Noveski and Telstra Corporation Ltd - [2001] AATA 56

DECISION AND REASONS FOR DECISION [2001] AATA 56

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/4

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KRSTE NOVESKI
  Applicant
           And    TELSTRA CORPORATION LIMITED
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member

Date31 January 2001
PlaceCanberra

Decision      The tribunal affirms the decision under review.
  ..................(Sgd)...................
  Pamela Burton
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – anxiety condition – whether caused or contributed to by conditions of work – underlying anxiety state – whether ongoing liability for aggravation

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

31 January 2001 Pamela Burton, Senior Member Dr Michael Miller, AO, Member

This is an application by Mr Krste Noveski (the "applicant") for review of a decision by Telstra Corporation Limited (the "respondent") ceasing liability to pay compensation in respect of a generalised anxiety state precipitated by work stress. The respondent made a determination ceasing liability for this condition on 30 June 1999. This decision was affirmed on 15 December 1999, which is the decision now under review.
The hearing took place on 15 January 2001 in Canberra. Mr Hugh Selby represented the applicant and Mr John Wallace represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"). Admitted into evidence were a number of medical reports and notes. The applicant and Mrs Menka Noveska, the applicant's wife, gave evidence in person. Telephone evidence was given by Dr Robert Lewin, psychiatrist.
The applicant received compensation for a generalised anxiety state precipitated by work stress (T14, p.33). The respondent ceased liability for this condition on 30 June 1999 (T48, p.98). The issue is whether the applicant continues to suffer from this condition, and if so, is it caused, or materially contributed to, by his employment and is a disease or injury under the Safety, Rehabilitation and Compensation Act 1988 (the "Act"). This entails consideration of the issue of whether or not the applicant was already suffering from a long-term anxiety disorder before he first experienced symptoms that led to a work injury in 1994. That is, whether his 1994 illness was a temporary exacerbation of a pre-existing generalised anxiety state.
The applicant contends that he continues to require psychiatric care, including medication, to control his anxiety condition. He also contends that the condition prevents him from returning to work as a cable joiner with the respondent. The respondent contends that on and from 30 June 1999 the applicant has not suffered an injury or disease as understood by the Act.
Section 14 of the Act requires that compensation be paid for liability for an injury, which results in death, incapacity for work or impairment. Section 16 provides for liability to pay for reasonable medical expenses incurred by the employee in relation to treatment of the injury.
The condition for which the applicant received compensation arose out of his employment as a cable joiner, which work he found difficult and with which he felt unable to cope. The precipitating incident took place on 20 July 1994 and not 19 July 1994, as recorded in the incident report completed by the applicant in October 1994 (T3, p.6). The applicant's evidence is that on the same day as he had the breakdown, he saw his doctor at Florey Medical Centre and was taken by ambulance to Calvary Hospital. The Florey Medical Centre's medical notes (Exhibit 4) and those of Calvary Hospital (Exhibit 2) record his attendances as 20 July 1994.
The applicant says that he was worried about how he might perform in the cable-joining job before he started it. His anxiety about the job commenced in mid 1993 at the time he was asked to attend an interview for the position. The symptoms he says he has suffered since 20 July 1994 are chest pains, sweating hands, shaking and headaches. In giving evidence the applicant had some difficulty describing what he meant by "headaches". He said that his head symptoms were not so much pain as pressure, fuzziness, and a feeling that his head would explode. The applicant also described the feeling as "like a light bulb losing power", over which he had no control (T32, pp.62-63).
The applicant's current psychological condition does not preclude him from doing physically heavy work, but does preclude him from cable-joining work. The medical consensus is that the applicant should not return to cable-joining work. He has, however, a compensable back condition, which, it would appear, prevents him from undertaking heavy manual work. He is presently on light duties working full-time for the respondent.
The first task for the tribunal is to determine what, on the material available to it, was the applicant's medical history prior to his breakdown at work on 20 July 1994.
The applicant's medical history
