POLLEYCUTT and COMCARE
[2011] AATA 564
•17 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 564
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/1012
) No 2010/1009
GENERAL ADMINISTRATIVE DIVISION )
Re ERIC POLLEYCUTT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member
Dr B Hughson, Member
Date 17 August 2011
PlaceCanberra
Decision The decisions under review are affirmed. ...................[sgd]...........................
Professor RM Creyke, Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – accepted psychological injury – liability ceased 2006 – whether the applicant continues to suffer from his accepted condition – whether the applicant developed a new psychological injury – whether the applicant suffered an aggravation of his accepted injury – whether new injury or aggravation significantly contributed to by the applicant’s employment
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Comcare v Mooi (1996) 42 ALD 495
Comcare v Sahu-Khan (2007) 156 FCR 536
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Re Carpenter and Comcare (2010) 116 ALD 190
Re Carty and Australian Postal Corporation [2010] AATA 47
Wiegand and Comcare (2002) 72 ALD 795
REASONS FOR DECISION
17 August 2011 Professor RM Creyke, Presiding Member
Dr B Hughson, Member
1. Mr Eric Polleycutt had an accepted condition of ‘adjustment reaction with anxious mood’ with a date of injury of 16 December 2004. He has lodged two further applications for review.
2. On 24 November 2006 Comcare made a cease liability decision and notified Mr Polleycutt accordingly.
3. On 24 April 2008, the Tribunal made an order by consent that liability for medical expenses and incapacity payments for the accepted condition continue until 18 October 2007 and 26 March 2007, respectively, with Comcare to decide whether incapacity payments were to continue beyond 26 March 2007. In the result, incapacity payments were made until 16 October 2007.
4. Mr Polleycutt was advised that if he wished compensation to continue he would need to make a new application. He complied, seeking compensation for a new injury, namely, ‘anxiety and reactive depression’, with a claimed date of injury of 1 January 2007. That application was rejected by Comcare, a decision upheld on review. Mr Polleycutt sought further review by the Tribunal on 8 March 2010.
5. The first application (AAT No 2010/1009) seeks review of Comcare’s decision dated 3 March 2010, affirming a decision dated 30 June 2009 denying Mr Polleycutt compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for ‘anxiety and reactive depression’. The condition had a deemed date of injury of 31 June 2007.
6. The second decision (AAT No 2010/1012) seeks review of Comcare’s decision dated 3 March 2010, affirming a decision dated 26 October 2009 that Mr Polleycutt was no longer entitled to compensation for medical expenses (section 16 of the Act) and loss of earnings (section 19 of the Act) for his ‘adjustment reaction with anxious mood’.
7. The matter was heard in Canberra on 23-24 June 2011.
Issues
8. The overarching issues are:
(a)whether Mr Polleycutt is still suffering from his accepted condition; or
(b)whether he developed a new condition after Comcare ceased liability in October 2007; or
(c)whether he suffered from an aggravation of his accepted condition.
9. Critical to the outcome, given the stressful non work-related factors affecting Mr Polleycutt, is whether work-related factors have caused, or significantly contributed to, the development or recurrence of Mr Polleycutt’s claimed psychiatric condition.
10. The issues are set out under the specific Tribunal applications.
AAT No 2010/1012
· Whether Mr Polleycutt continued to suffer from the effects of his accepted injury on and after 19 October 2007;
· If so, whether he was incapacitated for work as a result of that injury; and
· Whether it was reasonable for Mr Polleycutt to obtain compensation for medical treatment of the injury from 19 October 2007.
AAT No 2010/1009
· Whether Mr Polleycutt has a new injury for the purposes of the Act;
· If so, what is the deemed date of injury
· The appropriate diagnosis of the injury; and
· Whether Mr Polleycutt’s employment contributed to the injury to a significant degree.
Background
11. Mr Polleycutt was diagnosed with a cerebellar hemangioblastoma – a tumour on the brain - in 1993. This condition was not work-related. He underwent surgery for the condition in 1993, recovered and went on to university where he completed an accountancy degree, obtained qualifications as a tax agent, and commenced employment.
12. A second tumour emerged in 2007 and was operated on using keyhole surgery in mid-2007. Mr Polleycutt has a familial history of such tumours and other small benign tumours are developing, including on his spine. From 2008, Mr Polleycut also demonstrated some symptoms of carpal tunnel syndrome and additional spinal conditions.
13. From 26 May 2004 Mr Polleycutt was employed by the Department of Agriculture, Fisheries and Forestry (DAFF)(Agency) at the Executive Level 2 (EL2) level. Events which occurred in 2004 in the workplace at the Agency led him, in November 2004, to lodge a workers’ compensation claim for a condition described as ‘acute stress reaction’. Liability for ‘adjustment reaction with anxious mood’ was accepted by Comcare on 3 June 2005 with a date of injury of 16 December 2004.
14. Subsequently during 2005 and 2006, Mr Polleycutt made three attempts to return to work. However, he claimed that his return to work program involved him working in positions below his substantive level which he found unsatisfactory.
15. On 30 May 2006 Mr Polleycutt had been notified that he was suspected of breaching the Code of Conduct due to the incidents in 2004 and an investigation would be undertaken. On 1 August 2006, he was found to have been in breach, but the only sanction imposed was a reprimand. After a further investigation, on 28 June 2007 the Merit Protection Commissioner upheld two findings of breach of the Code but noted the minor nature of the transgressions.
16. On 31 May 2006 Mr Polleycutt effectively ceased working for the Agency, although he last attended at the workplace on 18 and 19 September 2006. On 25 February 2008, the Agency purported to terminate his employment as at 27 March 2007. Mr Polleycutt disputed the cessation of employment.
17. On 13 May 2008, the Agency again wrote to Mr Polleycutt indicating his employment had ceased as at 27 March 2007, and enclosing a cheque for his final entitlements. Mr Polleycutt returned the cheque and brought wrongful dismissal proceedings against the Agency on 30 May 2008. The proceedings were settled by mutual agreement and Mr Polleycutt discontinued the proceedings.
18. From September 2006 Mr Polleycutt obtained work at the Australian Bureau of Statistics (ABS) as an interviewer, commencing work in March 2007. The position was considerably lower than his substantive position at the Agency. Although listed as a full-time position, work for a minimum of one week a month only was guaranteed. He remained in that position until his employment was terminated on 20 October 2009. Mr Polleycutt ceased regular work for ABS in March 2008, but worked a few hours in June 2008.
19. In his own time, Mr Polleycutt also works as a registered tax agent. Mr Polleycutt’s testimony at the hearing was that except for the period leading up to 30 June each year, the amount of work is insignificant, that is, less than one day a week.
