Perry and Comcare
[2004] AATA 289
•19 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 289
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/624
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT JAMES PERRY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date19 March 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that:
(i) the applicant is entitled to compensation for schizophrenia and alcoholism pursuant to Section 124 of the Safety, Rehabilitation and Compensation Act 1988;
(ii) such incapacity is partial in that the applicant suffered an 80 per cent loss of capacity to work;
(iii) such compensation relates to the period 3 April 1976 until 2 April 1978.
....................(Sgd)......................
J Cowdroy
Member
CATCHWORDS
COMPENSATION – schizophrenia – psychiatric injury – Commonwealth not prejudiced by failure to lodge claim within time limit – reasonable cause for failure to lodge claim within time limit – acceleration of condition by external stimuli of accident – accident continued as contributing factor to presence of schizophrenia – partial incapacity – decision set aside.
Compensation (Commonwealth Government Employees) Act 1971 ss 27, 29, 54
Safety, Rehabilitation and Compensation Act 1988 ss 124Casarotto v Australian Postal Commission (1989) 86 ALR
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Federal Broom Co Pty Ltd v Semlitch (1964) 100 CLR 626
Johnson v Commonwealth (1982) 43 ALR 599REASONS FOR DECISION
19 March 2004 Ms J Cowdroy, Member Hearing
1. This decision relates to a hearing in Brisbane on 3 and 4 March 2003. Upon hearing the oral evidence, the matter was adjourned and written submissions from the parties were received on 30 May 2003.
2. The Tribunal heard evidence from the applicant, Mrs Perry, Dr Hayter, Dr Persley and Dr Petroff, who the respondent made available for cross-examination. The T documents were admitted in evidence as Exhibit 1, as well as the following material:
Exhibit 2Letter from Australian Legal Aid Office dated 4 November 1977 and letter from June Marlene Perry to Dr Petroff
Exhibit 3 Statement of June Perry undated
Exhibit 4 Report of Dr Gary Persley dated 10 September 2001
Exhibit 5 Report of Dr Gary Persley dated 14 November 2001
Exhibit 6 Clinical notes of Dr Petroff
Exhibit 7 Affidavit of Lynette Jane Rieper sworn 28 February 2003
3. The matter was decided on the basis of the exhibits, the oral evidence and the written submissions of the parties, relevant case law and legislation.
Background
4. The following facts serve by way of background to the hearing and are not in dispute. The applicant was born on 22 September 1941. He enlisted in the Army Reserves in 1975 and was discharged in 1976. He had previously served with the Citizens Military Forces for two years from 1960 to 1962.
5. In 2001 the applicant lodged a claim for compensation and rehabilitation in respect of a psychiatric injury, which he attributed to a fall from an Army jeep whilst on exercise on 3 April 1976 (“the accident”). He sustained an injury to his right shoulder. He was admitted to Singleton District Hospital where he was diagnosed as suffering from an injury to his right scapula and "hysterical – acute reaction”
6. By determination dated 5 February 2001, liability was accepted for schizophrenia. At that time, the respondent had in its possession, amongst other reports, a report from Dr I Petroff, psychiatrist, who had been treating the applicant since 1976 and a report from Dr H Bashir, medical officer, Military Compensation and Rehabilitation Service.
7. A further report from Dr Petroff dated 12 March 2001 was received, which was provided in response to a request for further information from the respondent, in which Dr Petroff advised that it more probable than not that the applicant’s employment did not contribute to the aggravation, acceleration or recurrence of his schizophrenia. Relying on that opinion, the respondent revoked the earlier determination accepting liability for schizophrenia.
The Issues
8. The issues to be determined in this case are:
(a)whether the applicant lodged a claim for compensation within the time limit stipulated in Section 54 of the Compensation (Commonwealth Government Employees) Act 1971;
(b)if not, whether the failure of the applicant to lodge a claim for compensation was occasioned by mistake, absence from Australia or other reasonable cause;
(c)whether the Commonwealth has been prejudiced by the delay in lodging such a claim.
(d) whether liability for compensation existed
Legislative Framework
9. As the injury said to have been suffered by the applicant occurred in 1976, the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) is relevant. Section 54 of that Act requires a claim for compensation to be lodged within six months of becoming aware of the contraction of the disease for which compensation is claimed.
10. The exception to that limit is set out in section 54(6) of the Act. It provides:
“Where –
(a)a claim purporting to be a claim referred to in subsection (1) has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that subsection; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, 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 claim shall be deemed to have been served in accordance with that sub-section.”
