Pisani and Comcare
[2004] AATA 441
•6 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 441
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/658
GENERAL ADMINISTRATIVE DIVISION ) Re VICTOR PISANI Applicant
And
COMCARE
Respondent
DECISION
Tribunal MR S. WEBB, MEMBER Date6 May 2004
PlaceSydney
Decision The decision under review is set aside.
[Sgd] Mr S. Webb, Member
CATCHWORDS
COMPENSATION - injury – cease liability - work related stress - reactive depression - obsessive compulsive personality style – no jurisdiction to consider whether personality style is an injury or disease under the Act - medical treatment expenses – no claim before Tribunal concerning specific compensation payments – current symptoms not related to accepted condition - reactive depression in remission – liability for injury continues - decision set aside
Safety, Rehabilitation and Compensation Act 1988 s 4, 14, 16, 17, 19, 24, 60, 62
Administrative Appeals Tribunal Act 1975 s 25, 43
Comcare v Burton & Lees (1988) 157 ALR 522
Lees v Comcare (1999) 56 ALD 84
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Plumb v Comcare (1992) 39 FCR 236
Rosillo v Telstra Corporation Limited [2003] FCA1628
The Queen v Falconer (1990) 171 CLR 30
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
6 May 2004 MR S. WEBB, MEMBER 1. In this application Mr Pisani disputes Comcare’s determination dated 28 January 2003 that “…we are no longer liable to pay compensation for your [Reactive Depression] claim” (T65). That determination was reconsidered at Mr Pisani’s request and affirmed in a reviewable decision dated 15 April 2003 (T74). Mr Pisani seeks review of that reviewable decision.
2. The matter came on for hearing in Sydney. Mr Pisani represented himself and Mr Kelly of counsel represented Comcare. Documents were taken into evidence and labelled. Mr Pisani and Dr Skinner gave oral evidence at the hearing.
factual context
3. The following material facts arise from the evidence before the Tribunal and are not in serious dispute.
4. Mr Pisani was born on 14 April 1935. He married in 1963 and currently resides with his wife, with whom he has three (adult) children.
5. Mr Pisani was employed by the Post Master General’s Department from 1968 to 1984 in which year his employment by the Australian Taxation Office (“ATO”) commenced. Mr Pisani resigned from his employment with the ATO on 4 August 1995. He has not been in remunerative employment since that date.
6. As this case is essentially concerned with medical evidence it is relevant to set out, in brief summary, a chronology of events with reference to Mr Pisani’s various claims for compensation payments and related determinations, as well as relevant medical reports.
7. In 1994 Mr Pisani was in the employment of the ATO at the Administrative Service Officer grade 2 level. On 2 November 1994 he lodged a claim for compensation in relation to (T5, folio 11):
“Pressure of work; causing nervous stress, associated with visual problems (glaucoma).”
8. In an undated report (T4, folio 8) Dr K-Y Chee, treating psychiatrist, offered the following opinion:
“Mr Pisani has a Reactive Depression and Anxiety State (Adjustment Disorder with Depressed and Anxious Mood, DSM IIIR) which has clearly resulted from the stresses that he has been placed under in his working environment…”
9. On 30 November 1994, Mr D. Green, psychologist, reported (T6, folio 18):
“It is my opinion that Mr Pisani is suffering from significant anxiety and depression… In the absence of any other cause I can only attribute Mr Pisani’s symptoms to his conditions at work.”
10. On 2 December 1994, Dr R. Lewin, consultant psychiatrist, reported (T7 folio 24):
“The primary diagnosis is a Compulsive Personality Disorder. Mr Pisani appears to recently have experienced a decompensation into a reactive depression. The anxiety symptoms appear to be part of that syndrome… The most likely explanation in this case is that his anxiety symptoms are part of a depressive syndrome…
Mr Pisani has developed a depressive reaction of mild to moderate severity…
It is my opinion that work related factors played at least some part in the onset of Mr Pisani’s current difficulties.”
11. On 8 December 1994, Ms S. Tanner, consultant psychologist, reported (T8 folio 31):
“At the time of the assessment, although presenting with some symptoms of anxiety Mr Pisani did not warrant a diagnosis of an anxiety disorder or a depressive illness.
…
On the basis of my assessment and various [workplace] discussions, I do not believe that Mr Pisani’s current health problems are workplaced [sic] based but rather are due to personality factors…”
12. On 3 March 1995, in a reviewable decision, liability was accepted for Mr Pisani’s “Reactive Depression” and 4 October 1994 was deemed to be the date of injury.
13. On 7 August 1996, Mr Pisani lodged a claim for compensation for permanent impairment (T20, folio 49). In that claim Dr M. Simpson, general practitioner, diagnosed:
“Reactive Depression and Anxiety State, Adjustment disorder and depressed and anxious mood.”
Dr Simpson described Mr Pisani’s claimed impairments as follows (T20, folio 50):
“Impaired interpersonal relationships, sleep disturbance, headache, loss of employment.”
14. On 18 October 1996, Dr R. Lewin reported (T21, folio 56):
1.The primary diagnosis is Compulsive Personality Disorder. This has been complicated by the development of a syndrome of reactive depression and anxiety.