20. Mr Polleycutt brought unfair dismissal proceedings against the ABS late in 2009 or some time in 2010, and the Tribunal understands this action too was settled by consent. No evidence to this effect was provided to the Tribunal.
21. Alongside his work history, Mr Polleycutt has experienced other stressors. In 2000 and 2001 Mr Polleycutt’s marriage was having difficulties. He and his wife eventually separated in 2006. Mr Polleycutt has two children by that marriage. The break-up led to protracted and acrimonious custody and property proceedings in the period from February 2007 to, at least, December 2010.
22. There is evidence that Mr Polleycutt was prescribed Zoloft on a regular basis from 2001. Initially the dose was low at 50mg daily – Mr Polleycutt described it at the hearing as a ‘pick-me-up’ dose – but it was increased to 100mg daily from late 2006, although there is evidence that for a period in 2007 he stopped taking the medication. By March 2009 he was taking 200mg daily due to poor sleep and poor concentration and he was apparently taking the medication at that daily level also at the beginning of June 2010. On 9 June 2010, his treating general practitioner, Dr Don Curtotti, reduced the dose to 150mg daily.
23. At the hearing, the medical experts agreed that 50mg was a starting dose; a therapeutic dose is normally around 100mg, and depending on whether, among other things, that amount was working, the dosage could then be increased.
24. The clinical records for Mr Polleycutt indicate the following variable prescription regime for Zoloft, although there is some inconsistency in reported dosages:
(a)Prescribed 50mg daily on 23 April 2001, 18 May 2001, 1 November 2001, 26 April 2002, 2 April 2003, 20 April 2004, 16 August 2004, 3 November 2004, 2 June 2005, 7 July 2005, 9 January 2006, 1 February 2006, 20 April 2006, and again on 4 September 2006.
(b)From November 2006 his dose was increased to 100mg daily.
(c)In early 2007 he stopped taking Zoloft. However, by 3 July 2007 he was again taking Zoloft at 100mg daily.
(d)On 12 March 2008, 26 May 2008 and 6 November 2008 Zoloft at 100mg daily was again prescribed.
(e)By 6 December 2008, clinical records show ‘not coping, on Zoloft; financial pressures, feeling better on Zoloft’.
(f)On 6 February 2009, notations indicate ‘taking Zoloft, not coping well’
(g)On 3 June 2009, the notes say: ‘Still on Zoloft 100mg daily’.
(h)According to the report of the Tuggeranong Mental Health Team Mr Polleycutt increased his dosage to 200mg daily from March 2009.
(i)In June 2010 Dr Curtotti reduced his dose to 150mg daily.
25. Mr Polleycutt was referred for mental health assessment on 21 February 2007 and again in early 2009. Reasons for taking Zoloft were variously described. On 31 March 2009, Dr Rasaratnam’s clinical notes states; ‘still not coping, has not seen psychiatrist, ?losing job, had Comcare claim 2004’.
26. A report by Jane Bonser of the Tuggeranong Mental Health Team, dated 2 April 2009 noted that Mr Polleycutt ‘has previously felt a benefit from this dosage’ of 200mg daily. She reported Mr Polleycutt as saying his current issues were: ‘Going through court procedures regarding custody of his children and he is also taking his last work place [the Agency] to court due to illegal dismissal. Eric previously worked at the Agriculture, Fisheries and Forestry service until 2006. He states he was bullied and harassed as the company was breaching laws’. The clinical notes also stated ‘Current psychological dominated by unfair dismissal case and events 2006. Under Comcare – Comcare denied liability. Previous contribution by sexual harassment allegations 2004’.
27. Mr Polleycutt was assessed in the report as a ‘Definite but low suicide risk’. Ms Bonser also reported he ’did not appear to have any formal thought disorder or show any signs or symptoms or psychosis’, ‘Nil perceptual problems’ and that his ‘Short-term memory and long-term memory appear to be intact’. The report concluded that he ‘does not appear to have a major mental illness’, although it noted past diagnoses of depression. It was recommended he remain on his current medication and seek counselling and advice about his financial situation and court issues. She reported he had ‘fair insight, poor judgement’.
Other medical conditions and factors affecting Mr Polleycutt
28. On 3 June 2009, the clinical notes state: ‘seeing psychiatrist, not coping, still having problems with family court, ex employer’.
29. Following Comcare’s ‘cease liability’ notice on 22 November 2006, Mr Polleycutt gave evidence that he had financial difficulties and was reduced to a Centrelink newstart payment of about $200.00 a week. Mr Polleycutt said he applied for numerous jobs at this time and was eventually successful in obtaining the ABS position as an interviewer. However, that position did not commence until March 2007 and as interviewers were only guaranteed work for one week a month, Mr Polleycutt indicated his financial difficulties continued.
30. Mr Polleycutt was again on newstart allowance in April 2009 and had told Tuggeranong Mental Health Team that he was ‘finding it hard [with] child maintenance and the court fees’.
31. A medical certificate for Centrelink certified Mr Polleycutt unfit for work from March 2009 to May 2009 for medical conditions listed as: ‘Stress, not coping, anxiety; and cerebellar haemangioblastoma’.
History of proceedings
32. Following acceptance of liability for his initial condition, Mr Polleycutt successfully claimed compensation for incapacity for work and for medical treatment for his ‘adjustment reaction with anxious mood’.
33. Comcare advised Mr Polleycutt on 22 November 2006 that it intended to cease payment of compensation for incapacity payments and for medical treatment on the basis that his accepted condition had resolved and if he wanted compensation payments to continue he would need to make a claim for a new condition. That decision was affirmed on 26 April 2007.
34. The matter was appealed to the Tribunal which resolved the claim by consent on 24 April 2008. Under that decision Mr Polleycutt was to receive compensation for incapacity under section 19 of the Act from 1 June 2006 to 26 March 2007. The possibility of further incapacity payments until 16 October 2007 was remitted to Comcare for reconsideration. Incapacity payments were made until 16 October 2007. Mr Polleycutt’s medical expenses under the Act were paid up to 18 October 2007.
35. Earlier, on 28 August 2007, Comcare had rejected liability for a condition described as ‘aggravation of major depressive disorder, recurrent episode’, with a deemed date of injury of 1 June 2006. The application was rejected on the ground that it fell within the exclusionary provisions in section 5A of Act. An ‘operative cause in the development’ of the condition was said to be the disciplinary procedures implemented by the Agency on 30 May 2006 and the failure to obtain a benefit in connection with Mr Polleycutt’s employment. Mr Polleycutt did not seek review of the application.
36. On 1 September 2008 Mr Polleycutt submitted a claim for ‘anxiety and reactive depression’ said to be due in part to the continued mishandling by his workplace of his situation including ‘removal of work, pre-approved training, rehabilitation’ as well as departmental intimidation, bullying, and unjust dismissal proceedings. The claimed date of injury was 1 January 2007, a public holiday. At the hearing, Mr Polleycutt admitted he had not given much thought to the deemed date of injury when he completed the application form and that the date had little significance.