11. Section 27 of the 1971 Act contains a definition of personal injury:
“(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
(2) If an injury to an employee is intentionally self-inflicted, the Commonwealth is not liable under the last preceding sub-section to pay compensation in respect of that injury.
(3) If an injury to an employee is not intentionally self-inflicted but is attributable to his serious and wilful misconduct, the commonwealth is not liable under sub-section (1) to pay compensation in respect of that injury unless the injury results in the death or serious and permanent disablement of the employee.
(4) An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury.”
12. Section 29 of the 1971 Act is relevant to the issue of “disease”. It states:
“(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 of that 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;
(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 of 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.”
13. Section 124 of the Safety, Rehabilitation and Compensation Act 1988 in effect states that a person is entitled to compensation under that Act if the person had suffered an injury loss or damage in respect of which compensation would have been payable to the person under the 1971 Act.
Evidence
14. Mr Perry was self-employed as a panel beater in 1976. He had three employees and the business was flourishing. He denied any emotional and behavioural problems prior to the accident on 3 April 1976 (“the accident”). Prior to the accident, he participated in a search party and found the body of his landlord, Bill Falks, whose boat had overturned and was lost at sea. Rats and crabs were attached to the body. The applicant formally identified him at the morgue. Although he found the event unpleasant, he did not have any unusual reaction and he did not need to consult a doctor.
15. Mr Perry disagreed that he was withdrawn, preoccupied and broody a couple of months before the accident.. He related well to his fellow soldiers and described himself as very sociable. Prior to the accident he was involved in the development of a block of units that had received development approval and had engaged an architect to prepare plans.
16. In respect to the accident, he recalled exiting the jeep for the purpose of relieving himself, then slipping. He also recalled being transferred from an Army ambulance to a hospital ambulance and being transported to hospital. He could not recall anything further. He first consulted Dr Petroff 10 days after the accident. He continued to consult him until 2001, when he commenced consulting Dr Persley. A couple of years ago he began to “shake” in similar manner to those suffering from Parkinson’s Disease. Consequently, his medication was changed which relieved the problem with shaking.
17. Since the accident he has been able to perform only very limited physical work. He referred to “touching up a couple of cars with tins of paint”.. His panel beating business ceased shortly after the accident. He could not recall whether he told Dr Petroff at about that time that he was “working hard”. He acknowledged that in November of 1978 he mowed lawns.
18. He had considerable difficulties with his memory, and was unable to recall when he was first hospitalised for schizophrenia. He did not recall consulting a solicitor at the Legal Aid Office (exhibit 2 refers). He had described the accident to Dr Hayter, who then arranged to for the provision of his Army records. Dr Hayter encouraged him to consult a solicitor, which led to his lodging a claim. He could not recall any previous discussions with a solicitor, although he was aware that his wife had spoken to someone. He also discussed the prospect of a claim with Dr Petroff.
19. Mrs June Perry had provided a statement, which was marked as Exhibit 3. In that document, Mrs Perry described the family situation prior to the accident and subsequent events. She also made observations about the symptoms of her husband’s illness and its effect on family life. She did not recall advising Dr Petroff shortly after the accident that her husband had been withdrawn, broody and preoccupied prior to the accident, although she considered that he was under stress due to frustration with the development application which involved protracted dealings with the local Council. She said that sometimes he would be “grumpy”. She could not recall noticing any behavioural changes but even if they were present, it did not affect his ability to “carry on as normal”.
20. She described her husband as “hard working” and “community minded” before 1976. The death of Bill Faulks caused considerable shock in the community and her husband’s reaction was no different than that of others who had known him.
21. She recalled contemplating a claim for compensation for her husband in 1989, however nothing eventuated. Dr Hayter suggested that her husband lodge an application after he had been treating him for a while.
22. Her husband had consulted general practitioners Dr McLeod, Dr Young and more recently Dr Hayter. She was not sure when Dr McLeod had ceased practicing medicine, but she thought it was sometime in the 1980’s. The change of psychiatrist from Dr Petroff to Dr Persley was due to dissatisfaction with the treatment that her husband was receiving from Dr Petroff. The prospect of lodging a claim was raised with Dr Petroff who made the comment: “Don’t fight the army. You will never win”. Since commencing treatment with Dr Persley, she considered that her husband was less aggressive and more controlled.
23. Although her husband performed some work after the accident, he needed someone to work with him. She considered that in the years following the accident, her husband’s income from his work efforts was best described as “pocket money”. No records are available of the amount of income he earned before the accident or thereafter.
