a week but gave up in 1972. He had use LSD, about 10 times, between September 1971 and June 1972. He had broken up with his girlfriend who turned out to be a lesbian. He denied any family history of schizophrenia or hallucinations. He agreed he had told Dr Perera he was stressed at his brother’s ill health but that was not ongoing and his stress had abated when brother recovered.
18. He initially disagreed with some of the quotes attributed to him by Dr Brown, especially that the voices he hears are about sexual matters. He conceded that he experienced “sex and death hallucinations” but Dr Hartley had assisted in that regard. He currently continues to hear voices although they have been “muffled” since he has been medicated.
19. He considered himself to have a permanent “tilt on the brain”.
MEDICAL EVIDENCE
20. Dr Pusic, consultant psychiatrist, first saw Mr Newbery on 14 September 2005. Subsequently, he reviewed Mr Newbery on four occasions and provided a report dated 7 June 2007 in which he stated that Mr Newbery’s condition was unchanged. Dr Pusic diagnosed Mr Newbery with Chronic Schizophrenia Undifferentiated Type (DSM-IV). In his report Dr Pusic noted Mr Newbery’s history of difficulties at work between 1976 and 1978 which led to a psychiatric assessment in 1978, but that the condition was not diagnosed as schizophrenia until 1980.
21. Dr Pusic’s report indicated that he found Mr Newbery to display predominantly the negative symptoms of the illness such as amotivation, anhedonia and affective blunting. He considered there had been deterioration in Mr Newbery’s personality consistent with the chronic effects of a schizophrenic illness. Dr Pusic reported that Mr Newbery has lost his social skills and was “eccentric in his presentation and interaction”. He considered that Mr Newbery has social withdrawal to the point that his only meaningful contact is with his brother with whom he lives. There has also been a deterioration in his occupational functioning and is now totally unable to be engaged in any form of remunerative employment. Dr Pusic considered that there had been “no amelioration in his symptomatology nor has there been any improvement in his social or occupational functioning since the exacerbation of his schizophrenic illness in 1978 whilst under the employ of the [DVA]”.
22. On the issue of causation Dr Pusic deferred to contemporaneous medical examinations and opinions, rather than conduct a retrospective assessment of circumstances thirty years ago. He did, however, agree with the decision of the previous Tribunal that Mr Newbery’s schizophrenia “was not caused by his employment” but that stress associated with his employment contributed to his illness to the point that he “was rendered totally unfit for work”. Dr Pusic agreed with the opinions of previous psychiatrists that it was more likely than not that the stress that Mr Newbery suffered at work was a “significant contributing factor in exacerbating and accelerating” his illness and the resulting deterioration in his condition was “permanent and irreversible”.
23. In his evidence Dr Pusic stated that prevention of acute psychotic episodes was an important goal in the treatment of schizophrenia because the more acute episodes an individual suffers generally means a worse prognosis. Furthermore he commented that functional deterioration that occurs during an acute episode may not fully recover when the acute symptoms resolve with medication leading to stepwise deterioration with each episode.
24. In cross examination Dr Pusic conceded that he did not explore in detail the events in 1977-1978 with Mr Newbery, and relied on the documentation provided to him. He did note, however, that Mr Newbery was reluctant or not interested in exploring these issues in detail. In response to a question from the Tribunal Dr Pusic agreed that it was very difficult to take consistent consecutive histories particularly with regard to details in patients with chronic schizophrenia.
25. Dr Pusic agreed that schizophrenia is a genetically predetermined condition, but observed, that in the work context:
… What was happening in the office when you have a person who is somewhat strange, shall we say, or is going through a prodromal phase of illness, is then either humiliated, he’s assaulted, he’s marginalised, he’s discriminated, he’s criticised and so on … the reaction to those people around him, the way he was treated, the way he was eventually physically attacked, certainly it would have been a sufficient severe stress … to cause an acute deterioration in this man, leading to his resignation …
26. Dr Pusic noted that the significance of Dr Spragg’s report in 1978 was not whether he took a history of “trauma”, but that a mental state examination revealed that Mr Newbery was suffering psychotic symptoms and that this was happening at work.
27. In Dr Pusic’s opinion:
… that incident which occurred where the typist attacks him, is indicative that there were difficulties in the office, and that had an effect on Mr Newbery at the time … and that effect on his illness has continued in that it caused an exacerbation of his illness which then led to Dr Gorst in 1980 diagnosing, without any equivocation, a simple schizophrenia ...