The documented material available to the tribunal in respect of the applicant's medical history prior to July 1994 are the medical notes from the Florey Medical Centre (Exhibit 4), Dr Niewiadomsky's notes (Exhibit B), and computer records of medical certificates provided to the respondent, presumably by Dr Niewiadomsky, in relation to various absences for medical reasons from work (T60).
The applicant denied seeing any doctors between 1989 and 1994, but on further cross-examination about medical certificates provided in this period he stated that he saw Dr Niewiadomsky, but only in relation to his back. Dr Niewiadomsky's records were then obtained during the course of the hearing. They confirm that the applicant saw him primarily in relation to his back complaints in this period. Dr Niewiadomsky continued to see the applicant about his back and other complaints up to May 1998, whilst at the same time the applicant attended the Crawford Street Medical Clinic (Exhibit B). The only reference in the Florey Medical Centre notes to any symptoms similar to those of which he complains now, is a reference to "dizziness" in March 1989. However, this seems to be a note that Naprosyn he was taking caused dizziness, and as a result he ceased taking that medication.
From the medical records available the tribunal concludes that the applicant did not consult a doctor prior to 1994 about anxiety, depression, dizziness or other symptoms from which he currently complains. This tends to support the applicant's contention that he did not suffer from anxiety or any depressive condition prior to the 1994 incident. On the other hand, the applicant made no complaint at work and sought no medical advice about his stress and anxiety symptoms in the period mid 1993 to July 1994, despite, on his evidence, suffering severe anxiety and worrying about his cable-joining work. Thus, the tribunal must look further than the documented medical records to ascertain the applicant's pre-1994 state of his mental health. The next best evidence available is his own evidence, that of his wife's, and the histories taken from him by the various medical practitioners who have since examined him. The history provided by the applicant to his treating doctors and the medico-legal specialists forms the basis upon which the various medical opinions available to the tribunal are founded.
The significant history starts with an event the applicant describes as occurring in January or February 1989 in which the applicant was involved. Whether it had any significant impact on the applicant's mental health is an issue in these proceedings. The applicant witnessed a single vehicle accident. The vehicle involved had overtaken the vehicle the applicant was driving, ran out of control and overturned. The applicant thought someone might have died or have been injured, and he stopped to see if the occupants of the car needed help. It seems they were not seriously injured, and the applicant reported the accident to the police. He said he returned to the accident site and saw that the police had arrived and that everyone seemed all right, so he left (Exhibit C). He went home and related the incident to his wife. The next day some people in a car flashed their lights and made rude gestures at him. The applicant was worried that it was to do with the events of the previous night (T46, p.95).
In evidence the applicant's wife said that other than on the night when the incident occurred, she heard no more about this incident from the applicant, and that thereafter he remained in good mental health until his 1994 breakdown. The applicant said that the incident worried him at the time, but not for long afterwards. However, this belies the histories he gave to various doctors after the 1994 incident.
Apart from the applicant's back injury and recurrences of it from time to time, there is no evidence before the tribunal of any other significant event or emotional trauma relevant to the tribunal's consideration.
On the occasion of his illness on 20 July 1994, the applicant attended his doctor and was taken by ambulance to Calvary Hospital. The ambulance notes mention "dizzy and unwell", "[n]o headache, no visual changes". He complained of "fuzziness", but no history was given (Exhibit 2). He did not attribute his problem or illness to anything that occurred at work. However, the next day he returned to the Florey Medical Centre where a note was taken stating that "patient dates fuzzy head back to time of motor vehicle accident 7 years ago" (Exhibit 4).
On 25 July 1994 the applicant attended the Crawford Street Medical Clinic complaining of pressure in the head and chest. It was noted that he gets upset easily. It seems that Sinequan was prescribed (Exhibit 3).
On 2 August 1994 the applicant attended the Florey Medical Centre still complaining of headaches, and pressure on the temples. He was referred to Dr Colin Andrews, neurologist, and the attending general practitioner noted with a query the possibility that the symptoms were stress related.