24. In the early years of his illness, she accompanied her husband to consultations with Dr Petroff. She did not recall telling Dr Petroff in November of 1978 that her husband was carrying out his normal business. She acknowledged that by December of 1978 the applicant might have been doing some work, which he continued on an ad hoc basis until he was hospitalised in 1979. At one stage he was selling World Book Encyclopaedia, although he was not able to work for a full day. He would leave for work mid morning, come home for lunch, lie down and then go back to work.
25. Between 1976 and the present there had been very short periods when her husband’s health improved, then it deteriorated. His alcohol usage has escalated. Between 1995 and 1997 her husband was in a very poor state, and they separated. His condition improved in 1997 after a change in medication. She accompanied her husband to consultations with Dr Hayter and she could not recall providing a history of her husband’s health, nor could she remember the history she gave to Dr Petroff.
26. Dr Gary Persley, psychiatrist had provided two reports, dated 10 September 2001 and 14 November 2001. He was of the view that the applicant was genetically pre-disposed to schizophrenia. He considered that Mr Perry exhibited paranoid delusions whilst in hospital, including a belief, expressed to his wife, that the Army was trying to poison him.
27. Dr Persley’s understanding was that from 1976 to 1995 Mr Perry had been on continuous treatment with anti-psychotic medication. Dr Petroff diagnosed the condition within days of the applicant being discharged from Singleton Hospital. The applicant’s overuse of alcohol was a means of helping him cope with his situation. He suffered a significant deterioration in his condition in 1997, after a period of 2 ½ years of non-medication.
28. He considered that whilst at Singleton Hospital, Mr Perry was clearly experiencing paranoid delusions and behaving inappropriately. He was prescribed barbiturates for sedation, which in his opinion was inappropriate treatment. The appropriate treatment would have been anti-psychotic medication.
29. Dr Persley was aware that Dr Petroff had referred to Mrs Perry’s description of her husband prior to the accident of “broody, withdrawn and preoccupied”, in forming the view that those signs could have been a prodrome for schizophrenia. However, he considered such behaviour was equally explicable by the applicant’s concerns with work, the finding of Bill Falk’s body and his legal battles with Council.
30. A more specific prodrome for schizophrenia would be the presence of odd behaviour, which was not reported to Dr Persley by either Mrs Perry or a number of friends. He concluded that whilst the applicant’s schizophrenia was not caused by events at the Army Reserve camp, it “can be argued that these events accelerated the onset of his condition”. He had read Dr Petroff’s report as well as Dr Petroff’s clinical notes, however he relied significantly on the notes from Singleton Hospital in order to form his own view of what had transpired.
31. He expressed the view that it is probable that the event including the subsequent transportation by ambulance to hospital and the administration of Pethidine was a triggering event for its development. Pethidine is known to cause hallucinations and schizophrenia can be triggered by narcotic preparations acting on the central nervous system.
32. Dr Persley considered that the applicant would have developed the condition at any time up until he reached his early 40’s, due to the strong family history of schizophrenia. However, such a prediction is imprecise. At some point the impact of the accident and its aftermath disappeared, but the illness continued. He considered that the maximum time the applicant would have been symptom free would be two years. When asked to clarify this aspect, he concluded in his second (supplementary) report (E5):
“If asked to make an arbitrary estimate based on theoretical hypotheses, but tempered by realistic appraisal my opinion would be in the order of 12 to 18 months.”
33. Dr Parsley had regard to the fact that the applicant suffered decompensation again in 1979, by which time, or at some earlier period, the affects of the incident in 1976 had been spent. In other words, by a period of about two years after the accident, the applicant’s schizophrenia “had a life of its own”:
34. Robert Holburn, retired semi trailer driver from Ballina first met the applicant in 1962 and described him as a good friend who was very genuine. Although he had a few drinks with the applicant after work, he described him as a “petty normal, drinker” before 1976. Bill Falks died on 15 September 1975 and the applicant’s reaction to that loss was similar to others in the community. He did not notice any unusual reaction in the applicant after he found Bills’ body.
35. After the accident the applicant underwent a personality change and his consumption of alcohol increased. He had difficulty communicating to his friends, consequently he did not retain some friendships. He could not recall how soon before the Army incident that he had seen the applicant and he was unable to comment as to his emotional and behavioural state in the period immediately prior to the accident. He was one of many people who encouraged the applicant to lodge a claim for compensation as a result of his Army service.