37. On 30 June 2009, in AAT No 2010/1009, Comcare rejected the 1 September 2008 claim for a condition Comcare described in the initial decision as ‘aggravation of adjustment reaction with depressive reaction’. The refusal was made on the basis that Mr Polleycutt had recovered from his accepted condition on or before 18 October 2007, and Comcare was not satisfied that any current condition was a new psychiatric condition or had been contributed to by Mr Polleycutt’s employment. This decision was affirmed on review on 3 March 2010 although no diagnosis of the condition was made.
Consideration
38. A number of medical experts gave concurrent evidence at the hearing. Those involved were Dr William Knox, consultant psychiatrist, Dr Tom Sutton, psychologist, Dr Graham George, consultant psychiatrist and Mr Marshall O’Brien, Mr Polleycutt’s treating psychologist. Dr Knox and Mr O’Brien appeared in person; Dr Sutton and Dr George by telephone.
AAT No 2010/1012
39. The principal issue in this matter is whether Mr Polleycutt continued to suffer from the effects of his accepted injury on and after 19 October 2007. Mr Polleycutt’s condition, ‘adjustment reaction with anxious mood’, was accepted by Comcare in 2005 as being significantly due to his employment with the Agency. The condition was a ‘disease’,[1] as it was considered to be a psychiatric condition that was outside the boundaries of normal mental functioning,[2] and was therefore an ‘injury’ for the purposes of the Act.[3] Comcare’s liability for compensation for medical payments ceased on 18 October 2007 and for incapacity payments on 16 October 2007.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) ss 5A, 5B.
[2] Comcare v Mooi (1996) 42 ALD 495.
[3] Act s 5A.
40. The issue, therefore, is whether that condition continued after 18 October 2007. For that purpose the Tribunal has examined medical evidence prior to and for a period following that date. Since there may be some interrelationship between Mr Polleycutt’s other medical conditions and his psychiatric disorder, some evidence is provided in relation to these matters.
Medical evidence
41. Mr Polleycutt had an accepted condition of ‘adjustment reaction with anxious mood’, with date of injury of 16 December 2004. That was based on the following medical diagnoses:
- a medical certificate by his treating general practitioner, Dr Anthony Ng on 17 December 2004 for ‘acute stress reaction’;
- the diagnosis of the consultant psychiatrist, Dr John Saboisky on 12 May 2005, of ‘adjustment disorder with features of anxiety and depression and anger’;
- the report of Dr Graham George, consultant psychiatrist, who examined Mr Polleycutt on 25 May 2005 and diagnosed ‘adjustment disorder with anxious and depressed mood’
42. Dr George reassessed Mr Polleycutt on 26 October 2005 and revised his diagnosis noting that Mr Polleycutt had ‘evidence of an organic mental disorder’ and there appeared to be ‘a significant element of depression’. Relying on the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edition) (DSM IV) classification, Axis 1, he proposed a formal diagnosis of ‘1. Possible organic mental disorder; 2 Mild to moderate major depression’.
43. Dr Dr Andrew Lark, occupational physician, reported to the Agency on 11 October 2007 that ‘Mr Polleycutt appears to be going well now in relation to his anxiety and depression’ and was fit to return to work other than at the Agency.
44. A medical certificate by Dr Anthony Ng, Mr Polleycutt’s then treating general practitioner, dated 14 June 2007 had diagnosed ‘Anxiety and reactive depression’ attributable to work-related matters, but this entry appeared to be simply a repetition of earlier certificates. There are no clinical notes from Dr Ng from July 2007 until June 16 2008, when Dr Ng notes only that Mr Polleycutt had been working at the ABS from March 2007. On 21 January 2009 Dr Ng confirmed he had ceased supplying medical certificates in relation to Mr Polleycutt’s Comcare claim.
45. The clinical notes of Dr Sivan Rasaratnam, also a treating general practitioner for Mr Polleycutt, indicate that on 3 July 2007, Zoloft was prescribed at 100mg daily, the same dose which had been prescribed for Mr Polleycutt during the previous 12 months. However, the medical certificate for the period 15 July 2008 to 15 October 2008, noted the first ‘medical condition’ as ‘depression’ and the symptoms are ‘feeling low; not coping’. The certificate for 15 October to 15 December 2008 noted ‘stress’ as the third medical condition, and for the next two certificates from December 2008 to May 2009, the first-mentioned conditions are ‘stress, not coping, depressed/anxiety’.
46. Dr Donato Curtotti, Mr Polleycutt’s current treating general practitioner noted, in a letter dated 6 November 2008, that Mr Polleycutt had been prescribed Zoloft at 100mg daily on 23 October 2008. In his clinical notes for 23 January 2009, Dr Curtotti said that Mr Polleycutt ‘is planning to make a new claim of stress and anxiety caused by the sacking’ by the Agency. The notes say: ‘He states he has symptoms – insomnia, urgency to defecate, urgency to urinate, constantly tense, irritable + headachey, sometimes thinks of suicide – (no plans to do so however)’. Dr Curtotti provided a medical certificate from 2 February 2009 to 2 March 2009 stating that Mr Polleycutt was suffering from ‘anxiety and reactive depression’.
47. There appear to be no clinical notes concerning any consultations by Mr Polleycutt with Mr Marshall O’Brien, Mr Polleycutt’s treating psychologist, between 19 February 2007 and 14 July 2008. That may be because Comcare had advised, in February or March 2007, that it was no longer funding Mr O’Brien’s services.
48. At the same time notes, by Mr Mark Collins, counsellor with ParentLine, indicated that Mr Polleycutt had attended 15 counselling sessions between 13 September 2007 and 21 May 2008. The notes say that Mr Polleycutt had presented with ‘anxiety arising from work issues and associated legal and family issues which have troubled him for 3-4 years’ .The notes say that Mr Polleycutt ‘expressed a need for support and guidance over the course of legal proceedings following his earlier significant loss of clients and income’. The report concluded that by the end of the sessions, Mr Polleycut had said ‘he was now able to spend time thinking through issues and reflecting on their importance to his life’ and that ‘a factor in this may be the eventual resolution to his legal and work-related proceedings’. Mr Collins regarded these insights as positive.
49. Mr Collins had administered the Depression, Anxiety and Stress Syndrome (DASS) instrument which at the commencement of the sessions indicated Mr Polleycutt was at the 30th percentile on an ascending scale of well-being; by the end of the 15 sessions his DASS score was at the 92nd percentile. Mr Collins had ascribed the wide variation as positive, namely, ‘given his insightful self-observation … his initial score was artificially low and thus his most recent score is a truer reflection of Eric’s condition’. Nevertheless, the Tribunal notes that the marked discrepancy between the percentile scores flags a need to be cautious about either result.