2.It is possible that this condition is still attributable to his former employment. On the other hand, the likely weight of causation tends more and more to current circumstances in the context of this diagnosis. It is possible that work related factors are still related but this will diminish further with the passage of time.
…
5. …His condition is not considered permanent. He has reactive symptoms which I expect will, in the usual course of events, gradually resolve with the passage of time.”
15. On 11 December 1996 a Review Officer affirmed a prior determination to reject Mr Pisani’s claim for compensation in respect of permanent impairment (T23).
16. On 27 March 1997, Dr Chee reported (T27 folios 69-70):
“Having seen Mr Pisani over a period of more than two years now, and noting his continuing symptoms, I am concerned that his symptoms are chronic and permanent. He has had high doses of 2 antidepressants (Moclobemide and Paroxetine) and supportive psychotherapy as well as anxiety management. He remains impaired at a level of 30%.”
17. On 17 April 1997, the Respondent determined by reviewable decision to vary the primary determination concerning Mr Pisani’s claim for permanent impairment compensation with the effect that (T28 folio 71):
“Mr Pisani suffers a 10% permanent impairment, and accordingly compensation is payable…”
In consequence Mr Pisani was paid an amount of compensation for permanent impairment and non-economic loss arising from his accepted compensable condition of Reactive Depression.
18. On 24 February 1998, Dr W. Kloosman, general practitioner, reported (T29):
“…Mr Pisani is suffering from an anxiety depressive state brought about by chronic work-related stress in his previous place of employment.
… As part of his stress syndrome the patient has also contracted a chronic fibro-muscular dysfunction of the posterior neck muscles, extending into the shoulder muscles bilaterally, while also affecting the elevator muscles of the shoulder blades and the paraspinal muscles in the thoracic area. Also, as an associated condition, the patient suffers severe tension headaches.
…
…I am of the opinion that continuing physiotherapy be provided on a twice weekly basis.
…
It is certain that Mr Pisani will also benefit from further psychiatric counselling, although this aspect of his treatment has for the present not been addressed.”
19. On 1 April 1998, Mr Pisani lodged a claim for permanent impairment (T30) stating:
“Consistent headaches – intermittent sleepless nights – neck mascular (sic) dysfunction – nervousness associated with loss of temper, more indicative with wife; and other people if they contradict me (including Comcare) top of the list.”
In that claim Dr W Kloosman diagnosed (T30, folio 76):
“Chronic fibromuscular dysfunction cervical muscles with underlying cervical disc degenerative disease and nerve root … narrowing …”
Dr Kloosman recorded the following impairments:
“Neck pain, Headaches, Depression”
Dr Kloosman indicated that the impairments will deteriorate and active treatment had not been completed, recommending “continuing physiotherapy and non-steroidal anti-inflammatory agents and antidepressants”.
20. On 14 May 1998 Dr Y. Skinner reported (T38, folios 93-94):
“1. I do not think that Mr Pisani is suffering from a psychiatric condition at present. He does have some symptoms of anxiety and complains of difficulty with control of his aggressive impulses. It appears that his condition is adequately treated with the present management and medication prescribed by Dr Chee.
2. His current psychological condition is not related to his employment at the Taxation Office.
3. 10% permanent impairment (as assessed in April 1997).
…
6. The degree of permanent impairment was reached on 4 August 1995.
7. At present Mr Pisani’s psychological condition is stable with appropriate treatment by Dr Chee. It is possible that his psychological condition will deteriorate over time if he suffers deterioration of vision or aggravation of his arthritic condition.”
21. On 15 June 1998, a Review Officer issued a reviewable decision affirming a primary determination to reject Mr Pisani’s claim in relation to physiotherapy expenses, concluding (T42 folio 99):
“… The injury that you suffer from and which has been accepted by Comcare is “reactive depression” and I can see no link between your alleged psychiatric condition and physiotherapy or aromatherapy treatment. It would appear that your neck pain relates directly to your severe degenerative problems cervical spine [sic] and has no causal relationship whatsoever to your employment with the Australian Taxation Office.”
22. On 19 June 1998, Dr Chee reported (T44 folio 103):
“My opinion remains that Mr Pisani continues to suffer from a Reactive Depression with prominent associated anxiety and irritability. His symptoms while clearly improved to January 1995, continue to persist at a partially controlled level. These symptoms have a clear continuity from his work-related stressors.”
23. On 12 April 2000, Dr Chee certified (T49):
“…Mr Pisani suffers from Major Depression and he has been changed from Fluvoxamine (Luvox) to Venlafoxine…”
24. On 30 October 2002, Dr Lewin reported (T51 folios 118-119):
“… Mr Pisani has a lifelong vulnerability of personality and I considered this to be a Personality Disorder. I noted the opinion of Dr Chee in this regard.
Mr Pisani has some intermittent symptoms of anxiety and depression. Those who have a personality type such as that of Mr Pisani commonly experience irritation, frustration when kept waiting and similar low-grade symptoms. These symptoms are not sufficiently severe or continuous to justify the diagnosis of any psychiatric condition. I did not diagnose any current Depressive Disorder. I noted particularly that objective signs (clinical features which are independent of the history reported to me) were absent. There were no signs of melancholia, anhedonia or vegetative depression. Mr Pisani continues to take antidepressant medication on a daily basis. He has been seening [sic] the treating psychiatrist infrequently, perhaps three or four times per year. His previous problem has clearly gone into remission. I see no connection between Mr Pisani’s earlier reported difficulties in the workplace and his current reported symptoms. His current symptoms arise as part of the normal and expected response to the underlying personality problem.”