36. Dr Igor Petroff, psychiatrist of Lismore, provided two reports dated 12 January 2001 and 12 March 2001. He had treated the applicant since 1976. He had been referred to him by Dr McLeod of Ballina with a letter dated 7 April 1976 stating that:
“Robert Perry’s wife had noticed behavioural change for the previous two months, which appears to have culminated in a delusional psychosis when on a CMF Army Camp last weekend.”
37. Dr Petroff recorded a history given by Mrs Perry of her husband becoming broody withdrawn and preoccupied for several months prior to his final decompensation. He considered that the applicant was showing prodromal symptoms for some months prior to April 1976 and that it was possible that the stress produced by the fall off the truck may have finally produced decompensation into a florid psychosis. He goes on to state:
“It is also possible that, had he not suffered the fall, he may well have avoided slipping into a psychosis even though he had early prodromal symptoms prior to the accident”
38. Dr Petroff considered that there were antecedent stressors including the finding of Bill Falks, the ongoing legal battles with the Council and working too hard.
39. Further, he states:
“Even though Mr Perry was genetically loaded for schizophrenia and displayed prodromal symptoms and was exposed to stressors, he may not have gone on to a full blown psychotic episode had he not fallen from the truck ….”
40. When the respondent sought clarification from Dr Petroff as to whether it is more probable than not, as opposed to possible, that the fall from the truck contributed to the aggravation, acceleration or recurrence of schizophrenia, Dr Petroff responded as follows:
“After considering the case and my report, I must say that it is more probable that Mr Perry’s employment, and in particular the fall in the truck in 19876, did not contribute to the aggravation, acceleration or recurrence of his schizophrenia.”
41. Dr Petroff described his first report as the “most generous interpretation” of the causation issue. Despite the fact that the applicant was in the process of developing his illness, the fall from the truck would have contributed to the symptoms, in the sense of accelerating the illness. His belief that the applicant was distracted at the time of falling from the truck was based on the information provided by his wife as to his distractability in the previous few months, although he accepted that there was no contemporaneous evidence of distractability, other than the fact it was not normal behaviour to fall off a truck. He considered that distractability is one of the key features of schizophrenia.
42. The reference in his report to Mrs Perry describing her husband as broody, withdrawn and preoccupied he thought was obtained directly from her, although on reflection, he may have received that information from Dr McLeod. He had considerable contact with Mrs Perry who certainly contributed to the history he recorded in his notes.
43. Although schizophrenia takes months to develop, and the symptoms were “nearly full blown”, with the advent of Pethidine, the result was immediate. Considering that the applicant’s illness was inevitable he opined that the accident had an impact for less than three months. He considered that broodiness, preoccupation, feeling stressed and irritable were hallmark prodromal symptoms.
44. The reference in his notes in 1977 and 1978 to the applicant working “more” or “quite a bit” or a "lot of work" was history obtained directly from the applicant or his wife. When he first treated Mr Perry, he was of the view he would be able to work and the prognosis was optimistic. However, his mental state deteriorated, with complicating symptoms arising from alcohol abuse. He also considered that the applicant’s father’s death on 21 September 1978 was likely to have had a detrimental affect on his mental health.
45. He no longer treated the applicant as his wife had chosen to seek treatment elsewhere. He denied that the decision to seek treatment elsewhere was attributable to the fact that the applicant was developing Parkinson type symptoms, as, at the time his involvement with the applicant ceased, he had already ceased taking Stelazine, which was known to produce Parkinson type symptoms in some patients.
46. The applicant’s hospitalisation in 1999 was for the purpose of treatment of his delusional state. His medication was ceased in order for him “to have a drug holiday” but the psychotic symptoms continued and he was hospitalised shortly thereafter.
47. He was unable to comment definitely as to the onset of the applicant’s alcoholism, commenting that the applicant's wife was obsessed about alcohol use. He believed the applicant’s consumption was relatively moderate, being confined to a few beers, as a method of coping with stress. He was unable to comment as to whether alcoholism is a significant component of the symptoms, which the applicant now suffers, as he no longer treats him.
48. Dr M Hayter, a general practitioner of 13 years standing, who practices at the Ballina Health Centre, considered that the applicant suffers from schizophrenia and subsequent alcoholism as a result of a fall from an Army jeep (T7). During oral evidence he acknowledged that he relied on information given to him by the applicant and Mrs Perry during the course of their consultations over the past five years. He had also had access to the contemporaneous hospital notes dealing with the applicant’s admission to Singleton hospital.
49. He had read the statement of Mrs Perry which forms exhibit 3. He did not take a history of other stresses in the applicant’s life prior to the accident. He referred to the administration of amibarbitone, which is known to cause psychiatric disturbances including thought disorders.
