O'Flaherty and Comcare
[2007] AATA 2056
•14 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600684
GENERAL ADMINISTRATIVE DIVISION ) Re GREGORY JOHN O'FLAHERTY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Regina Perton, Member Date14 December 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
COMPENSATION - whether injury compensable – whether illness caused or aggravated by employment – notice of injury - paranoid schizophrenia – post traumatic stress disorder - decision affirmed
Compensation (Commonwealth Government Employees) Act 1971 ss 5, 27, 29, 53, 54
Safety, Rehabilitation and Compensation Act 1988 ss 14, 123, 124
REASONS FOR DECISION
14 December 2007 Regina Perton, Member 1. Gregory John O’Flaherty worked for the Commonwealth Banking Corporation (the bank) from 4 July 1977 to 12 February 1988 when it was part of the public sector. An armed robbery took place at the branch at which Mr O’Flaherty was working on 18 August 1983. On 24 August 1999, Mr O’Flaherty lodged a claim for compensation stating that he suffered from stress, depression etc compounded by an unsure diagnosis and resultant stigma as a result of the armed robbery. He provided a medical certificate dated 4 August 1999, in which a general practitioner stated that Mr O’Flaherty suffered from post traumatic stress syndrome from 1982 to indefinite.
2. On 23 September 1999, Comcare disallowed Mr O’Flaherty’s claim on two bases: namely that his claim for compensation was not lodged within the prescribed period under the relevant legislation and because the medical evidence did not establish, on the balance of probabilities, that he had suffered an injury as defined in the legislation. A review officer affirmed the decision on 13 June 2002.
3. Mr O’Flaherty lodged an application for review with the Tribunal on 10 July 2002 but withdrew the claim on 4 February 2003. In 2006, he sought permission to lodge a fresh application for review. Comcare agreed to an extension of time, and the Tribunal granted Mr O’Flaherty the extension of time to lodge the fresh application. Mr O’Flaherty lodged the application for review currently before the Tribunal on 13 June 2006.
4. The issues before the Tribunal in this matter are twofold. Firstly, whether Mr O’Flaherty’s notice of the claimed injury met legislative requirements. Secondly, whether the psychiatric illness from which he suffers was caused or aggravated by the armed robbery.
MR O’FLAHERTY’S EVIDENCE
5. In his claim form signed on 14 February 1999, Mr O’Flaherty stated that he was claiming compensation for reduced earnings commencing from 14 February 1988 and continuing indefinitely. Mr O’Flaherty provided a number of written submissions to the Tribunal which, among other things, verified the date of the armed robbery and that he was working on that day. His latest written statement is dated 22 July 2007. Mr O’Flaherty tendered documents including a personal reference dated 3 December 1993 by a bank colleague, Mr Bruce B Titter, who stated that he and Mr O’Flaherty worked together from August 1984 to November 1986. Mr Titter described Mr O’Flaherty as honest, hardworking and diligent with an excellent rapport with staff and clients alike.
6. In his oral evidence, Mr O’Flaherty stated that after the bank robbery in 1983, his marriage disintegrated. He was divorced in 1985. He said that his family and work colleagues were concerned about him and suggested he consult a psychiatrist. He saw Dr Oliver Larkin for around eight months in 1985 and 1986. He described Dr Larkin arranging for him to be tested for various possible conditions, all of which proved negative. He stated that Dr Larkin had not made a diagnosis or initiated medication but had suggested assertiveness training and other psychological tools. Mr O’Flaherty said that by 1987 he was a bit psychotic. He described a psychotic episode in which he chopped off the top of a finger and the subsequent diagnosis of schizophrenia by Dr Tieppo, at the Footscray Psychiatric Hospital.