25. Following a review of Mr Pisani’s compensation claim concerning Reactive Depression, a delegate of the Respondent wrote to Mr Pisani on 25 November 2002, stating (T52, folio 123):
“… I am not satisfied that liability in relation to your claim continues nor that your current condition is related to your Commonwealth employment.
Before a determination to cease liability is made, you can present further evidence in support of your claim…”
26. On 8 December 2002, Dr Chee reported (T58):
“[Mr Pisani] has a Reactive Depressive illness, now chronic in its course, with symptoms of an irritable, depressed, agitated and at times anxious mood, and over the years, has had trials of several antidepressants as well as supportive psychotherapy. He is currently on Venlafaxine 112.5mg per day, which has proved the most effective. Despite this he remains symptomatic.
… Prior to 1994 he tended to be a patient, tolerant man in contrast to the irritable, brittle mood he now experiences… He had never had any psychiatric contact before 1994.”
27. Mr Pisani ceased consulting Dr Chee after December 2002 and has not, subsequently, sought treatment by a psychologist or a psychiatrist. However, Mr Pisani continues to take antidepressant medication by prescription of his general practitioner.
28. On 28 January 2003 a delegate, of the Respondent determined that (T65 folio 140):
“…on and from 28/1/2003, [Comcare is] no longer liable to pay compensation for your [reactive depression] claim under any provision of the Act.”
29. In a reviewable decision, dated 15 April 2003, a Review Officer decided (T74 folio 159):
“To the extent that the determination of 28 January 2003 found that there was no ongoing liability for the employee’s claim in general and specifically for medical treatment expenses and further compensation for permanent impairment, I agree with that decision.
Having regard to the employee’s compensation file and the provisions of the Safety, Rehabilitation and Compensation Act 1988, I affirm the determination dated 28 January 2003.”
30. On 20 November 2003, Dr Skinner reported (Exhibit R1, pp 7-8):
“Mr Pisani is presently not suffering from a psychiatric illness or emotional disorder. He has an underlying intensly obsessional personality style, as other psychiatrists and psychologists have noted. He is perfectionistic, punctual, reliable and controlling. He is preoccupied with details, rules order and organization to the point that flexibility and efficiency is lost. He is inflexible and expects others to behave according to his ideas of rules and morals. He does not complain of symptoms of an anxiety disorder or a depressive disorder, and does not display signs of a psychiatric disorder.
Personality structure is constitutional… The personality characteristics described are not caused by Mr Pisani’s employment at the Taxation Office but by constitutional factors and early development influences. However, it does seem that these personality characteristics were observed to be more prominent at the Taxation Office in 1994 when he was placed in an environment where he had to interact with supervisors who wanted him to make some changes in his work practice…
Mr Pisani’s principal complaint at present is his irritability and intolerance…
Mr Pisani is taking a low dose of anti-depressant medication, which he reports has a calming effect. I believe the medication could be withdrawn without and significant change in Mr Pisani’s anxiety levels. If he wishes to continue taking the medication, it is appropriate for his general practitioner to issue prescriptions.”
legal principles
31. Mr Pisani’s application rises for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).
32. Under s.14 of the SRC Act, Comcare is liable to pay compensation to an employee who suffers an injury (s.4) that results in death (s.17), incapacity for work (s.19) or permanent impairment (s.24). Comcare is also liable to pay compensation for reasonable medical treatment costs in respect of the injury (s.16).
issues
33. The issues raised in this matter are whether Mr Pisani continues to suffer from an injury or a disease for the purposes of the SRC Act, specifically Reactive Depression or the effects thereof and, in consequence, whether Comcare is liable to pay him compensation.
34. A preliminary issue arises concerning the scope of the reviewable decision and the matters on foot before this Tribunal.
summary findings
35. Having carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation, I find as follows.
36. It is not in dispute in these proceedings that Mr Pisani suffered a mental injury in the form of “Reactive Depression” in the course of his employment with the ATO for which liability was accepted on 3 March 1995. The date of the injury was deemed to be 4 October 1994.
37. On the balance of probabilities, Mr Pisani’s current symptoms are not attributable to his work-related injury. He does not presently suffer from the effects of “Reactive Depression”, that condition having “gone into remission” (T51 folio 119) prior to 28 January 2003.
38. Mr Pisani has an obsessive compulsive personality style that is vulnerable to psychological stress. Mr Pisani’s current symptoms of irritability, anxiety and intolerance are not related to his previous Reactive Depression but are related to his personality style and current stressors that affect him.
39. To the extent that the reviewable decision attempted to cease liability “in general” and bar any future claims by Mr Pisani the decision-maker acted beyond power.
40. There are no claims for specific payments of compensation before this Tribunal. Mr Pisani did not seek review by this Tribunal of Comcare’s June 1998 reviewable decision to deny his claim for medical treatment expenses (physiotherapy) and additional permanent impairment. No subsequent decisions to deny Mr Pisani’s claims for medical treatment expenses (pharmaceutical treatments) or other compensation payments are before this Tribunal. Comcare must address any such claim in the future as and when it arises and on the merits at that time.
decision
41. In so far as the decision under review purports to deny liability for any future claim by Mr Pisani in relation to “Reactive Depression” it must be set aside.