50. Dr William Glaser, consultant psychiatrist, provided a report on 7 November 2007, following an assessment on 18 October 2007. Dr Glaser not only took an extensive history from Mr Polleycutt but had also been provided with over 400 pages of documentation concerning Mr Polleycutt’s history.
51. Mr Polleycutt’s account, as recorded by Dr Glaser at that time, was that ‘he is generally very happy’, that he ‘denied any problems in terms of his sleep, appetite, memory, concentration or learning his new job’, that he ‘does not become tearful and can laugh and enjoy jokes’ and ‘does not suffer from fatigue’. Dr Glaser noted that throughout the interview, Mr Polleycutt referred to a number of incidents of alleged unfair treatment of him but ‘denied being preoccupied with these’. These reports of Mr Polleycutt’s ‘mood’ were made at a time when the report noted he was ‘engaged in family court litigation regarded the custody of his two daughters’.
52. Dr Glaser concluded that Mr Polleycutt was ‘no longer … suffering from any significant psychiatric problems’ which he believed ‘ceased to trouble him around the beginning of 2007’. He was however, ‘experiencing some very subtle memory and language problems … reasonably ascribed to the effects of his brain tumour’. His report noted that although Mr Polleycutt was still taking ‘a small dose of antidepressant medication’ this was ‘to help him cope with the distress engendered’ by non work-related factors, particularly the family court proceedings.
53. In a supplementary report on 12 December 2007, Dr Glaser responded to questions by Comcare and noted ‘there is reasonable evidence to indicate that Mr Polleycutt was probably incapacitated for work between 1 June 2006 and some time in September 2006’ due to work-related conditions. He also said that as far as he could tell ‘in May 2006, Mr Polleycutt was probably suffering from some form of psychological distress, the symptoms of which would have been consistent with the diagnosis of Adjustment Disorder with Anxious Mood’. In Dr Glaser’s view, however, by about September 2006 Mr Polleycutt had recovered sufficiently to work elsewhere than at the Agency and he did in fact commence work with the ABS in March 2007.
54. Dr William Knox, consultant psychiatrist, saw Mr Polleycutt for the first time in 2010. In a report dated 10 November 2010 he diagnosed ‘adjustment disorder with anxiety’. As he said:
It is my opinion that Mr Polleycutt describes, and evidences, symptoms characteristic, according to the guidelines in DSM-IV, of Anxiety Disorder. Mr Polleycutt continues to meet DSM-IV diagnostic criteria for Adjustment Disorder with Anxiety, although he also describes more severe symptoms warranting a diagnosis of chronic Generalised Anxiety Disorder, with him additionally experiencing Panic Attacks.
55. In his view, this condition was due to multiple stressors which continued from 2004-2005 to the present. In his view, after April 2008, ‘Mr Polleycutt experienced further dominoes falling, directly linked to the earlier problems with DAFF, and also to Comcare. These events aggravated Mr Polleycutt’s mental disorder’. In Dr Knox’s view there had never been any satisfactory resolution of Mr Polleycutt’s earlier problems.
56. Dr Graham George, consultant psychiatrist, had seen Mr Polleycutt on 25 May 2005, 26 October 2005, and he reported again on 30 June 2010. In his view, Mr Polleycutt suffered mental impairment from an organic mental disorder caused by the brain tumours and consequent brain surgery. He did not necessarily see Mr Polleycutt as suffering anxiety and depression. At the same time he conceded that Mr Polleycutt had ‘significant psychosocial stressors over time’ which he suggested ‘could contribute to anxiety and depression’. He concluded: ‘I do not necessarily see him as suffering an ongoing adjustment disorder from 2004-2005 onwards’. He denied that he had either an anxiety disorder or an adjustment disorder. In his view, an adjustment disorder is a reaction to a specific stressor(s) and any such stressors had ‘long since disappeared’.
Summary of medical evidence
57. The Tribunal has considered the medical evidence from mid-2007 to mid-2008 to assess whether there is evidence that Mr Polleycutt’s accepted condition continued on or after 19 October 2007. The initial cause of that condition in 2004 had been accepted to be, to a significant extent, the stresses arising from Mr Polleycutt’s treatment by the Agency. The Tribunal notes that Mr Polleycutt in effect ceased to work at the Agency from the end of May 2006.
58. The Tribunal notes that the clinical notes of Mr Polleycutt’s treating practitioners did not record concerns about a diagnosed psychiatric condition at or around October 2007. A summary of the medical evidence at that time is as follows:
- 11 October 2007: Dr Lark reported that ‘Mr Polleycutt appears to be going well now in relation to his anxiety and health’;
- 28 October 2007 visit: Dr Glaser reported that Mr Polleycutt is ‘no longer … suffering from any significant psychiatric problems’, ‘is generally very happy’ and denied suffering symptoms indicating psychological distress; and
- 13 November 2007: Dr Rasaratnam’s notes indicate ‘headaches’ and a CT of the brain is recommended presumably to test for a hemangioblastoma, but the only reference to causation is to a ‘custody dispute’,
59. There are no clinical notes at this time from Dr Ng or Mr O’Brien.
60. The Tribunal notes that there is evidence of some stress beginning in the first half of 2008, as follows, but there is no evidence of a diagnosed psychiatric condition:
-12 March 2008: Dr Rasaratnam’s clinical notes note ‘started work again; feels stress; feeling low’, and Zoloft 100mg daily is prescribed;
-15 July 2008: Dr Rasaratnam’s notes refer to ‘not coping with work’ and ‘taking Zoloft’, and ‘depression’ is noted in the medical certificates from then till May 2009.
-Again, there are no clinical notes at this time from Dr Ng or Mr O’Brien;
61. The principal source of a suggestion that Mr Polleycutt is experiencing psychological distress at this time may be the brief report of Mr Collins from ParentLine. The 15 counselling sessions between 13 September 2007 and 21 May 2008 were described to be for ‘anxiety arising from work issues and associated legal and family issues’. The report is brief, and the business of ParentLine is counselling relating to family issues. The website for ParentLine describes the service as one that ‘assists any person who wants information or someone to talk to about parenting’.
62. The consultations with Mr Collins coincided with a period in which Mr Polleycutt was undergoing protracted custody and family law proceedings. The Tribunal also notes that the marked discrepancy in the results of the DASS testing conducted by Mr Collins throws doubt on its utility. Accordingly, although Mr Collins report does refer to ‘work issues’ as a presenting issue, the Tribunal finds there is insufficient weight from this material to counteract the generally positive medical evidence of Mr Polleycutt’s mental state at that time.