50. He agreed that the applicant might have been predisposed to the development of schizophrenia however he believed that the incident had some role in triggering its onset. The fact that the applicant may have been withdrawn prior to the incident is not necessarily evidence that he was not functioning at his normal level. He considered it significant that since the incident, the applicant had engaged in a destructive pattern of behaviour that has impacted negatively on his family life and his health.
Submissions
51. For the applicant, it was contended that the applicant has been significantly disabled from his psychiatric conditions of schizophrenia and alcoholism, which rendered him incapable of making any decision in respect to the need to lodge a claim for compensation. Although Mrs Perry made various enquiries at various times, including contact with the Australian Legal Aid Office, the applicant denied any knowledge of this action or any recollection of consulting a solicitor previously to the solicitor involved in the present matter.
52. Despite the absence of evidence from Dr McLeod in respect to the applicant’s pre-injury health, the respondent was able to cross-examine the applicant’s wife in this respect. Additionally, the contemporaneous records of the applicant’s treatment following the accident and the evidence of Dr Petroff, the applicant’s treating specialist ameliorated any issue as to prejudice to the respondent.
53. Even if a measure of prejudice to the respondent existed, there being reasonable cause for the applicant not lodging his claim within the prescribed time, the applicant’s significant loss of entitlement is a significant factor in deciding whether to extend the time limit to lodge a claim.
54. The evidence supports the contention that the applicant sustained a personal injury arising of or in the course of his employment pursuant to section 27 of the Act. In the alternative, the applicant is entitled to compensation on the basis that there was an acceleration or aggravation of his disease under Section 29 of the Act.
55. The applicant contends that he has been totally incapacitated for work from the date of the accident and continues up until the present date.
56. For the respondent, it was submitted that the reference by the applicant to a claim for personal injury pursuant to section 27 of the Act has not been its case either in the original decision or in the application for review. It is not now open for the applicant to so contend.
57. There is no evidence from relevantly qualified witnesses to the effect that the applicant had incapacity from ongoing mental illness to the extent that he was not aware of his rights and no evidence was before the Tribunal which would support a finding that the applicant had reasonable cause for the delay in filing his application.
58. The prejudice to the respondent includes but is not limited to determining what level of compensation would be payable if incapacity is found to be employment related.
59. The absence of evidence from Dr McLeod is significant in determining whether the applicant suffered from a pre-existing condition and whether there was an injury, aggravation or acceleration of a disease which was caused or contributed to by employment, and particularly to as to the period that that employment remained a cause of contribution to the applicant’s incapacity.
60. The absence of any financial records of the applicant's earnings prior to and following the accident effectively means that the only evidence on this aspect is that of the applicant and his wife, whose reliability on that issue is questionable. It would be impossible to calculate what compensation would be payable in the event of a finding that partial incapacity existed, on the basis that there is no material which would enable a calculation to be made of the earnings of the employee before the injury. In those circumstances, the prejudice to the respondent is considerable.
61. The Tribunal should find that the applicant’s claim is precluded by reason of prejudice to the Commonwealth and there is an absence of evidence that of reasonable cause for the delay in making the application.
62. If a finding was made that the applicant has a compensable condition, then such causal connection was temporary, on the basis that there is no evidence that there is a causal connection between any incapacity (if it exists) that the applicant currently suffers, and the accident on 7 April 1976.
Findings and Consideration
63. There is evidence that shortly after the accident on 7 April 1976 the applicant was diagnosed with schizophrenia and shortly thereafter an additional diagnosis of alcohol abuse was provided. I find that a claim for compensation for a “psychiatric injury” is met by those diagnoses. Further, I find that the lodgment of that claim does not meet the time limit requirements set out in section 54(6) of the Act on the basis that the injury or disease, the subject of the claim, had been present for many years before such claim was lodged with the respondent .
64. The issue for consideration then becomes whether the Commonwealth would be prejudiced by reason of the failure, and if so, whether the failure resulted from the causes set out in subsection 54(6)( c) of the Act.
65. Regardless of whether the matter is determined by reference to section 27 of the Act (whether the accident caused a personal injury) or section 29 of the Act (whether the accident was a contributing factor to, or the aggravation, acceleration or recurrence of a disease), the primary prejudice to the respondent lies in the fact that there is no contemporaneous evidence, (other than the referral of Dr McLeod to Dr Petroff) as to the state of the applicant’s pre-accident mental health.