7. Mr O’Flaherty stated that, in 1992 or 1993, Dr Senadipathy, a psychiatrist, suggested he should seek a pension and possibly some redress from the bank. He said that he had approached a plaintiff law firm for assistance in around 1994. Mr O’Flaherty said that he was subsequently admitted as an involuntary patient to Royal Park Psychiatric Hospital on the recommendation of Dr Katsenos. He said that because of an increase in his medication and resultant side-effects, he lost track of his legal contacts. Mr O’Flaherty said that he was granted a disability support pension in November 1995. After getting some documents from the bank, he lodged a claim for compensation with Comcare in 1999. The claim was rejected due to the length of time that had elapsed since the robbery and because Comcare queried whether the armed robbery had actually taken place. He said that he was initially unable to obtain relevant evidence and he therefore withdrew his first Tribunal application lodged in 2002. He later obtained relevant evidence through the Victorian Crimes Compensation Tribunal which held a record of $600 compensation paid to him in 1983. Mr O’Flaherty said that he again approached Comcare and eventually the Tribunal allowed a fresh application for review with Comcare’s consent.
8. Mr O’Flaherty said that Dr Katsenos’s notes mention a condition of post traumatic stress schizo-reactive syndrome. Mr O’Flaherty stated that other doctors had also mentioned post traumatic stress and that he was made aware that they believed that his current psychiatric condition was triggered or exacerbated by the armed robbery.
9. Under cross-examination by Mr Lenczner, counsel for Comcare, Mr O’Flaherty indicated that he sought out Dr Larkin because of the symptoms he was experiencing rather than about the robbery itself. Mr O’Flaherty believed he had mentioned the bank robbery to Dr Larkin. There was discussion of the contents of Dr Larkin’s medical records and whether Mr O’Flaherty was satisfied as to their accuracy. He said he believed some of the information was incorrect, including a mention of a nickname he was said to possess that he stated was wrong as well as conclusions drawn about his upbringing and events in his youth.
10. Mr O’Flaherty described what happened during the robbery. He and the other branch staff were referred to their own doctors and Mr O’Flaherty took three days off with a medical certificate. The bank recommended he seek compensation from the Crimes Compensation Tribunal which he successfully did. Mr O’Flaherty believed he had given adequate notice to the bank of his injuries in that the bank was aware of the impact of the robbery on him as it was the bank that suggested to him that he lodge the crime compensation claim. He confirmed that he had not considered that his illness was related to the robbery until around 1994 or 1995 as no one had suggested it to him until then. Nor had he been aware that post traumatic stress disorder (PTSD) arose in circumstances other than on the battlefield. Mr O’Flaherty referred to brochures he had been given by a case manager, prepared for the Vietnam Veterans’ Association, which described the diagnosis and symptoms of PTSD. He said that the symptoms set out in the brochures were those he was displaying.
MEDICAL EVIDENCE
11. Dr Daniel de Villiers, a general practitioner, prepared a report dated 20 July 2007. He stated that he had first seen Mr O’Flaherty on 8 August 2001. Dr de Villiers stated that Mr O’Flaherty had been diagnosed with schizophrenia many years earlier. He went on to state:
He had multiple presentations with concerns that appeared to be related to his mental illness. These were characterised by very strong convictions about various symptoms and diseases and each concern would last for a period of time, be investigated and no pathological basis could be found.
Some of these involved strong convictions of events that occurred. The factual basis of these could not be shown.
…
He discussed a robbery that took place in the eighties on many occasions. He was very clear about dates and events and greatly frustrated by the apparent denial that any such event took place.
…
His mental state is clearly in the province of specialists in psychiatry, and I will not venture an opinion as to the causal relationship of the events and his illness, it is however abundantly clear that the events of the past plays a major role in his level of anxiety and discomfort in the present day.
12. Dr Robert Carson, a general practitioner, also provided a report dated 20 July 2007 in which he stated:
I have known Greg since 1999 when I briefly acted as his General Practitioner, he had recently moved back home to Maryborough. He had been under the care of the Bendigo Mental Health Services and had a diagnosis of schizophrenia….
Greg had often reiterated to me his sources of anxiety. One episode that is paramount was a bank robbery that left him somewhat troubled.
In 1999 he had other stresses. He believed people held grudges, others were “in the position to delude.” …
In 1999 there was obvious evidence of disordered thought process.
Greg believes the bank robbery was the cause of his troubled life. Certainly this was a major event and probably life changing. It is however medically not possible to link this event with his schizophrenia. Perhaps his own management of the events was adversely influenced by this illness in a detrimental way.