63. Overall, the picture presented does not indicate that Mr Polleycutt was continuing to suffer significant psychological or psychiatric distress in the period at or around 19 October 2007. Accordingly the Tribunal is satisfied that by 19 October 2007, Mr Polleycutt had recovered from his ‘adjustment reaction with anxious mood’. That means for matter No 2010/1012, the decision under review is affirmed.
AAT No 2010/1009
64. The principal issue in this application is whether Mr Polleycutt has a new condition for the purposes of the Act. A preliminary issue is the date of any such injury.
Date of injury
65. The statutory criteria for deciding the date of injury is either the date ‘the employee first sought medical treatment for the disease, or aggravation’ or the date ‘the disease or aggravation … first resulted in the incapacity for work, or impairment of the employee; whichever happens first’.[4]
[4] Act s 7(4).
66. The workers’ compensation application by Mr Polleycutt for a new condition described as ‘anxiety and reactive depression’ showed a deemed date of injury of 1 January 2007. At the same time the form noted that he had first sought medical treatment from Dr Ng for the injury on either 14 or 31 June 2007. Comcare had deemed the date of injury to be 31 June 2007. There is a medical certificate from Dr Ng on 14 June 2007 to accompany the claim certifying that Mr Polleycutt is unfit for work from 6 June 2006 to 31 December 2007.
67. However, the certificate notes that the condition was caused by:
Variation of old allegations presented to him on the 30/5/2006 (recreation of initial allegations of 2004). Meaningful duties removed when deemed medical [sic] fit for full time duties.
Further, the certificate was expressed in qualified terms, namely that it was ‘based on the information available to me’.
68. The reference to ‘anxiety and reactive depression’, ‘variation of old allegation’ and ‘recreation of initial allegations of 2004’ suggest that Dr Ng believed the claim related to a continuation of the existing claim, rather than a claim for a new condition. This is reinforced by the statement in the certificate that ‘the injury [as diagnosed] stated as occurring … over months in 2005’. No more recent date of injury for any new condition is provided.
69. Dr Curtotti reported on 12 July 2010 that Mr Polleycutt said the date of injury was 15 May 2006, not 1 January 2007 as listed on his workers’ compensation form. The chosen date was the date Mr Polleycutt alleged the Agency removed all work from him since he was said to be on an ‘education program’ and from that date Mr Polleycutt claimed he was given little work to do. Dr Curtotti was not treating Mr Polleycutt in 2006.
70. Mr Polleycutt in his statement had also said about the date of injury that he first ‘legally noticed I was ill due to a new incident on 1 January 2007, the date I received legal advice on the issue’. At the hearing, when asked by counsel for Comcare about that date, being a public holiday, Mr Polleycutt responded: ‘But that date was just a date put in’ and he agreed that it ‘has no significance whatsoever’. Mr Polleycutt’s evidence at the hearing was that he was ‘not saying [his] condition got worse or [he] suffered a new condition’. Rather, he was just saying ‘I was told I had to fill out a form if I wanted my compensation to start again’.
71. The Tribunal finds that the deemed date of any new injury was not 1 January 2007. As put by Dr Knox at the hearing, that date was ‘more an administrative date’. Neither is 14 June 2007, the date Mr Polleycutt saw Dr Ng, the deemed date of the injury since it is clear from the medical certificate that Dr Ng considered the certificate was for unfitness to work as a result of the existing injury rather than being due to a new injury.
72. The Tribunal notes that Mr Polleycutt was notified of the first Code of Conduct investigation on 30 May 2006, and from that date he was almost continuously certified unfit to work in the Agency. The findings of that investigation were made on 1 August 2006. However, Mr Polleycutt’s dosage of Zoloft was not increased to 100mg daily until November 2006 and it was not until 21 February 2007 that he was referred for a mental health assessment, suggesting that these events did not precipitate reactive depression.
73. The Tribunal also notes that Mr Polleycutt was informed on 28 June 2007 of the findings by the Merit Protection Commissioner but these were unlikely to have triggered a new condition since they held that Mr Polleycutt’s transgressions were minor in nature.
74. Dr Glaser’s reports in 2007 indicated Mr Polleycutt was free of any psychiatric disorder from ‘around the beginning of 2007’, an opinion he qualified in his 12 December report saying that, by September 2006, Mr Polleycutt had recovered sufficiently to obtain a position with the ABS, and he made no findings as to any new condition.
75. Mr Polleycutt was able to be employed from March 2007 and there is medical evidence that he had recovered from his previous psychiatric condition by September 2006. There is no evidence as at 30 May 2006 or November 2006 which suggests that on any of these dates he was suffering from a ‘disease’ which was of such significance as to be regarded as ‘outside the boundaries of normal mental functioning and behaviour’.[5] Although Mr Polleycutt was referred for mental health assessment in February 2007, the report indicates no serious new disorder at that time. In addition, although his dose of Zoloft was increased to 100mg daily from November 2006, Mr Polleycutt had ceased taking the antidepressant in early 2007.
[5] Comcare v Mooi (1996) 42 ALD 495 at 499.
76. Mr Polleycutt’s evidence combined with the certificate of Dr Ng also cast doubt on whether he was making a claim for a new injury or for a continuation of his earlier accepted injury. As a result, and in view of the discussion which follows, the Tribunal finds that there is insufficient evidence that Mr Polleycutt was suffering a new ‘injury’ being a ‘disease’ prior to March 2007 or July 2007 when he was again on Zoloft at 100mg daily.
77. So the earliest date of injury is likely to have been July 2007. However, for the purposes of the discussion which follows, the Tribunal regards a date on or after July 2007 as a possible commencement date for any possible new injury.
New injury?
78. Section 5A of the Act defines an ‘injury’, as relevant, as being ‘an injury (other than a disease) suffered by an employee that is a physical or mental injury arising out of, or in the course of, the employee’s employment’. Section 5B defines a ‘disease’ as being an ailment or an aggravation of an ailment. An ‘ailment’ is defined in section 4(1) of the Act as being ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. An ‘aggravation’ of a condition is defined as including an ‘acceleration or recurrence’ of that condition.[6] The issue is whether on or after July 2007 Mr Polleycutt was suffering a new psychiatric disorder which can be categorised as a ‘disease’ and hence an ‘injury’.
[6] Act s 4(1) – definition of aggravation.
79. The doctors who examined Mr Polleycutt around the time of the initial accepted injury included Dr Ng who found he was suffering from a ‘stress reaction’; Dr Saboisky who diagnosed an adjustment disorder; and Dr George who, on his initial examination, also diagnosed an adjustment disorder. While there are some minor differences in terminology and identified symptoms, these diagnoses are consistent with each other and with the description of the accepted ailment.