66. It was submitted by the respondent that the Tribunal should not merely rely on the evidence of Mrs Perry as to whether there were previous problems or medical treatment as she could not recall any behavioural changes in her husband in the previous two months, notwithstanding that Dr McLeod had referred to symptoms which she had described. There is sufficient evidence for the Tribunal to find that there were behavioural changes of some degree prior to the accident, and that Mrs Perry is mistaken in stating otherwise.
67. The Tribunal was mindful of the submissions of the respondent that it is the absence of material, and in particular evidence and/or notes from Dr McLeod relative to the period immediately prior to the accident which is critical in terms of determining the extent, if any, of the employment contribution towards the onset, acceleration or aggravation of schizophrenia.
68. It is helpful to consider the material that is available. Firstly, there are the hospital notes recording the applicant’s response to the accident, the symptoms he exhibited and the treatment given. Secondly, the applicant's treating psychiatrist was given a letter of referral from Dr McLeod dated 7 April 1976, some three days after the incident, in which he reported the applicant's mental status leading up to the time of the incident, which it seems was compromised, but there is no suggestion that the applicant was likely to already be suffering from a diagnosable psychiatric condition.
69. Thirdly, the Tribunal has the benefit of information from Dr Petroff who treated the applicant for over 30 years. Both Dr Petroff and Dr Persley have expressed an opinion as to the possible interpretations to be placed on the symptoms described by Dr McLeod. It is reasonable to assume that Dr McLeod's letter of referral contained all relevant information as to the applicant's mental state prior to the accident. It is difficult to predict whether his evidence or the availability of his notes would cast any further light on this aspect. Ultimately, two psychiatrists have given evidence on their interpretation as to the significance of the applicant's pre-accident symptoms. What Dr McLeod might have been able to provide by way of further relevant material is in the realms of speculation.
70. Potentially of a more prejudicial nature to the respondent is the lack of any direct evidence in respect to the applicant’s pre-accident remuneration and thereafter. The Tribunal notes the references in Dr Petroff’s notes to the applicant working “hard” or “pretty hard” and it accepts that such terms are subjective and hard to qualify. There is evidence that the applicant performed some work after the accident, the extent of which is not capable of determination. The matter is further complicated by the fact that the respondent is not now able to investigate whether the applicant retained a capacity to work and that his incapacity for work was only partial. Again, it was argued that the evidence on this aspect was that of Mrs Perry, and Mr Perry was unreliable, in particular given that Mrs Perry’s statement made little mention of her husband working after the accident.
71. The Tribunal acknowledges that there is some merit in the respondent’s contention in regard to the difficulties that would be encountered if it reached the point where it had to determine the level of compensation payable. This is particularly so if partial incapacity was to be found. However, whilst accepting this is a hurdle, it is not insurmountable nor is the absence of contemporaneous records of income such a cause of prejudice to the respondent that it could not be overcome by adopting a practical approach, having regard to the average weekly wage at that time and other indicators of what might be reasonable.
72. In view of all of the foregoing, I find that the argument that the respondent would suffer prejudice is not sustainable. The only possible prejudice to the respondent is that Dr McLeod may have been able to contribute more than the information contained in his report. In the Tribunal's view this is mere speculation.
73. As to whether there is a reasonable cause for the applicant's failure to lodge a claim within the required time, there is an abundance of evidence to support the finding that the applicant's mental state has fluctuated over the years. Despite the fact that his wife made several attempts to take some action for compensation on his behalf, this has not come to fruition. The Tribunal had regard to the fact that in 1977 a claim was contemplated. However, it is clear that Mrs Perry instigated the inquiry with Legal Aid.
74. As to whether the applicant identified a reason for his inaction, it is apparent from the medical evidence and having regard to the history obtained through the applicant, his wife and that of his treating psychiatrist, that the state of the applicant’s health rendered him incapable of lodging a claim. He has been significantly disabled from schizophrenia, alcoholism and depression.
75. The absence of recollections of previous considerations of lodging such a claim, whilst not supporting a finding that he had no involvement in such considerations, does support the general picture that the applicant was a person who was unable to instigate, instruct and focus on a range of processes sufficient to enable his claim to have reached the stage of lodgment. Indeed, had it not been for the assistance and encouragement of Dr Hayter, who obtained the applicant’s service records, it may well be the case that a claim would still not have been lodged.
76. The Tribunal is reasonably satisfied that a reasonable cause existed for the applicant’s failure to lodge a claim within the time stipulated.