13. Dr Larkin, in correspondence dated 17 July 2007, indicated that Mr O’Flaherty had been his patient from June 1985 until March 1986. He stated that:
… He presented with symptoms of depression, emptiness and aimlessness in his life since separating from his wife 12 months before. He was concerned for his sanity and felt very guilty about his past life and childhood.
At that time I diagnosed him as having a very isolated character structure and extremely low self-esteem but did not diagnose depression. The treatment was to try and ameliorate his guilt over the past and his great regret for leaving his marriage. Over several visits his self-esteem and functioning improved with greater understanding and self acceptance.
He also complained of deja-vu type phenomena where he was convinced he had been somewhere before, had met people before and kept mixing up the past and the present and thus feared for his sanity and his sense of reality.
I diagnosed this as a dissociative state but because he had a number of closed head injuries as a child and adolescent I was concerned about the possibility of Temporal Lobe Epilepsy and referred him to Dr Les Sedal, Neurologist. Dr Sedal was essentially in agreement with me that these were not epileptic or organic phenomena but a dissociative state. At this stage there was no history of a bank robbery offered and I put this down to childhood trauma and his recent separation and isolation. However, an event such as a robbery could give rise to such a dissociative state as part of a post-traumatic stress disorder. I did not make such a connection at the time, because he did not tell me of a robbery at work but was pre-occupied with his failed marriage. This symptom of dissociation did not change over the 9 months that I saw him.
14. In oral evidence, Dr Larkin responded to Mr O’Flaherty’s question as to whether the armed robbery could have contributed to the onset of his psychiatric condition or exacerbated it, as follows:
…in retrospect, I could say that any history of an armed robbery could have contributed to a condition that you presented to me with. It’s just that when you presented to me, there was no history of that armed robbery or any sequelae given, as far as I’ve written or as far as I can recall. But it would cast the symptoms in a different light if I had known that, especially the symptoms of dissociation, but also it would help explain feelings of depression and, well, the general sort of disruption to your life that was evident at that time.
15. In response to questions from Mr Lenczner, Dr Larkin confirmed that the causes of schizophrenia are not well known. He said that there are...genetic factors and then there are other possible precipitants, but there does need to be pre-disposition. Dr Larkin confirmed that he had not diagnosed Mr O’Flaherty as suffering from schizophrenia during 1985 and 1986. He said that Mr O’Flaherty was largely pre-occupied with events of his childhood and the break up of his marriage.
16. In response to the Tribunal’s question as to whether it was a probability or possibility that Mr O’Flaherty’s symptoms could be part of PTSD, Dr Larkin said that it was about halfway between the two.
17. Dr Spiros Katsenos, consultant psychiatrist, wrote to Mr O’Flaherty on 11 August 2006 after a request for medical information. Dr Katsenos stated that he did not have any medical files related to Mr O’Flaherty and suggested he obtain reports from his current treating doctor. He stated that he had been a medical officer without post-graduate psychiatric training at the time he had been in contact with Mr O’Flaherty eleven years earlier, and he was struggling to accurately recall the exact events. He went on to state:
I can state that it is possible that if you had made an allegation that you were the victim of an armed robbery, and this was contributing to your psychiatric symptoms, that I may well have encouraged you to seek appropriate compensation through the correct channels and procedures. Unfortunately, as described above, it is impossible for me to recall the exact circumstances during your sessions with me.
I do recall that I did recommend you as an involuntary patient due to a psychiatric illness. Again unfortunately, I do not recall any other significant details….
18. Dr Dush Shan prepared a report dated 14 November 2002 at the request of Comcare’s then solicitors. Dr Shan was of the opinion that Mr O’Flaherty was not suffering from PTSD or any other work-related illness. He stated that:
With respect to a diagnosis of Post-Traumatic Stress Disorder, there was little to find. The patient does not describe any clinically significant symptoms of avoidance behaviour. Feeling uneasy in banks can only be considered an appropriate reaction for any person who has been in a robbery in a bank. Even persons who have not actually experienced a bank robbery sometimes are keen to leave a bank as soon as possible in case there is a robbery. ... Through the current Comcare process, the patient has begun to think about the incident more. That is a natural and normal reaction.