42. There is no decision this Tribunal can make in substitution. Even though Comcare’s liability to pay compensation in relation to Mr Pisani’s injury under the SRC Act has been satisfied by payment of specific compensation and Mr Pisani’s Reactive Depression has gone into remission, liability in relation to that injury is not extinguished under the Act.
reasons for the decision
43. Making this decision I have carefully considered the whole of the evidence and the issues raised by the parties in submissions and in documents placed before the Tribunal. I have had regard to the relevant legislation and case law.
reviewable decision
44. In the Respondent’s submission the Tribunal’s jurisdiction in this matter is enlivened by Mr Pisani’s application for review of the reviewable decision dated 15 April 2003 (T74). That reviewable decision arose from reconsideration (s.62) of a primary determination (s.60) dated 28 January 2003. However, neither the primary determination (T65) nor a preliminary letter to Mr Pisani (T52) make reference to any particular section of the SRC Act under which that determination is purportedly made. It appears that the determination and the reviewable decision purport to cease all liability in Comcare to pay compensation to Mr Pisani under any provision of the SRC Act.
45. The Tribunal’s jurisdiction in this context is conferred by s.25(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and s.64(1)(a) of the SRC Act and is limited to review of a “reviewable decision”. “Reviewable decision” is defined at s.60 of the SRC Act to mean a reconsideration of a “determination” by Comcare pursuant to s62(1) or (2). For the purpose of Part VI of the SRC Act concerning reconsideration and review of decisions, “determination” is defined to mean a determination, decision or requirement made under specific sections of the SRC Act (s.60). As Finn J observed in Comcare v Burton & Lees (1998) 157 ALR 522 at p.5:
“[A]pplication can only be made to the tribunal to review a decision made under the Act (a) if the decision itself was made under a section that can give rise to a s60 “determination”; and (b) that decision has been reconsidered so as to constitute a s62 “reviewable decision”’.”
46. In this case the determination in question dated 28 January 2003 was not expressly made under a particular section of the Act (T65, folio 140):
“Therefore, having regard to the evidence presented and the provisions of the Safety, Rehabilitation and Compensation Act 1988, I have determined that on and from 28/1/2003, we are no longer liable to pay compensation for your claim under any provision of the Act.”
47. In Mr Kelly’s submission for the Respondent this is a determination under s.16 of the Act, concerning medical treatment costs. However, that proposition is not consistent with the terms of the determination. It is asserted that at the time of the determination the only head of compensation being exercised was in relation to Mr Pisani’s claims concerning medical treatment costs. That may be so but the determination does not address any such claim but purports to cease the Respondent’s liability to pay compensation in relation to the injury. On reconsideration of the determination, the Review Officer stated (T74, folio 159):
“To the extent that the determination of 28 January 2003 found that there was no ongoing liability for the employee’s claim in general and specifically for medical treatment expenses and further compensation for permanent impairment, I agree with that decision.
Having regard to the employee’s compensation file and the provisions of the Safety, Rehabilitation and Compensation Act 1988, I affirm the determination dated 28 January 2003.”
48. It appears that the Review Officer accepted that the determination addressed the question of “ongoing liability” “in general” as well as under specific heads of compensation. I am compelled to conclude that the determination is not limited in its scope to liability arising under s.16 of the Act. The determination arose from a review of Mr Pisani’s case by Comcare and did not address a specific claim by Mr Pisani. It appears that the Review Officer decided that the determination concerned general liability, liability for medical treatment expenses and liability for permanent impairment. On that construction it appears that the Review Officer considered the determination was made under s.14, s.16 and s.24. Whether that construction is correct or not, it follows that Comcare had power to reconsider the determination under s.62 of the SRC Act and issue a reviewable decision.
49. The powers of this Tribunal for the purpose of reviewing a decision are conferred by s.43(1) of the AAT Act, whereby “the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. It follows therefore that the Tribunal has the same powers and discretions that were available to the Review Officer who made the reviewable decision to affirm, vary or revoke the determination (s.62(5)) (see Lees v Comcare (1999) 56 ALD 84 at par 39). It is necessary, therefore, for the Tribunal to address the same question or questions that were before the officer who made the determination (see Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234).
50. It is a fact that on 25 November 2002 the primary decision-maker wrote to Mr Pisani stating “[o]ur office regularly reviews claims to decide whether entitlements to compensation benefits should continue”, “I am not satisfied that liability in relation to your claim [for reactive depression] continues”. Mr Pisani was invited to present further evidence “[b]efore a determination to cease liability is made” (T52). It is clear that the question the primary decision-maker posed was whether Mr Pisani continued to suffer from the effects of his compensable injury and whether Comcare’s liability to pay compensation under the SRC Act in relation to that injury is on-going.