77. Turning then to the substantive issue, the applicant contended, in seeking review of the decision, that the applicant suffered an aggravation or acceleration of a disease pursuant to section 29(1)(a) of the Act. In written submissions, the applicant contended that he sustained a personal injury arising out of in the course of his employment pursuant to section 27 of the Act, that injury being an injury to the right shoulder, and that the injury itself and the consequences caused the manifestation of schizophrenia and chronic alcoholism.
78. In the alternative, the applicant relied on the requirements of section 29 being fulfilled. Whilst it was urged upon the Tribunal to disregard the part of the applicant’s submissions in relation to personal injury pursuant to section 27, I decline to do so. It was made clear during the course of the evidence that the applicant sought to connect the applicant’s incapacity through his employment either by the way of injury to the shoulder and its aftermath as directly causative or on the basis that the disease was accelerated by virtue of his employment. In any event, when making the final determination as to whether such incapacity was employment related either by direct causation (an injury) or by acceleration or aggravation, (a disease) much the same considerations apply. In Casarotto v Australian PostalCommission (1989) 86 ALR 399, at 402 Hill J stated that the Tribunal was not limited in its review to a consideration of the original claim, confined as it was to a claim for aggravation and that it had a duty to consider whether an employee claiming compensation should be compensated for the acceleration of the disease. Similar considerations apply in determining whether compensation is appropriate under either section 27 or section 29 of the Act.
78. The evidence is clear that the applicant would have developed schizophrenia irrespective of the accident. Both Drs Petroff and Dr Persley hold this view. Dr Petroff opined that the applicant was in the prodromal phase of the illness, in other words the behavioural changes observed in him were premonitory symptoms or a precursor. He made the comment that the applicant was “on his way to becoming schizophrenic”, however the Tribunal did not understand him to be saying that the applicant could reasonably have been diagnosed to have been suffering from schizophrenia before the accident.
79. If Dr Petroff is to be understood as saying that the applicant was schizophrenic before the accident, then the Tribunal would not be persuaded that this view should prevail, given that his opinion on this aspect is an interpretation of symptoms described after the accident, and does not place him in a better position than Dr Persley to form such an opinion. The respondent urged the Tribunal to give more weight to the opinions of Dr Petroff on the basis that he had the more contemporaneous knowledge of events and subsequent circumstances. It was said that the risk of interpretation errors by Dr Persley was great, given that he had not examined the applicant for more than 20 years after the accident. However, Dr Petroff’s views were also based on information provided by others. The reference to prodromal symptoms and his view that the accident brought on the more florid symptoms of schizophrenia is in keeping with a view that if liability exists, it relies on the acceleration provisions in section 29 of the Act.
80. There was evidence that the applicant had undergone a number of stressful events, in particular his involvement in finding the body of Mr Falks and the pressures of business. There were various views as to what effect this had on the applicant’s mental wellbeing. The incontrovertible evidence is that Mr Perry was not diagnosed as suffering from schizophrenia until after the accident on 7 April 2004. Whilst he was susceptible to its development, the evidence is that whatever his mental state prior to that time, (and one would have thought that he would not have been permitted to have participated in training if he was exhibiting symptoms which would enable a clinician to diagnose schizophrenia), a diagnosis was not made until after the accident.
81. In his earlier report, Dr Petroff stated:
“….without the incident at the army camp, the fall and the dramatics surrounding it added to the severity of his initial decompensation and produced a degree of deterioration that led to subsequent severe decline.”
82. If Dr Petroff is implying that the “initial decompensation” occurred prior to the accident then he is placing considerable reliance on the description of symptoms provided by Dr McLeod and possibly Mrs Perry to make such a finding. As stated earlier, there is no evidence of the full range of symptoms which would enable a clinician to diagnose schizophrenia prior to the time that it was made by Dr Petroff.
83. The Tribunal was also mindful of the comment made by Dr Petroff in his first report that the “fall off the truck may have been the final precipitant”.. Further, it notes his statement in the second report that he considered it is more probable that the fall did not contribute to the aggravation, acceleration or recurrence of schizophrenia. However, during oral evidence he used terms such as “closer to zip” and “small contributing factor”. He considered that if the applicant’s schizophrenia had not manifested itself following the accident, he may have “ambled on for a while”.. It is clear from that comment and from others that despite his last opinion, he holds the view that there was a causative link between the accident and the acceleration of the disease, in other words his employment was a contributing factor.