28. On the issue of the role of the alleged work stressor and in response to persistent questioning by Mr Elliott, the Respondent’s counsel, about Mr Newbery’s failure to discuss with his general practitioner the alleged event with the typist, Dr Pusic commented that he thought Mr Elliott was assuming that the stressful event was the cause of all ongoing problems. Dr Pusic, however, considered that there was stress occurring at work and the alleged assault was indicative “that stress had caused an acute exacerbation, deterioration” in Mr Newbery’s condition and expressed the opinion that “once there is an acute deterioration the person does not necessarily return to his pre-morbid level of functioning” even after the stress is removed and is in itself no longer relevant. He went on to say that there is now good evidence from neuro-imaging that “every time that a patient experiences an acute psychotic episode there can be structural brain changes … [that] are permanent.
29. In response to a question from the Tribunal Dr Pusic agreed that incidents that would seem minor to a normal person may be exaggerated or more significant for a person in the early stages of schizophrenia.
30. Dr Brown, consultant psychiatrist and psychologist, provided a report dated 31 March 2005 and a supplementary report dated 20 November 2007. He also gave oral evidence.
31. In his report, based on one interview, Dr Brown stated that he found no reason to doubt Mr Newbery’s symptoms, as they were consistent with his presentation. However, Dr Brown did outline some concerns. He noted that Mr Newbery had a superior knowledge of schizophrenia, as he spoke of negative symptoms and knew the difference between the types of hallucinations. Mr Newbury was astute in perceiving any threat to his compensation, he was vague as to what the female staff were doing at work and how his employment was the cause of his schizophrenia. He was also eager to have his agoraphobia seen as a separate condition to that of his schizophrenia.
32. Dr Brown believed Mr Newbery met the diagnosis of chronic schizophrenia of the paranoid type of a moderate degree. He did not believe Mr Newbery merited a separate diagnosis of agoraphobia.
33. In Dr Brown’s opinion, the cause of Mr Newbery’s schizophrenia was constitutional, and not related to his work. He noted Mr Newbery said he was using marijuana and LSD some years before the onset of his schizophrenia. Dr Brown observed that the use of drugs can bring forward the onset of schizophrenia in genetically predisposed individuals. He noted that “apart from drug use, schizophrenia usually develops spontaneously but its onset can be precipitated by a significant stress. Dr Brown made the following observation:
… I found little in the AAT determination which indicated what the work stress actually was. I also found his description of what they [the females in the office] did to be vague and also to suggest that it was based more on delusions and auditory hallucinations than their behaviour. Thus their behaviour rather than being a precipitating cause appeared to be a symptom of his schizophrenia …
34. Dr Brown noted that “the usual onset of the condition is spontaneous and the symptoms are such that causation is often wrongly attributed to environmental events, most often insignificant ones”. Dr Brown believed that Mr Newbery had developed schizophrenia which manifested in his workplace.
35. Dr Brown noted that Mr Newbery developed symptoms in 1978 that included auditory hallucinations, and that these symptoms began to interfere with his work before his resignation in February 1979. He did not make any comment with reference to the effect of these symptoms on Mr Newbery, but merely described them.
36. Dr Brown referred to a document dated 20 September 1978 that described some of the problems Mr Newbery was creating at work as a result of irrational behaviour, but made no mention of any significant incident involving the particular typist. Dr Brown noted that Mr Newbery’s schizophrenia got worse after he stopped working as he was not on any medication, but failed to acknowledge that the diagnosis was in fact not made until January 1980 when he was started on antipsychotic medication.
37. When considering Mr Newbery’s diagnosis Dr Brown provided a summary of the features of schizophrenia and described it as a “functional psychotic illness” that arises from “the individual’s psychological constitution” but requires a genetic predisposition. The illness is “characterized by recurrent acute episodes of psychotic behaviour with normality or residual symptoms in between episodes”. He noted that “residual symptoms may increase in severity as further episodes occur”. He also noted that “some episodes, moreso the first can be precipitated by stress. That is their onset is brought forward in time.”
38. Dr Brown noted that Mr Newberry described his precipitating stress as the “behaviour of a coterie of girls in the office” and went on to say that “[i]f they were actually engaged in inappropriate behaviour to him before he had any manifestation of schizophrenia then this could well have precipitated his schizophrenia”. As noted previously, Dr Brown commented that had he found little in the previous Tribunal’s decision which indicated what the work stress actually was and had found Mr Newbery’s description of the work related events as vague and attributed them to delusions and auditory hallucination.
39. Dr Brown wrote that in his opinion, the Mr Newbery’s schizophrenia was “no longer related to his employment”. He noted that the schizophrenia was “the result of a pre-existing psychological constitution”. Dr Brown further noted that Mr Newbery’s Commonwealth employment could not be considered as being an acceleration or aggravation of his condition, as any such contribution from work would have long ceased to be significant.