On 9 August 1994 the Crawford Street Medical Clinic noted that the applicant was on Sinequan and feeling better, and it was noted that he was to see Dr Colin Andrews on 11 August on referral from the Florey Medical Centre.
On 12 August 1994 Dr Andrews reported to both practices, indicating that the applicant "had some depression now for some years" (Exhibit 4). Dr Andrews referred to the motor vehicle accident, which he understood occurred three years earlier, by noting "he possibly caused a motor vehicle accident although he was not injured in it and not part of the accident. Since then he has been getting the flashing lights and the raised fingers from people involved in that incident. He has become very fearful and paranoid." He goes on to report that the applicant is not sleeping well, and that he has lost interest in quite a few things, "although his sex life has not fallen away". Dr Andrews noted that the applicant was on "Sinequan 25 mgs two at night, but is still somewhat depressed." He suggested the dose be increased (Exhibit 6).
On 25 August 1994 the Florey Medical Centre notes record the diagnosis of depression and the recommendation made by Dr Andrews (Exhibit 4).
The applicant was seen at the Crawford Street Medical Clinic on 19 September 1994 in which it was noted that he had "panic attacks", that he was seen at Queanbeyan District Hospital and that he was prescribed medication but was no better. It recorded that he had had "guilt feelings about being indirectly involved in a rollover accident 6 years ago". He was referred to Dr Mickleburgh, psychiatrist.
Dr Sukumar of the Crawford Street Medical Clinic, reports on 19 October 1994 that the applicant first consulted him on 23 September 1994 when he reported "bursting type of headache affecting his temples, constant ringing in the ears, unable to concentrate at his work place and being in a continuous state of agitation and anxiety" (T10). He recorded that these symptoms were reported as having continued for two to three weeks, but that the history of anxiety and agitation, however, "date back to 1989 when he was involved in a motor vehicle accident". Dr Sukumar states that he referred the applicant to Dr Mickleburgh, although that referral is recorded as having been made a few days earlier.
Dr Sukumar elaborates on his earlier report in a report of 15 February 1999 (T38). He notes a "history of clinical depression with agitation dating back to 1989, when he witnessed a motor vehicle accident, although he was not injured in it or part of the accident" (T38, p.81). Dr Sukumar reports: "[s]ince then he had been getting flash backs of flashing lights and images of people injured in that accident. Subsequently he has been very fearful and paranoid". Some of this information may have been taken from Dr Andrews' report which was available to Dr Sukumar, although it is reasonable to assume that Dr Sukumar obtained a similar history independently of Dr Andrews, as in at least one aspect Dr Sukumar's history differed from that of Dr Andrews. In stating that the applicant had lost interest in normal activities, Dr Sukumar added that the applicant's "libido was adversely affected", contrary to what Dr Andrews recorded.
On about 25 September 1994, the applicant's wife took the applicant to the accident and emergency section of Woden Valley Hospital. There, Dr Jin examined the applicant. Dr Jin found the applicant to be extremely anxious, and he considered in the absence of abnormal physical findings that the headaches were possibly related to the anxiety. He recommended a psychiatric assessment. He noted the applicant's complaint of frontal headache, that he had suffered from this symptom for the last two months, and that he was on Sinequan during this time which did not help him. He also noted a history of "Anxiety – depression since MVA 5 years ago" (report dated 25 September 1994, Exhibit 5).
In her oral evidence Mrs Noveska explained that Dr Jin received the history of the motor vehicle accident from her. She said that she was asked many questions about the applicant's history including whether he had been involved in any accidents, and she mentioned the incident of 1989 as a matter of history. It is difficult to accept that Dr Jin concluded that the applicant had anxiety and depression since the motor vehicle accident in 1989 from a history provided in the context in which Mrs Noveska said she gave it. It is more likely that the applicant or Mrs Noveska emphasised the motor vehicle accident as significant in the applicant's mental health history. Further, the history Dr Jin recorded is consistent with the history given by the applicant to his general practitioner that he had the dizzy symptoms in his head since that incident. It is also noteworthy that no reference was made to the applicant's stress and anxiety about his work situation to Dr Jin or to any other doctor during this time.