…
… His psychiatric diagnosis is Schizophrenia. I would say that the patient was already experiencing the prodrome of Schizophrenia by the time of consultations with Dr Larkin in 1985.
No incident at work significantly or materially precipitated the condition of Schizophrenia or any other psychiatric condition in this individual
…
There is no incapacity for work because of an employment related condition. The patient is however totally incapacitated for work, in my opinion, even though he sometimes does some casual work for the family business.
It is unlikely that this patient will ever resume a full capacity for work. The patient will require indefinite psychiatric treatment for the treatment of Schizophrenia. ….
19. Mr O’Flaherty expressed a concern about Dr Shan’s report, querying his independence. This was because Dr Shan was attached to the Alfred Hospital where the trainee doctors whom Mr O’Flaherty believed had encouraged him to lodge the compensation claim, had been supervised by Dr Shan. At the hearing Mr O’Flaherty, who had initially given notice that he would be seeking oral evidence from doctors who had provided reports and/or medical records, decided not to call any further oral medical evidence.
20. The Tribunal also had before it notes from various other doctors at clinics where Mr O’Flaherty had been treated in relation to his schizophrenia.
LEGISLATION & DISCUSSION
21. The transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) require that an injury suffered before the commencement of the Act should be dealt with under the legislation in place at that time. Section 53 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) was the relevant legislation when the armed robbery occurred. Sections 53 and 54 of the 1971 Act required that the employer be given notice of the injury in a timely fashion:
53(1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth -
(a) as soon as practicable after the occurrence of the injury;
(b) if the employee was not, immediately after the injury, aware that he had sustained an injury – as soon as practicable after he became so aware; or
(c)….
(2) This Act does not apply in relation to a disease contracted, or an aggravation , acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served, as prescribed, on the Commonwealth -
(a) as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(b)…
…
(4) Where:
(a) a notice purporting to be a notice referred to in a preceding subsection of this section has been served on the Commonwealth;
(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and
(c) the Commonwealth 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 deemed to have been served in accordance with that sub-section.
22. Section 54 of the 1971 Act set out the prescribed periods in which a claim should be lodged. This was to be within six months of the injury or within six months of the claimant becoming aware of the contraction or aggravation of a disease. If it was lodged outside this period, s 54(6)(c) would allow consideration only if the Commonwealth was not prejudiced by the delay and where the failure to comply with the six month provision was, among other things, from ignorance, from a mistake or from any other reasonable cause.
23. Section 5(1) of the 1971 Act provides the following definitions of disease and injury:
“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
…
“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;
24. Sections 27 and 29 of the 1971 Act allowed for payment of compensation where an injury or disease caused and/or aggravated or accelerated its recurrence.
25. Mr O’Flaherty lodged his claim for compensation on 24 August 1999. This was more than 16 years after the robbery and more than a decade since he had stopped working for the bank. Comcare disallowed the claim on 23 September 1999 on several bases; namely that there was insufficient information that Mr O’Flaherty’s delay in making the claim was attributable to one of the allowable grounds in s 53 of the Act; that the bank had destroyed files relating to his employment and the armed robbery; and, that the only medical evidence it then had, apart from Centrelink records showing that he had been suffering from paranoid schizophrenia since 1970, was a medical certificate from Dr Carson dated 4 August 1999 in which he stated that Mr O’Flaherty had suffered from Post Traumatic Stress Syndrome from 1982 to indefinite. Mr O’Flaherty did not lodge a request for reconsideration of the decision to disallow the claim until September 2001. This was due in part to his battle to gain access to relevant documents to assist his claim. Comcare also attempted to find relevant medical documents to enable reconsideration of the decision and tracked down some material. Comcare also commissioned further medical reports both from past treating doctors, such as a report from Dr Larkin dated 29 May 2002. On reconsideration, the Comcare delegate determined that Mr O’Flaherty had been aware of his psychiatric illness since 1988 and therefore had not met the requirement of notice within six months. Even if he had met the provisions of s 54 of the 1971 Act, Comcare stated it was not satisfied that he had suffered an injury that was contributed to in a material degree by his employment.