40. In his summary Dr Brown stated that Mr Newbery developed schizophrenia which became manifest in his workplace and that the that the timing of the onset “could have been contributed to by prior use of LSD and marihuana [sic], issues in his personal life related to a girlfriend, and/or from adverse behaviour of female staff at work”. He went on to conclude that from his history Mr Newbery had been delusional and subject to auditory hallucinations and that the difficulties experienced in relation to the female staff were an effect of his schizophrenia rather than a factor in any aggravation or acceleration of his disease.
41. He then goes on to say that in his opinion “unless there was clear evidence that he was subject to unreasonable stress at work [he] saw no reason to attribute the schizophrenia to [Mr Newbery’s] employment”.
42. As to prognosis Dr Brown was of the opinion that Mr Newbery’s schizophrenia was chronic and would not be expected to improve but may be aggravated if pressured to do something he did not want to do.
43. In his oral evidence Dr Brown stated that his purpose in interviewing Mr Newbery was “to look at causation rather than treatment”.
44. In response to a question from Mr Elliott as to whether he believed that Mr Newbery’s schizophrenia was aggravated by events in 1978 he gave a somewhat confusing response, but acknowledged that if Mr Newbery was suffering early symptoms of schizophrenia that stress would have made Mr Newbery more emotional and he would have incorporated the stressful events into his “developing delusional system”. He went on the express the opinion that in 1978 Mr Newbery had developed schizophrenia “or was well on the way” and that when his strange behaviour exhibited itself in the workplace this was likely to have caused some adverse reaction in his work colleagues including his bosses. In response to questions from the Tribunal it became clear that Dr Brown agreed that if actual stress occurred and was significant in the eyes of the patient it could precipitate an acute psychotic episode. It also became apparent that some of Dr Brown’s opinions about 1978 were based on an assumption that the events had not occurred.
45. In cross examination Dr Brown agreed that the residual or negative symptoms of schizophrenia could increase in severity with each successive psychotic event. In response to a question from the Tribunal regarding physical changes in the brain following acute psychotic episodes Dr Brown was dismissive of the technology and gave a clear impression that he was not up to date on this issue. On the issue of whether a person may be worse than their pre-morbid state following an acute episode Dr Brown conceded that this was possible, but not usual with treatment using antipsychotic medication and commented that the aim is to treat as soon as possible.
46. Dr Brown agreed that the longer a schizophrenic condition remains untreated the greater the risk of the condition becoming more entrenched. Dr Brown conceded that if Mr Newbery’s workplace had resulted in a provocation of his psychotic symptoms and remained untreated for 12 months the ultimate treatment of his residual symptoms would be more problematic. He stated that the aim in the diagnosis of schizophrenia is to treat as soon as possible in the hope of stopping episodes of schizophrenia recurring and also that the absence of prompt treatment enhanced the likelihood of increased severity of residual symptoms.
CONSIDERATION
47. There was no issue that Mr Newbery suffers from schizophrenia and that since the relevant date in the primary determination and the reviewable decision, is incapacitated for work and requires medical treatment. The Respondent submitted though that any stress suffered by Mr Newbery during his employment was a symptom of his schizophrenia and that his condition was not accelerated or aggravated by his employment. If his condition was aggravated by his employment, as at 4 March 2006, any aggravation had ceased.
48. The Respondent correctly noted that the previous Tribunal’s finding, in itself, did not give rise to any future benefits. The Respondent did not appeal against the previous Tribunal’s decision and subsequent benefits were in fact paid to Mr Newbery by further determinations by Comcare. There would have been no need for those types of determinations if indeed the previous Tribunal had been able to determine that he was forever entitled to compensation. In Comcare having made those payments however, it is only logical to come to the view that, until payments were ceased from 4 March 2006 the Respondent was prepared to accept that Mr Newbery’s employment had contributed to an aggravation or acceleration of his condition of schizophrenia, as the previous Tribunal had found. While this Tribunal is empowered to re-visit earlier findings, the circumstances in this matter are very different to those in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253, to which we were referred. There, new technology placed in doubt the diagnosis, and therefore the fundamental basis upon which the parties had proceeded.
49. Both parties made submissions about who might bear the onus of proof to persuade the Tribunal to its view. We were referred to Barkerv Australian Telecommunications Commission [1990] FCA 107 (9 April 1990) where Einfeld J approved the Tribunal’s approach:
10. The Tribunal took the view that no onus of proof lay on either party in its proceedings “and that the status quo must remain unchanged, unless the evidence establishes that it should be changed”. …
11. … I agree in substance with the tribunal's formulation of the appropriate test…
We too consider that to be the preferred approach.