Dr Mickleburgh next saw the applicant. In his report of 21 November 1994, he states that he treated the applicant for a generalised anxiety state, which he found was precipitated by work stress (T13). The applicant in evidence said that it was not until the consultation with Dr Mickleburgh that he understood that work had played a role in his ill health. Until then, he did not know that he could not cope with his work. He said in evidence that during 1993 and the first half of 1994 when he experienced anxious feelings about his work he did not consider himself ill. He thought that he had to work harder in order to understand the work better. He said that he was grateful to Dr Mickleburgh for having worked out his mental condition and the reason for it.
It is from the time that he saw Dr Mickleburgh that the applicant has, understandably, played down the significance of the 1989 motor vehicle accident in the attribution of his condition. Interestingly, Dr Mickleburgh comments that the applicant's "anxiety was displaced on to various somatic symptoms". Dr Mickleburgh recommended that the applicant be transferred to other work with which he would feel capable and confident.
On 5 October 1994 the applicant completed an incident form at work in which he described the July 1994 incident as "[g]ot headaches and stress from trying to get an understanding of the job I was doing" (T3). He lodged a claim for compensation which was accepted. The applicant continued under the care of Dr Mickleburgh, and saw Mr Bonneville, psychologist, who taught him relaxation techniques (T32, p.65).
Medical opinions
Dr Sukumar, the applicant's general practitioner, in his medical report of 19 October 1994, states that the applicant told him on 23 September 1994 that he had suffered anxiety and agitation for two to three weeks. He presented as depressed and paranoid. Dr Sukumar also noted that the motor vehicle accident in 1989 caused the applicant anxiety and irritation. In his report of 15 February 1999 (T38), Dr Sukumar states that under the care of Dr Mickelburgh the applicant's psychotic depression has improved significantly since the 1994 episode, and that he is taking 10 mg of Zyprexa daily. He concludes that the applicant "suffered from major psychotic depression associated with paranoid ideations, probably triggered by the stressful experience of witnessing a distressing accident". Neither in the report of 19 October 1994 nor his later report of 15 February 1999 (T38) is there a mention of the applicant's workplace problems.
Dr Snowdon, psychiatrist, in his report of 6 November 1998 (T32) thought the applicant was "actively symptomatic" when he saw him in October 1998. In his report of 21 November 1998 (T32) Dr Snowdon noted that the applicant reported no health problems before 1994. The applicant denied having been in any accidents until Dr Snowdon referred to the 1989 accident. Dr Snowdon diagnosed severe generalised anxiety disorder and panic attacks. He found a strong indication of a pre-morbid propensity to develop anxiety states precipitated by stress. He is of the opinion that the applicant's work as a cable joiner materially contributed to the contraction of his condition, though he thought that contribution was temporary, having ceased when the applicant ceased that type of work. He said that the continuation of his symptoms and his present condition "is related to his own specific propensity to develop an ongoing anxiety, and panic disorder". In his view the applicant's workplace cannot be considered a contributor to his current condition.
In a further report dated 19 March 1999 (T41), Dr Snowdon took into account the material contained in Dr Sukumar's report, and in particular the history of severe and ongoing depression which commenced in 1989. Dr Snowdon accepted that the applicant's depression was the underlying cause of subsequent symptoms, which originated after witnessing the accident in 1989 and which have continued. He concludes, therefore, that the applicant's ongoing depression, the predominant feature of which is currently anxiety, is the substantial cause of his psychological symptoms, rather than the workplace. He states: "It is his Depressive Disorder, which is unrelated to the workplace, which is the sole cause, at this time, of his psychological symptoms".
Dr Kerner and Dr Stern, psychiatrists, both provide opinions that the applicant's ongoing psychological symptoms are work related. Both doctors paid little attention to the effects of affects the 1989 motor vehicle accident on the applicant, presumably reflecting the lack of emphasis given to it by the applicant.
Dr Kerner, the applicant's treating psychiatrist, in his report dated 16 June 1999 (T46) noted that the applicant was "shocked" and felt victimised for having stopped at the accident, and that these feelings soon faded. Dr Kerner wrote that "the symptoms one would expect a person to experience should they be affected by such a traumatic incident are similar to the symptoms that Mr Noveski experienced, and at some level continues to experience as a result of the trauma associated with being employed in the Joining Section of Telstra" (T46, p.95).