26. The Tribunal is satisfied that both Mr O’Flaherty and Comcare have been prejudiced by the claim being lodged so long after the robbery. However, a substantial amount of medical evidence has now become available, as well as confirmation that the armed robbery took place while Mr O’Flaherty was working at a branch of the bank. Hence, the Tribunal is satisfied that in this case, it is appropriate to examine that evidence and make a decision about Mr O’Flaherty’s claim rather than refuse to consider the claim on the basis of its late lodgement.
27. After the robbery in 1983, Mr O’Flaherty had three days off work. He continued to work for the bank for another five years until February 1988. He was diagnosed as suffering from schizophrenia in that year and has been under medical care for that condition ever since. A number of the doctors who have had contact with Mr O’Flaherty have stated that Mr O’Flaherty has mentioned the robbery to them. However, none of them has made a definite diagnosis of PTSD or determined that the robbery has been a cause of his current illness or its aggravation. Some have mentioned it as a possibility but not as a probability.
28. Dr Larkin stated that when he was treating Mr O’Flaherty two years after the robbery, Mr O’Flaherty had made no mention of it. Dr Larkin stated that if he had known about the armed robbery, it may well have cast Mr O’Flaherty’s symptoms in a different light. However, despite his comment in his 2007 report, that knowledge of the robbery might have helped him to treat Mr O’Flaherty some 20 years earlier, he was not prepared to state that Mr O’Flaherty’s symptoms were, on the balance of probabilities, symptoms of PTSD. Dr Larkin also acknowledged that he did not associate Mr O’Flaherty’s symptoms at that time with schizophrenia, which was diagnosed a little over two years later.
29. Dr Carson whose medical certificate dated 4 August 1999 stated that Mr O’Flaherty suffered from the condition post traumatic stress syndrome from 1982 to indefinite did not state the same thing in his report written almost 25 years after the robbery. In his report of 20 July 2007, Dr Carson stated that Mr O’Flaherty had frequently mentioned the robbery while he, Dr Carson, was his general practitioner but that Mr O’Flaherty also faced other stresses and difficulties. Dr Carson stated that Mr O’Flaherty had been diagnosed as suffering from schizophrenia but that it is not medically possible to link the robbery with schizophrenia. He expressed the view that events of the past play a major role in Mr O’Flaherty’s anxiety but he did not diagnose PTSD. Dr Shan reported in November 2002 that Mr O’Flaherty was not suffering from PTSD and that the events at work did not precipitate his diagnosed condition of schizophrenia.
30. For Mr O’Flaherty to be eligible for compensation under either the 1971 Act or s 14 of the 1988 Act, the Tribunal must be satisfied, on the balance of probabilities, that he is suffering from PTSD or another condition and that his PTSD or other condition was related to his work with the bank, and more particularly the armed robbery in 1983.
31. The Tribunal accepts that an armed robbery occurred at the bank while Mr O’Flaherty was working there. Dr Larkin and others have mentioned the possibility of the event impacting on Mr O’Flaherty. The Tribunal accepts that the armed robbery has had an impact on Mr O’Flaherty in terms of his recollection of the event. However, there has not been a diagnosis that PTSD, schizophrenia or any other ongoing condition has been caused by the robbery. Dr Larkin was not prepared to go beyond his comment that, had he known of the armed robbery when treating Mr O’Flaherty, he may well have viewed his symptoms in a different light. The medical evidence before the Tribunal indicates that schizophrenia, with which Mr O’Flaherty has been diagnosed, does not arise from an event such as the armed robbery.
32. The Tribunal is not satisfied that Mr O’Flaherty is suffering, or has suffered, from an injury or disease that arose out of, or in the course of, his employment with the Commonwealth. He is therefore not entitled to compensation.
DECISION
33. The Tribunal affirms the decision under review
I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member
(sgd) Ursula Noyé
Clerk
Date of hearing: 23 & 24 July 2007
Date of decision: 14 December 2007
Advocate for the applicant: Self-representedCounsel for the respondent: Mr J Lenczner
Solicitor for the respondent: DLA Phillips Fox
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