80. Subsequently, there was a divergence of expert opinion. Dr George has maintained his later view of October 2005 that Mr Polleycutt’s condition is an organic brain disorder caused by his tumours and the associated surgery. Dr Knox is of the opinion that he suffers primarily from a non-organic psychiatric disorder but has not, in his written report, settled on a particular condition. He states that Mr Polleycutt qualifies for two conditions. The Tribunal finds, however, based on the accepted criteria for the two disorders, that such a finding is not open. The description of Generalised Anxiety Disorder in DSM-IV excludes a co-existing diagnosis of Adjustment Disorder where the same symptoms are in issue.
81. In oral evidence at the hearing, the question of the specific nature of any present ailment did not arise. The doctors agreed that there was no new condition. As a result they gave evidence on the basis that Mr Polleycutt, if anything, might possibly be suffering an aggravation of a pre-existing condition, namely, ‘adjustment reaction with anxious mood’. However, they put it no higher than that.
82. A discussion of the other medical evidence follows. The evidence from Mr Polleycutt and Dr Ng concerning the deemed date of any new injury indicates considerable doubt about whether there is a genuine claim for any new injury. That doubt was reinforced by the outcomes of the evidence from the medical experts at the hearing.
83. At the hearing, Dr Knox summarised the views of the four medical experts who gave concurrent evidence and said that ‘all agreed – that there was not likely to be any major new events in ’07 that could lead to a new injury’. That was consistent with Dr Sutton’s report of 7 September 2010 which stated ‘There is no evidence for any psychosocial event in 2007 causing any perturbation’ of his psychological or psychiatric condition. It is also consistent with the reports of Dr Glaser that Mr Polleycutt had recovered and was not exhibiting any symptoms of his earlier disorder in 2007, and of Mr O’Brien, in his report of 13 November 2008, that by that date, there was no ‘evidence of Depression or Anxiety that warrant immediate treatment’.
84. In light of this evidence, which the Tribunal accepts as appropriate, and of the earlier discussion indicating an absence of any evidence to show Mr Polleycutt was suffering any new ‘injury’ prior to July 2007, the Tribunal finds that Mr Polleycutt did not suffer a new injury on or after July 2007.
Aggravation of existing injury
85. The final issue is whether Mr Polleycutt suffered an aggravation of his accepted injury. According to the consent decision by the Tribunal in April 2008, that condition was found to no longer warrant compensation from 18 October 2007, a possibility referred to by the evidence of the medical experts at the hearing.
86. Under the Act compensation is available for an ‘aggravation’ of an ‘injury’, including a ‘disease’, provided the aggravation ‘was contributed to, to a significant degree, by the employee’s employment’.[7] To a ‘significant degree’ means ‘a degree that is substantially more than material’.[8]
[7] Act s 5B(1).
[8] Act s 5B(3).
87. An aggravation of an injury means that it was made worse, not that it simply became worse.[9] As Hill J said in Casarotto v Australian Postal Commission:
[T]he ordinary English meaning of the words ‘aggravation’ and ‘acceleration’, [is] namely that ‘aggravation’ connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.[10]
[9] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593.
[10] Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 327.
88. A material contribution has been held to require a contribution ‘In a material degree; substantially, considerably’.[11] That meaning of ‘material’ indicates that the employment contribution must be of considerable substance or moment to fall within the statutory and judicial tests of ‘significant degree’ and hence to fall within the statutory expression ‘substantially more than material’.
[11] Comcare v Sahu-Khan (2007) 156 FCR 536 at 542.
89. The Tribunal notes that Comcare has contended that there was little, if any evidence, to suggest that Mr Polleycutt suffered an aggravation or an acceleration of any previous injury, in the period post April 2008. Again, the reference to ‘April 2008’ reflects the date of the Tribunal’s earlier consent decision in this matter. The Tribunal prefers to consider the issue from 19 October 2007 since it was from that month that Comcare, consistent with the Tribunal’s consent decision, ceased payment of medical expenses and incapacity payments for the accepted condition, and decided that Mr Polleycutt had recovered from the earlier symptoms of the condition.
90. The condition accepted by Comcare on 3 June 2005 was an ‘adjustment reaction with anxious mood’. Accordingly, if there is an aggravation it is of that condition.
91. The Tribunal has noted that the nature of the possible diagnosed conditions appears to preclude such a finding. The Textbook of Psychiatry,[12] an authoritative general psychiatry text, described an adjustment disorder as follows:
Adjustment disorder is a stress related phenomenon in which the stressor has precipitated maladaptation and symptoms that are time limited until the stressor is removed or a new state of adaptation has occurred
[12] Robert E Hales, MD, MA, Stuart Yudofsky, MD (eds), Textbook of Psychiatry (5th ed, American Psychiatric Publishing, 2008), 758.
92. The reference to ‘a new state of adaptation’ reflects the fact that an adjustment disorder may be due to a maladaptive response by an individual to a stressor or stressors, which can be alleviated if the person develops a more appropriate response which avoids the negative symptoms which are characterised as the adjustment disorder.
93. Additionally, DMS-IV, the widely accepted manual of psychiatric disorders, describes the relevant criteria for adjustment disorder as follows:
A. The development of emotional or behavioural symptoms in response to an identified stressor(s) occurring within 3 months of the onset of the stressor(s).
B. These symptoms or behaviours are clinically significant as evidenced by either of the following:
(1) Marked distress that is in excess of what would be expected of the stressor.
(2) Significant impairment in social or occupational (academic) functioning
C. The stress related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a pre-existing Axis I or Axis II disorder.
…
E. Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months
94. The evidence in this matter indicated an initial stressor due to the events in 2004 which caused an adjustment disorder. However, that disorder had been resolved according to the predominant medical evidence which the Tribunal has accepted as correct. In his report of 13 November 2008, Mr O’Brien said he believed that Mr Polleycutt had by then ‘achieved considerable emotional stability’ and at that stage ‘the only risk to your Mental Health is the extended period of unemployment’.
95. Dr Sutton, in his report of 7 September 2010 stated ‘My test observations do not indicate either a new disorder or are they evidence for adjustment reaction with anxious mood’.
96. Dr Glaser’s evidence from his reports at the end of 2007, discussed earlier, was that Mr Polleycutt had recovered from his earlier condition by about September 2006 and was not exhibiting evidence of any further psychiatric condition. Dr Lark’s evidence in his report of 11 October 2007 supports this assessment.