In his report dated 16 July 1994, Dr Kerner sets out his diagnoses of "a generalised anxiety disorder as well as a panic disorder without agoraphobia, as a result of being transferred to a significantly more difficult job for which he was inadequately prepared and/or trained, at least as perceived by himself" (T51, p.104). Dr Kerner states, without elaborating, that there is no evidence to suggest that the applicant "… had any significant problems with a pre-morbid anxiety condition". Thus, Dr Kerner is of the opinion that the applicant continues to suffer from a generalised anxiety disorder which he attributes solely to the applicant's reaction to his work situation in 1994.
Dr Stern, psychiatrist, provided a report dated 15 October 1999 (T54), having examined the applicant at the request of his solicitors. The applicant did not recall seeing Dr Stern. Dr Stern received a history of the applicant witnessing a motor vehicle accident in 1989, and as a consequence of which the applicant was shocked and felt guilty for a short period. The history upon which he proceeded was that the applicant had no pre-existing psychiatric disorder. He understood that the applicant's symptoms commenced in 1994 and continued with some improvement. He diagnosed a panic disorder which had began in 1994. Dr Stern does not provide much detail or support for his opinions. He did not comment in any depth on the effect on the applicant of the 1989 motor vehicle accident. It seems that he understood from the history he received that the applicant's reaction was a normal response to what he saw.
Dr Lewin took a full history from the applicant and gave a thorough and well-reasoned report dated 2 May 2000 (Exhibit 1). The applicant told him that he had always been somewhat of a worrier. "I used to worry about little things. Now I worry too much" (Exhibit 1). The applicant did not volunteer information about the 1989 accident. Dr Lewin raised it with the applicant. Dr Lewin had before him, and accepted as accurate, the previous histories the applicant had provided as to the effect on him of the 1989 accident. Dr Lewin reasoned that in the normal course such an incident should not have had such an impact on the applicant's health. He explained that the applicant could, however, suffer a fairly severe illness it he had a predisposition to anxiety.
Dr Lewin diagnosed the applicant as having a long-term anxiety disorder which waxed and waned over the years. In evidence Dr Lewin said that it was common for a person to have a life long anxiety condition, and that the condition tends to be episodic. He said that there is no particular evidence of it having a crescendo effect, or that it becomes more severe or is aggravated with age. However, he explained that if there is an established pattern of the condition it takes less to trigger it, and the episodes can last some months or even years.
Dr Lewin saw the 1994 work-event as having temporarily exacerbated the applicant's anxiety disorder, which ceased when the applicant was removed from the cable-joining work. When he examined the applicant on 1 May 2000 Dr Lewin thought that his symptoms were low-grade. He noted that the symptoms were well controlled with the behavioural technique that he had learned and antidepressant medication. Neither Drs Kerner nor Stern report on the applicant's condition after October 1999, and thus we accept Dr Lewin's assessment of the applicant's current psychological condition.
Dr Lewin gives a convincing diagnosis of a pre-existing pre-disposition to the development of anxiety symptoms which were temporarily aggravated by the 1989 accident and then the events of 1994. Dr Lewin did not resile from the opinions expressed in his reports under cross-examination. He considered that the applicant's current mild and intermittent symptoms were consistent with his pre-existing long standing underlying anxiety state.
In coming to this opinion Dr Lewin regarded the applicant's past history of a significant psychological reaction to witnessing a motor vehicle accident in which no one was hurt, as relevant. Doctors Kerner and Stern were provided a history that minimised the applicant's anxiety state in the period 1989 to 1993 or 1994. Dr Lewin's opinion accords with the medical evidence available and the histories offered since 1994 by the applicant, and is consistent with the views of Drs Snowdon, Mickleburgh and Sukumar. The tribunal accepts the validity of assessments made of the applicant's pre-1994 anxiety state being based on the histories he provided, notwithstanding the absence of medical attention or treatment for the condition.
The applicant's counsel points to the fact that, prior to the cable-joining work, the applicant was a well regarded worker who enjoyed his job and was able to hold down another part-time job as a cleaner. It was submitted that, but for the 1994 work-related incident, the applicant would not require the medication which he is currently taking. The tribunal is not satisfied that this is the case. It might equally be said that had the applicant's underlying condition been recognised and treated in 1989, or even in 1993 when he suffered anxiety about his work, he might not have suffered the severe attack that he had in July 1994. The applicant's submission depends on there being no finding of a pre-existing anxiety condition, that the applicant's present symptoms have not abated, and an acceptance of the views of Drs Kerner and Stern. We have made findings that counter these propositions.
Conclusions
On the evidence available to the tribunal we find it more likely than not that the applicant suffered a work-related aggravation of a generalised anxiety state in 1994 but which probably resolved when he was removed from the cable-joining duties, and certainly resolved by the time the respondent ceased liability for his injury in June 1999.
Taking the evidence as a whole, the tribunal concludes that any ongoing symptoms suffered by the applicant are related to his underlying anxiety or depressive state. The applicant's prognosis is good, and though he is currently on medication, he is able to work full-time in duties suitable to his back condition, and which do not include the duties which triggered his 1994 illness episode.
Decision
The tribunal affirms the decision under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member and Dr Michael Miller, AO, Member
Signed:   .....................................................................................
  Associate
Date of Hearing  15 January 2001
Date of Decision  31 January 2001
Counsel for the Applicant        Mr Hugh Selby
Solicitor for the Applicant         Gary Robb & Associates
Counsel for the Respondent    Mr John Wallace
Solicitor for the Respondent    Sparke Helmore