51. On the evidence before me it appears that in the period prior to 28 January 2003 Mr Pisani sought to claim compensation for medical treatment (pharmaceutical) expenses (even though there is no documentation of such claims in evidence) but no other head of compensation under the Act was active at that time. Mr Pisani’s earlier claim for medical treatment (physiotherapy) expenses was denied in June 1998 in a reviewable decision that Mr Pisani did not pursue to this Tribunal. Mr Pisani makes repeated references to his on-going use of antidepressant medications in evidence concerning his claim (see T48, T55, T69 and T75). He makes reference to outstanding claims in relation to the cost of such medications.
52. It appears that Mr Pisani is seeking a decision from this Tribunal concerning Comcare’s on-going liability, especially in relation to payment of medical treatment expenses. However, there is no reviewable decision before me concerning the payment of specific compensation for medical treatment expenses that is alive in these proceedings. The reviewable decision in question addresses a determination that arose from a review by Comcare of Mr Pisani’s original claim in relation to Reactive Depression “to decide whether entitlements to compensation benefits should continue” (T52 folio 122) and not in relation to any specific claim by Mr Pisani concerning the payment of medical treatment expenses.
53. The Tribunal’s jurisdiction is enlivened by the reviewable decision before me. That decision does not address a specific determination to deny a claim by Mr Pisani for payment of medical treatment expenses but addresses a determination that purports to cease Comcare’s liability under “any provision” of the SRC Act in relation to Mr Pisani’s injury.
liability to pay compensation
54. The position concerning Comcare’s acceptance of liability pursuant to s.14 of the Act has been clearly explained by the Full Federal Court in Lees v Comcare (above) at pars 34 and 35. None of the five factors referred to in Lees v Comcare (above) in relation to an s.14 determination are pressed in these proceedings. Cooper J clearly articulated the interrelationship between s.14 and other sections of the SRC Act dealing with specific kinds of compensation in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at 666-667. It follows that the liability Comcare accepted to pay compensation continues until it is satisfied by payment of particular kinds of compensation under one or more sections of the SRC Act. In the case of Australian Postal Corporation v Oudyn (above) Cooper J said at pars 33 and 34:
“33 Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
34 APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.”
55. It is not in issue that Mr Pisani satisfied the requirements of s.54 and Comcare determined to accept his claim in respect of “Reactive Depression” on 3 March 1995. Liability pursuant to s.14 of the SRC Act, therefore, properly arose. Mr Pisani was subsequently paid compensation for medical treatment costs, incapacity for work and permanent impairment in relation to specific claims under relevant sections of the SRC Act.
56. The Review Officer reconsidering the primary determination in this matter decided there was “no on-going liability for the employee’s claim in general and specifically for medical treatment expenses and further compensation for permanent impairment”. However, Comcare cannot bar any future application for compensation in relation to an injury for which liability has been accepted pursuant to s.14 of the SRC Act (see Plumb v Comcare (1992) 39 FCR 236 at 240 and Australian Postal Corporation v Oudyn (above)).
57. It follows that any comments made by the Review Officer which purport to cease liability under the SRC Act and imply a bar to any future claims in respect of Mr Pisani’s accepted injury cannot be supported (see Rosillo v Telstra Corporation Limited [2003] FCA1628).
effects of injury
58. I turn to consider the substantive questions that were before the primary decision-maker:
(a)Does Mr Pisani continue to suffer from the effects of the compensable injury, “Reactive Depression”, and
(b)Is Comcare liable to pay compensation under the SRC Act in relation to that injury on and after 28 January 2003?
59. Mr Pisani has expressed his case in numerous documents in evidence and in oral submissions at the hearing. Essentially his case can be simply put. Prior to the injury in 1994 he claims he did not suffer from any psychiatric or psychological condition. He suffered an injury in the course of his employment and was diagnosed with Reactive Depression in 1994, in relation to which Comcare accepted liability. He alleges that he continues to experience symptoms that are related to that 1994 injury. In Mr Pisani’s submission, the fact that he was awarded compensation for permanent impairment suggests that the effects of his injury are permanent and on-going. He contends that the evidence of Dr Chee, who treated him over a period of years, should be preferred to the opinions of Drs Lewin and Skinner. In Mr Pisani’s submission, Drs Lewin and Skinner were not impartial in their assessment of him and did not take into account the effects of the antidepressant medication prescribed by Dr Chee.
60. I note in passing that Mr Pisani ceased consulting Dr Chee for treatment of his compensable condition in or about December 2002. He continues to take antidepressant medication by prescription of his treating General Practitioner.
61. In Comcare’s submission, Mr Pisani’s Reactive Depression has resolved and he is not suffering from any effects of the 1994 compensable injury. Comcare relies on the reports of Drs Lewin and Skinner in preference to the reports of Dr Chee.
62. Considering the whole of the evidence, I am satisfied on the balance of probabilities that Mr Pisani’s Reactive Depression went into remission prior to 28 January 2003. I prefer the evidence of Dr Skinner and Dr Lewin to that of Dr Chee. Dr Skinner examined Mr Pisani in November 2003, almost one year after Mr Pisani’s last examination and assessment by Dr Chee, and found no evidence of Reactive Depression. Dr Lewin reported on 30 October 2002 that Mr Pisani’s symptoms at that time were attributable to his personality and not to Reactive Depression.