85. The Tribunal finds that the claim succeeds under section 29 of the Act on the basis of acceleration, which…. “probably presupposes a progressive disease, one that, running its ordinary course increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end not being ordinarily susceptible of being permanently arrested but susceptible of being hastened by external stimuli” (Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593, citing Federal Broom Co Pty Ltd v Semlitch (1964) 100 CLR 626. Adopting this rationale, the applicant’s schizophrenia, whilst not being capable of being arrested, was hastened by the external stimuli of the accident and its aftermath.
86. The view was held by Dr Persley that the medication given to the applicant was inappropriate and this was also implicated in the onset of the applicant’s disability. The respondent contended that it was arguable whether the failure by the hospital to treat the applicant appropriately, and the extent, if any which that contributed to the condition, was properly regarded as forming form part of the applicant’s employment, relying on Johnson v Commonwealth (1982) 43 ALR 599.
87. In Johnson the High Court concluded that failure by a military hospital to diagnose a Navy serviceman with cancer was a failure that occurred in the course of employment. The respondent sought to distinguish this case from the present facts on the basis that the applicant was treated at a non-military hospital. However, given that the choice of hospital was made by the relevant Army personnel exercising their duty of care in ensuring that the applicant received appropriate treatment, the distinction may not be one which can properly be drawn. Even if this is not the case, the trauma of the fall, the ambulance trip and the pethidine injection produced paranoid delusions, irrespective of any other treatment. Whilst Dr Persley expressed the view that the lack of appropriate treatment accelerated the initial episode, the Tribunal interpreted him to be saying that the symptoms would not have been as severe nor as protracted if timely and appropriate treatment had been given. However, it did not understand him to be saying that the “episode” would never have occurred.
88. The issue then becomes whether the accident continued as a contributing factor to the presence of schizophrenia. Dr Petroff’s most generous view was that the 1976 accident ceased to contribute to the applicant’s condition within a period of months or a couple of years at the most. Dr Persley stated that the effect of the 1976 accident had disappeared within a 12 month to 18-month time frame. He was of the view that the 1979 episode was unrelated to the 1976 incident. There is no support for the applicant’s contention that the incapacity caused by the 1976 incident has continued until the present time. The Tribunal was mindful of the principles enunciated in Casarotto which require examination of the medical evidence to ascertain whether the employment related effects were finite or ceased after a period of time.
89. There is no support for any contention that the Army accident had any effect upon or contribution towards the applicant’s schizophrenia and alcoholism beyond a period of two years. The Tribunal finds that a period of liability for two years is appropriate, taking into account the opinions of both specialists.
90. As to the extent of incapacity, much was made of the statements made by the applicant and his wife to Dr Petroff that he was working hard or other similar terms. It was urged upon the Tribunal to reject Mrs Perry’s evidence in relation to her husband’s work in the years following the accident as it is inconsistent with Dr Petroff’s contemporaneous notes and that Mrs Perry’s statement made scant mention of any employment.
91. The Tribunal was mindful of the fact that the reference to “working hard” is one that may well have been a term used by the applicant, rather than Mrs Perry. It may also have been the case that the applicant’s use of that term was not necessarily reflected in the level of income he derived for his efforts or that it demonstrated he was indeed capable of much productive work at all.
92. The Tribunal is not inclined to reject Mrs Perry’s evidence which was to the effect that whilst her husband may have attempted some work and at times derived some income from his efforts, the amounts that he earned were meagre. He also required supervision and frequent breaks. The Tribunal accepts Mrs Perry’s evidence that whilst her husband attempted a number of tasks, including minor panel beating jobs, and selling encyclopaedias, none were regarded as providing a level of income commensurate with that which he was capable of, and was earning prior to the accident.
93. However, the evidence is such that it is not the case that the applicant had total incapacity for work, in light of the fact that Dr Petroff understood that at some period the applicant earned sufficient income to make him ineligible for social security benefits. That, coupled with Mrs Perry’s evidence that her husband was capable of some work, leads the Tribunal to the view that such incapacity was partial, to a degree of 80 per cent. This assessment takes into account the evidence of Mrs Perry that the applicant had an erratic work performance, and the evidence of Dr Petroff that he believed the applicant was working at various times. The Tribunal finds that the combination of that evidence is commensurate with a capacity for work of one day a week.
94. The decision under review is set aside and in its place is substituted the decision that the applicant has an entitlement to compensation for partial incapacity for work for a period of two years from the date of the accident.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 3 and 4 March 2003
Date of Decision 19 March 2004Counsel for the Applicant Mr T Willis
Solicitor for the Applicant Somerville Laundry Lomax
Counsel for the Respondent Mr G O’Sullivan
Solicitor for the Respondent Dibbs Barker Gosling
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