50. In submissions the Respondent referred to Australian Postal Corporation v Bessey [2001] FCA 266 (20 March 2001) paragraph 6, where Gyles J citing Casarotto v Australian Postal Commission (1989) 86 ALR 399 and other cases, expressly stated that an aggravation can be temporary, and that after a time it may cease to have any effect and leaves the underlying condition no worse. A similar view was expressed in Casarotto with respect to aggravation.
51. The crux of the Respondent’s submission was that the effects of Mr Newbery’s work on his condition had long since ceased.
52. The Respondent referred us to Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 410:
It would be necessary in each case, be it one of aggravation or acceleration, to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.
53. We turned then to the medical evidence (per Casarotto) to determine what, if anything has changed about Mr Newbery’s condition (per Barker).
54. The doctors agreed that Mr Newbery suffers chronic schizophrenia. Dr Pusic was of the view that the stress associated with Mr Newbery’s work contributed, aggravated, or accelerated his schizophrenic illness to the point where he was rendered unfit for work. In Dr Brown’s opinion, on the other hand, the cause of Mr Newbery’s schizophrenia was constitutional, and not related to his work. Dr Brown was of the opinion that Mr Newbery’s schizophrenia was “no longer related to his employment”. This is somewhat inconsistent in our view, with his premise that Mr Newbery’s schizophrenia was the result of a pre-existing psychological constitution and thereby unrelated to his work in any event.
55. Dr Pusic observed that there was no improvement when Mr Newbery ceased work and he remains unable to be engaged in any form of remunerative employment. He considered Mr Newbery’s deterioration to be permanent and irreversible. Even Dr Brown agreed that Mr Newbery’s schizophrenia was chronic and would not be expected to improve. The evidence was that the auditory hallucinations that began to interfere with Mr Newbery’s work before his resignation in February 1979 continue, but are “muffled” with the assistance of medication.
56. Dr Brown agreed with Dr Pusic that the longer a schizophrenic condition remains untreated the greater the risk of the condition becoming more entrenched, and that if Mr Newbery’s workplace had resulted in a provocation of his psychotic symptoms and remained untreated for 12 months the ultimate treatment of his residual symptoms would be more problematic. We note that Mr Newbery was not treated until 1980.
57. Dr Pusic noted that a person does not necessarily return to his pre-morbid level of functioning even after the stress, even if it seemed minor to a normal person, is removed and is in itself no longer relevant. Dr Pusic referred to the neuro-imaging that can evidence permanent structural changes in the brain every time a patient experiences an acute psychotic episode. Dr Brown was disparaging of such a technique, but we do not consider his evidence to have refuted Dr Pusic’s proposition, as he agreed that the residual or negative symptoms of schizophrenia could increase in severity with each successive psychotic event.
58. On the whole we found Dr Brown’s evidence unconvincing. He was clearly focused on causation. We found his assessment somewhat superficial, particularly when one considers he was trying to evaluate circumstances that occurred almost 30 years ago. His views were strongly influenced, it seems to us, by his doubts whether the events actually occurred. He appeared to have difficulty with the issue of exacerbation, although he agreed ultimately that stress can cause the acceleration of the underlying disease through precipitating an acute episode. Also, in our view, he tended to focus on the schizophrenia as a disease in general rather than direct his observations to Mr Newbery’s situation in particular. Overall, Dr Brown’s evidence did not effectively refute the previous Tribunal’s decision, if anything it was consistent with that decision.
59. On the other hand, we found Dr Pusic’s evidence persuasive. He gave plausible explanations for his opinion. He also appeared to have a clear understanding of Mr Newbery’s situation and had had the benefit of assessing him on several occasions.
60. Applying Casarotto, the medical evidence on balance leads us to the view that Mr Newbery continues to suffer the effects of the aggravation or acceleration of his schizophrenia (per Barker).
61. We therefore find that, as at 4 March 2006, Mr Newbery continued to be entitled to compensation for medical expenses and incapacity payments pursuant to sections 16 and 19 of the Act for his compensable condition of “aggravation and acceleration of schizophrenia”.
DECISION
62. The decision under review is set aside and in substitution therefor the Tribunal finds that as at 4 March 2006 the Applicant continued to be entitled to compensation for medical expenses and incapacity payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 for his compensable condition of “aggravation and acceleration of schizophrenia”.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr I Alexander, Member
Signed: ..............[sgd]..................................................................
AssociateDate of Hearing 28 and 29 July 2008
Date of Decision 26 August 2008
Counsel for the Applicant Mr P Stockley
Solicitor for the Applicant Mr M Coorey, C & M Lawyers
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Ms B Audsley, Australian Government Solicitor
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