97. The Tribunal accepts on the evidence that Mr Polleycutt does suffer from a level of depression and of anxiety. However, there was no agreement that the condition could be described as an ‘adjustment reaction with anxious mood’. The medical experts, and the Tribunal accepts their view, expressly discounted any event in 2007 or early 2008 which could have precipitated a new adjustment disorder. The nature of such a disorder also indicates that it is not amenable to being aggravated once it has resolved. In any event, any such condition, to be an adjustment disorder, would need to meet the criteria in DSM-IV and to be of sufficient severity to be considered ‘outside the boundaries of normal mental functioning and behaviour’.[13]
[13] Comcare v Mooi (1996) 69 FCR 439.
98. There is some evidence from Dr Curtotti and Dr Knox indicating that Mr Polleycutt was suffering a disorder from the first half of 2008. However, the Tribunal does not have sufficient information on the nature of that condition to be satisfied of the diagnosis of the condition, particularly in light of the medical evidence which it has accepted that no new condition had arisen which would meet the test of ‘injury’ in the Act. The Tribunal, accordingly has found that there was no aggravation or acceleration of Mr Polleycutt’s adjustment disorder with anxiety.
99. If the Tribunal is wrong in this conclusion, the Tribunal has considered the remaining issues.
Whether Mr Polleycutt’s employment contributed to the condition to a significant degree
100. Even if the Tribunal concluded that Mr Polleycutt had suffered an aggravation of an accepted psychiatric condition since October 2007, it must be established that that condition was contributed to, to a significant degree, by his workplace and not by other factors in his life.
101. The task of the Tribunal is not to balance psychosocial and other medical factors against work-related factors. Its function is to decide in accordance with the statutory test in section 5B(1) of the Act whether the disease or ailment suffered by Mr Polleycutt ‘was contributed to, to a significant degree,’ by his employment.
102. In Re Carty and Australian Postal Corporation [2010] AATA 47, Senior Member Isenberg noted that the test relating to the term ‘in a material degree’ in the pre-2007 Act was discussed by Finn J in Comcare v Sahu-Kahn (2007) 156 FCR 536; where it was concluded:
For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question, only that the employment contributes to the ailment in a significant degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.[14]
[14] Re Carty and Australian Postal Corporation [2010] AATA 47 at [39].
103. In Re Carpenter and Comcare (2010) 116 ALD 190, Deputy President Jarvis, in discussion of related cases including Weigand v Comcare (2002) 72 ALD 795 noted:
…it does not matter that other factors not related to employment contribute to the claimed disease… [W]hat is required by the definition of ‘disease’ in the SRC Act is that the relevant ailment or aggravation must be contributed to by employment ‘in a material’ degree. This is a question of fact that must be determined on the evidence before me.[15]
[15] Re Carpenter and Comcare (2010) 116 ALD 190 at 200.
104. Both cases related to the ‘material’ degree, rather than the current ‘to a significant degree’ requirement. Nonetheless, the reasoning applies equally to the present test in section 5B(1). In other words it is not appropriate for the purposes of section 5B of the Act to attempt to weigh up the respective contributions of work-related and non work-related stressors on an individual and to say which has the greater impact, that being the determinant of liability. The statutory imperative is that, while taking into account the totality of factors, the focus of the inquiry under section 5(B) of the Act remains on deciding whether the injury suffered ‘was contributed to, to a significant degree’ by the employee’s employment.
105. Mr Polleycutt was not working at the Agency, in effect, from May 2006. Nonetheless, the clinical medical records of Mr Polleycutt’s medical practitioners continued to refer to workplace-generated stresses. Dr Ng’s medical certificates for the periods between 6 June 2007 to 31 December 2007 note that the causes of his ‘anxiety and reactive depression’ were described as:
… variation of old allegations presented to him on 30/05/07. Meaningful duties removed when deemed medical [sic] fit for full time duties. Also noted issues brought up by Mr Polleycutt impairing his return to work on two occasions … despite correspondence from Comcare to say otherwise, Eric is adamant he has been treated unjustly in his return to work attempts. If this is the case, Eric is unfit to return to work under these conditions.….
106. The Tribunal notes the qualified nature of the terms of the certificate and that this certificate appeared to do no more than quote the information in earlier certificates. The Tribunal also notes that after June 2007, Dr Ng apparently only saw Mr Polleycutt on the one occasion of 16 June 2008.
107. The clinical notes of Dr Rasaratnam for 13 October 2008, 6 December 2008, 6 February 2009, 31 March 2009, and 3 June 2009 refer almost equally to court cases, custody and financial issues as well as to the loss by Mr Polleycutt of his job, his Comcare claim and problems with his ex-employer.
108. Dr Knox was of the view that Mr Polleycutt’s ‘non-work-related stressors, particularly the Family court matter surrounding access to the children … do not alter the fact that Mr Polleycutt has continued to have … material level workplace-related stressors to the present time’. In his view the stressors were ‘significant’. He also noted that ‘the problems with his ex-wife and his physical health problems did not have the valency of his highly disruptive experiences with the flow-on events of his DAFF difficulties’. As he said at the hearing:
…the workplace … was a major issue for him … and that problem never went away. And when he tried to resolve it by going to the Bureau of Statistics .. that got administratively shut down by [DAFF] which … was a major disappointment and a major obstacle in this man’s recovery.
109. Dr Knox’s view was that since Mr Polleycutt’s cognitive function, tested in 2006 and again in 2010, had not progressively deteriorated due to the effects of the two operations for his hemangioblastomas, any acceleration or aggravation of Mr Polleycutt’s condition must be due to a combination of the workplace and the psychosocial factors which his report had acknowledged. In his view, the workplace was a major contributor to Mr Polleycutt’s anxiety and depression. In support of that conclusion he noted that when Mr Polleycutt ceased attending the Agency from September 2006, that had led to ‘some modest improvements’ in his psychological condition.
110. Dr George’s view, by contrast, was that Mr Polleycutt’s initial adjustment disorder and reactive depression did not recur after 2005. At the same time he acknowledged that Mr Polleycutt continued to suffer some level of anxiety and depression. In his view, however, this was ‘related to multiple psychosocial issues’, namely, the breakdown of his marriage, custody issues of his children, property settlements, financial strains, a new relationship and medical issues. As Dr George said these psychosocial factors were ‘significant in generating anxiety or depression in their own right’, and were ‘more predominant in the development of anxiety and depression than … workplace issues’.
111. Mr O’Brien, in his report and at the hearing, maintained the view that the workplace was the predominant cause of the stress on Mr Polleycutt.
112. The medical evidence is equally divided about the causal effects of Mr Polleycutt’s anxiety and depression; Dr Sutton and Dr George giving predominant emphasis to the impact of Mr Polleycutt’s cognitive deficits; while the opinions of Mr O’Brien and Dr Knox were that it was the workplace which was the main cause of Mr Polleycutt’s psychiatric conditions. Their evidence did not focus specifically on the issue of the timing of any aggravation or acceleration of the conditions. Given this difference in emphasis, the Tribunal considers in more detail the other factors which may have contributed to an aggravation or acceleration of Mr Polleycutt’s conditions.