63. Considering all the evidence I am satisfied that Mr Pisani has an underlying obsessive compulsive personality style that borders on but does not constitute a personality disorder (Dr Chee, T27 folio 69; Dr Skinner, R1 p7). His personality style is characterised by “rigidity and difficulty adapting to change” (Ms Tanner, T8, f31). It is compulsive and obsessional (Dr Lewin, T7 folio 24), perfectionist, controlling, inflexible and preoccupied with details, order and rules (Dr Skinner, Exhibit R1 p7).
64. Mr Pisani’s personality style is constitutional and inherent. Considering his own account of his personal history in oral evidence it appears likely that Mr Pisani has exhibited characteristics of an obsessive compulsive personality style throughout his life prior to 1994. This is apparent in his evidence concerning some of his previous work experiences and attitudes, the circumstances of his proposed marriage to his wife, his descriptions of family life and subsequent difficulties in family relationships, especially with his son. However, there is scant evidence of his psychological condition prior to 1994. Dr Chee and other medical assessors have relied upon Mr Pisani’s accounts of his experience and behaviour prior to 1994. Those accounts must be treated with some caution. Dr Lewin noted that Mr Pisani does not acknowledge some aspects of his character (T51 f118) and tends to over-emphasise aspects of his symptomatology. Having the benefit of observing Mr Pisani’s personality style during the hearing I am persuaded to accept Dr Lewin’s conclusion. That being the case care must be exercised when considering the weight to be given to Mr Pisani’s uncorroborated statements.
65. Dr Chee’s report that Mr Pisani “tended to be a patient, tolerant man” prior to 1994 (T58, folio 130) is contrary to the preponderance of the evidence and is not consistent with Mr Pisani’s own account. I do not accept Dr Chee’s assessment and prefer the assessments of Ms Tanner, Dr Lewin and Dr Skinner. On their evidence I am persuaded that Mr Pisani’s personality characteristics were in all probability present by late adolescence.
66. I accept that some of the characteristics of Mr Pisani’s personality became more pronounced during 1994 (Dr Skinner, R1 pp7-8) and his personality style “has been complicated by a syndrome of reactive depression and anxiety” (Dr Lewin, T21 folio 56). At that time Dr Chee reported he had “become irritable and impatient in mood” and also developed “somatic accompaniments” as a result of “increased psychological stress levels” including increased micturition, episodes of palpitations and chest pain, decreased libido and initial insomnia (T4, folio 7). To the extent that Dr Chee’s report concerning the onset of symptoms was based on Mr Pisani’s account and is not corroborated by other evidence it must be treated with caution. On 30 November 1994, Dr Green reported that Mr Pisani cited the removal of his ATO department “from Hunter Street, Sydney to Hurstville” “as the beginning of his emotional problems”. It appears that Mr Pisani claimed he was discriminated against and experienced conflict at work because of his glaucoma (diagnosed in or about 1989). He experienced stress and anxiety and was diagnosed with hypertension in 1987 or 1988. On 2 December 1994 Dr Lewin reported that Mr Pisani’s treating general practitioner, Dr Martin Simpson, advised that Mr Pisani “was always somewhat anxious” (T6, folio 22). This evidence indicates that Mr Pisani experienced at least some of the symptoms which he complained to Dr Chee developed over “7-12 months” in 1994 (T4, folio 7) several years earlier in 1987 or 1988. I so find. On the evidence before me it is not possible to determine the extent or onset of those earlier symptoms and behaviours. It is more probable than not, however, that those symptoms, at least in part, were attributable to the interaction of Mr Pisani’s personality and the stresses he experienced in relation to the diagnoses of hypertension and glaucoma.
67. Nevertheless, it is accepted that Mr Pisani suffered a Reactive Depression in or about October 1994 that was materially contributed to by his employment, constituting an injury under the SRC Act.
68. The weight of the medical evidence indicates that a Reactive Depression is, as the label indicates, a reactive condition that is amenable to resolution over time, with appropriate treatment and removal of the causative trigger. Mr Pisani described the trigger of causation in his original claim in the following terms “Pressure of work; causing nervous stress, associated with visual problems (glaucoma)”. I note in passing that Mr Pisani’s glaucoma condition is not a compensable condition.
69. It is a fact that Mr Pisani ceased his employment with the ATO on 4 August 1995 following an extended period of absence from work on sick leave from October 1994. I find that his Reactive Depression improved with treatment (Drs Chee, Lewin and Skinner). On 30 October 2002, Dr Lewin reported that Mr Pisani experienced “intermittent symptoms of anxiety and depression” but concluded that such symptoms were “not sufficiently severe or continuous to justify the diagnosis of any psychiatric condition”. At that time Dr Lewin did not diagnose any Depressive Disorder and noted the absence of any objective signs of such conditions. He concluded that Mr Pisani’s on-going symptoms of irritability and impatience were the common experience of those who have a personality type such as that of Mr Pisani. Dr Lewin reported that Mr Pisani’s Reactive Depression had “gone into remission” and his (then) “current symptoms arise as part of the normal and expected response to the underlying personality problem” (T51 folio 119). Dr Skinner made similar conclusions in her report dated 20 November 2003. Those reports stand in contrast to the reports of Dr Chee dated 19 June 1998 and 8 December 2002. I am persuaded by the reports of Dr Lewin and Dr Skinner and find that Mr Pisani’s Reactive Depression went into remission prior to 28 January 2003.
70. Dr Chee treated Mr Pisani until December 2002. On 19 June 1998 Dr Chee reported that Mr Pisani’s “symptoms while clearly improved to January 1995, continue to persist at a partially controlled level”. It was Dr Chee’s opinion that Mr Pisani’s reported on-going irritability, agitation, anxiety and somatic complaints were symptomatic of chronic reactive depressive illness. Considering the whole of the medical evidence I am not persuaded to that conclusion. The preponderance of the medical evidence indicates that Mr Pisani has a compulsive personality type that, in style, approaches a personality disorder. Dr Lewin and Dr Skinner report that a person with such a personality style would be expected to experience some level of anxiety, agitation, irritability and impatience. On that basis it is perhaps unsurprising to find that Mr Pisani continues to experience some anxiety, agitation, irritability and impatience. There is some evidence, to which I have referred above, suggesting that Mr Pisani experienced some of these symptoms in 1987 or 1988, that is six or seven years before the alleged onset of symptoms and Reactive Depression in 1994. Considering all of the evidence I am persuaded by the reports of Dr Lewin and Dr Skinner that Mr Pisani’s complaints of irritability, anxiety, agitation and impatience are related to and arise from his personality style and current circumstances. I so find. I note in passing that since 1994 a number of serious health issues and concerns have confronted Mr Pisani that are unrelated to his previous employment.
71. I accept Dr Skinner’s evidence that personality characteristics may become “more pronounced” in response to stress and, thereafter may return to a “base level” or “may increase vulnerability to other stresses and triggers”. The question thus arising in this case is whether Mr Pisani’s personality style was accentuated by the Reactive Depression he suffered in the course of his employment and, if so, whether that accentuation is on-going and constitutes a disorder that is compensable.
72. The broader question whether Mr Pisani’s personality style constitutes a mental injury or, in the alternative, whether his personality style constitutes a disease that was aggravated in material degree by his previous employment is not before this Tribunal (see Lees v Comcare (1999) 56 ALD 84 at par 39). If Mr Pisani’s personality style arose out of or in the course of his employment or that employment caused his personality style to become disordered or defective, that change may constitute an injury under the Act. I make no findings in relation to that question. In Mr Pisani’s case, no claim for compensation has been made in relation to a personality disorder. The jurisdiction of this Tribunal is limited to the review of a “reviewable decision” made pursuant to s.62 of the Act. The reviewable decision in this case concerns Mr Pisani’s Reactive Depression. It follows that there is no jurisdiction to determine whether Mr Pisani’s personality style is compensable unless there is a causal relationship between his employment, the Reactive Depression and the accentuation of his personality style. It is to that issue I now turn.
73. Considering the whole of the medical evidence I am satisfied, on the balance of probabilities, that any accentuation of Mr Pisani’s personality style that arose in course of or in response to his previous employment and Reactive Depression does not amount to a personality disorder, that is, his personality is within the “normal spectrum of personalities” (Dr Chee, T27 folio 69).
74. I accept that Mr Pisani’s personality style is vulnerable to psychological stressors and became more pronounced in response to the stress he experienced in the course of his previous employment. Furthermore, it is likely that he continued to experience psychological stress accentuating his personality style as a result of the Reactive Depression he suffered in the course of that employment.
75. I note Dr Lewin’s comments concerning causation in 1996 (T21, folio 56):
“2.It is possible that this condition is still attributable to his former employment. On the other hand, the likely weight of causation tends more and more to current circumstances in the context of this diagnosis [compulsive personality disorder complicated by a syndrome of reactive depression and anxiety]. It is possible that work related factors are still related but this will diminish further with the passage of time.”
76. On Dr Skinner’s evidence it could be expected that Mr Pisani’s personality style would become less pronounced following the removal of the accentuating stressors even though vulnerability to other stressors may remain. The preponderance of the medical evidence indicates that Mr Pisani’s Reactive Depression improved with treatment and resolved prior to January 2003. It is a fact that Mr Pisani’s employment ceased on 4 August 1995. On that basis it would be reasonable to expect that Mr Pisani’s symptoms of personality would decline to a base level thereafter.
77. In Mr Pisani’s submission that did not occur and his symptoms of irritability and intolerance are on-going. He contends that those on-going symptoms are attributable to his previous employment. Having the benefit of observing Mr Pisani during the hearing it is clear to me that he remains impassioned and angry about his previous employment difficulties and his subsequent dealings with Comcare. That being the case and taking into account Mr Pisani’s obsessive personality traits it is possible that Mr Pisani’s negative feelings about his previous employment and his dealings with Comcare also act upon his personality style. I am not persuaded that those feelings constitute an abnormal response to those circumstances. Many are those who experience negative feelings of disappointment, disgruntlement or even anger in consequence of an adverse compensation decision. Seeking review of such an adverse decision is a stressful experience for many claimants. Such stress and feelings are common reactions to difficult circumstances that a person of healthy mind could be expected to experience. It is necessary to distinguish between an abnormal response to circumstances because of a mental ailment and the response of a healthy mind to such circumstances (see TheQueen v Falconer (1990) 171 CLR 30).
78. I am satisfied on the balance of probabilities that any accentuation of Mr Pisani’s personality style that resulted from his previous employment and Reactive Depression has ceased and that other psychological stressors have been acting upon his personality giving rise to his current complaints and symptoms. Mr Pisani has experienced a number of stressors since 1994 that are not related to his employment or his Reactive Depression. Those stressors include concerns about his deteriorating physical health, including the diagnosis of serious health conditions, and difficulties in his familial relationships and domestic circumstances (Dr Skinner, Dr Lewin and Mr Pisani’s oral evidence).
79. I accept the evidence of Dr Skinner and Dr Lewin that Mr Pisani’s current complaints do not constitute a psychiatric or emotional disorder and his symptoms are within the normal and expected response to an underlying personality problem. Dr Skinner reported on 20 November 2003 (Ex R1 p8):
“Mr Pisani’s principal complaint at present is his irritability and intolerance. He reports that he quarrels with his wife. He complains of a sleep problem. [This could be rectified by standard sleep hygiene methods, including avoiding daytime sleep.] Mr Pisani’s complaints are not sufficient to warrant a diagnosis of a psychiatric disorder. His irritability causes problems from time to time in his interactions with others, but has not led him into problems with authorities. His complaints do not prevent him from leading a satisfying life style with voluntary work, good relationships with his son and grandchildren and other interests. He has been able to enjoy an overseas holiday.
Mr Pisani is taking a low dose of anti-depressant medication, which he reports has a calming effect. I believe the medication could be withdrawn without any significant change in Mr Pisani’s anxiety levels. If he wishes to continue taking the medication, it is appropriate for his general practitioner to issue prescriptions.”
These comments are consistent with Dr Lewin’s comments on 30 October 2002 (T51 folio 119):
“At the present time Mr Pisani sees the psychiatrist [Dr Chee] infrequently for the purpose of review and maitenance. It would be reasonable for this treatment to continue. However, this could be managed by the general practitioner. I see no indication for any more intensive treatment.
At this stage it would also be reasonable for the psychiatrist to refer Mr Pisani back to the general practitioner for general monitoring. Should a flareup occur in the future, I would consider this to be part of the natural progression of his underlying condition or related to some more acute, immediate factor… There is no indication at this stage that psychiatric treatment will lead to any substantial improvement over time nor is there any indication that psychiatric treatment would bring Mr Pisani’s underlying personality problems into remission. His personality is likely to continue unchanged.”
80. Accepting this evidence, I am satisfied that Mr Pisani is not currently suffering from a psychiatric or emotional disorder. His current symptoms arise from his obsessive compulsive personality style and are not sequela of his previous work-related Reactive Depression. His vulnerability of personality is life long. Nonetheless, I accept that Mr Pisani’s personality style approaches the boundaries of normal mental functioning and behaviour (see Comcare v Mooi (1996) 69 FCR 439 at 447). Whether Mr Pisani’s personality style traversed that ill-defined boundary and constitutes a mental disorder is a matter about which medical opinions differ. However, I do not need to resolve that issue. Mr Pisani has not made any claim in relation to his personality style and I am satisfied that his personality style and related current symptoms are not causally related to his previous reactive depression.
81. Accepting the evidence of Drs Lewin and Skinner I am satisfied, on the balance of probabilities, that Mr Pisani has a life long vulnerability of personality that decompensated into a Reactive Depression in 1994. That depressive disorder subsequently went into remission prior to 28 January 2003 and ceased to have any effect on Mr Pisani’s personality thereafter.
conclusion
82. Comcare’s liability under the SRC Act in relation to Mr Pisani’s accepted work-related injury is not extinguished in relation to future claims even though the Reactive Depression he suffered in the course of his employment has gone into remission. Mr Pisani does not currently suffer from any effects or sequela of that depressive disorder and has not done so since 28 January 2003.
83. Mr Pisani has an obsessive compulsive personality style that is vulnerable to psychological stress. His personality style was temporarily accentuated by the psychological stress caused by his deteriorating physical health from 1987 and his previous employment. It is possible that Mr Pisani’s Reactive Depression caused some accentuation of his personality style. On the evidence of Dr Skinner, his personality style would be expected to return to “a base level” following treatment of the depressive disorder and the removal of accentuating stressors. Mr Pisani’s psychiatric treatment was successful to the extent that his depressive disorder went into remission. His previous employment was ceased in 1995 and diminished as a stressor thereafter. Other stressors have confronted Mr Pisani since that time and it is more likely than not that stresses relating to his deteriorating health have interacted with his personality since that time. Symptoms of Mr Pisani’s underlying personality style are on-going. On the evidence before me I am satisfied that any current symptoms or accentuation of Mr Pisani’s personality style are not related to his previous Reactive Depression.
84. Mr Pisani has not claimed compensation in relation to his personality style. It follows that the question whether Mr Pisani’s personality style or any accentuation thereof constitutes a mental injury or a disease that is compensable under the SRC Act is not before this Tribunal.
85. The decision under review is set aside. That being the case, the outcome of these proceedings is favourable to Mr Pisani even though I have found that his Reactive Depression is in remission and his current symptoms are not sequela of his depressive disorder.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: A. Krilis
AssociateDate/s of Hearing 9 March 2004
Date of Decision 6 May 2004
Representative for the Applicant Self
Counsel for the Respondent Mr KellySolicitor for the Respondent Mr Ainsworth
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