Medical conditions which are not work-caused
Brain tumours
113. Mr Polleycutt suffers from the development of cerebellar hemangioblastomas, a benign form of brain tumour causing headaches and vomiting, that was first diagnosed in 1993. Mr Polleycutt had one tumour removed in 1993, and a second, by keyhole surgery, in June 2007.
114. Following the second surgery for the condition in June 2007, Dr Gautam Khurana, a neurosurgeon at The Canberra Hospital, in a letter of 29 August 2007, noted My Polleycutt had made ‘a complete neurological recovery’.
115. Although there is a reference to ‘headache’ in Dr Rasaratnam’s clinical notes of 13 November 2007, and Dr Curtotti’s notes of 23 January 2009, there is no further evidence to suggest these were related to the tumours.
116. So although the condition may, through the headaches and nausea it engendered, have had a measurable effect on Mr Polleycutt prior to that date, by October 2007, those effects had disappeared. On balance, the Tribunal is satisfied that from October 2007, Mr Polleycutt was not suffering from symptoms of headaches and nausea due to a brain tumour.
117. There is medical evidence, however, that the tumours and the aftermath of the surgery have caused some degree of cognitive dysfunction. There is a difference of expert opinion on the level of that impact.
118. At the hearing, Dr George, Dr Knox and Dr Sutton had agreed that the hemangioblastoma resulted in ‘significant organic impairment’ which caused verbal and memory problems. Dr Sutton considered it would ‘prove disruptive to someone of his level of functioning’ but that he may have developed strategies to cope in the workplace. However, all the medical experts agreed that it was likely that a person with such a condition would cope less well with stress. Dr Sutton noted the absence of any causal connection with Mr Polleycutt’s workplace. As he said ‘There is no neuropsychological issue caused by his workplace experiences’.
119. On the evidence, the subtle cognitive effects caused by the operations for Mr Polleycutt’s hemangioblastomas continued post-operatively. It is these which led the four medical experts at the hearing to conclude that management of the condition was likely to have placed stress on Mr Polleycutt, particularly in the workplace. The Tribunal so finds.
120. Nonetheless, as the hemangioblastoma condition itself is not work-related, any impact of the condition on Mr Polleycutt’s functioning is an extraneous factor that could have contributed to his anxiety and depression.
Carpal tunnel syndrome
121. Mr Polleycutt was diagnosed with a possible carpal tunnel syndrome in his right hand following a nerve conduction study at The Canberra Hospital Neurology Department on 3 March 2008. The report was of ‘mild severity’.
122. Dr Rasaratnam’s clinical notes for March, April and May 2008 note Mr Polleycutt ‘has carpal tunnel syndrome’ and noted instances of hand pain.
123. At a consultation on 9 June 2010, Dr Curtotti noted that Mr Polleycutt ‘is not really troubled by the symptoms apart from some intermittent tingling/numbness on the right hand’.
124. In summary, although it is clear from these records that in the first half of 2008 Mr Polleycutt’s carpal tunnel syndrome was of some concern, by the second part of that year and subsequently, the condition has not troubled him to any significant extent.
Other medical conditions
125. Records of The Canberra Hospital indicate some evidence of osteoarthritis of the lumbar spine. There was also evidence of spinal lesion, but this was diagnosed as an ‘unremarkable’ haemangioma, not a hemangioblastoma and it was said to be of minimal significance.
126. Around October 2008, Mr Polleycutt had a concern about a sexually transmitted disease. He was tested several times for the possibility of such a disease between late October 2008 until April 2009, when negative results were confirmed.
Summary
127. In summary, Mr Polleycutt was facing a number of medical issues not due to work which could cumulatively contribute to his level of distress. The carpal tunnel syndrome was not recorded until March 2008 and appeared to have subsided in importance by the second half of that year. His osteoarthritis always appeared to be of minor significance, as too were the possible lesions on his spine. The sexually transmitted disease led to a heightened level of anxiety on Mr Polleycutt’s part for about six months from October 2008. Mr Polleycutt’s brain tumours on the evidence also led to a degree of cognitive dysfunction which contributed to his stress, including in the workplace.
Other psychosocial factors
128. Alongside these medical issues Mr Polleycutt was experiencing financial difficulties since Comcare had ceased paying him workers’ compensation in November 2006. It was not until April 2008, following the consent decision by the Tribunal, that payment recommenced. His financial difficulties had led Mr Polleycutt to seek employment outside the Agency, but it was not until March 2007 that this work with the ABS commenced. It was also work at a lower level than his former position. Mr Polleycutt’s evidence was that his financial problems continued despite this employment. That work ceased in 2008. He has been on Centrelink benefits on occasions subsequently.
129. Mr Polleycutt was also involved in protracted legal proceedings in relation to the breakdown of his marriage. He and his wife separated in July 2006. Initially the couple shared equally the care of their two children in accordance with a consent agreement and the arrangement appeared to be a reasonably amicable one.
130. However, in April 2007 his former wife applied to have 60 per cent of the shared care arrangement, to review the property order and to have parental responsibility for the two children. The couple eventually divorced on 24 September 2007. Before then the relationship had become acrimonious. Police were regularly involved. From June 2007 Domestic Violence Orders were sought by both parties against each other and by the parents of his former wife. There is copious evidence from the listed material presented to the Tribunal of the history of the interactions and the problems over custody of the children.
131. As evidence of the stress on Mr Polleycutt this caused, the Tribunal notes Mr Polleycutt attended 15 counselling sessions with ParentLine between September 2007 and May 2008. It can be assumed that these were predominantly relating to family issues, given the nature of the ParentLine service, although there is some evidence that legal and work-related matters were also discussed.
132. In 2007 Mr Polleycutt had also filed an application in the ACT Small Claims Court seeking a refund of monies paid to his ex-wife and her parents. The applications involved multiple hearing days and were finalised in February 2008. He was also involved in proceedings against the Child Support Agency which commenced on 23 September 2007 and were only finalised on 31 March 2009. Mr Polleycutt represented himself for both proceedings.
133. The conclusion which can be drawn from the length of the disputes with his ex-wife, the multiplicity of proceedings in which he was involved, and the fact that, apart from a period in the first half of 2007 when he ceased taking the anti-depressant, the proceedings coincided with his increase in the dosage of Zoloft and his Parentline counselling, is that these were matters causing considerable and understandable stress in Mr Polleycutt’s life. Accordingly, these events can be seen to have had a significant impact on Mr Polleycutt from April 2007 onwards.
Work-related factors
134. That leaves for consideration the impact of work-related factors on the aggravation or acceleration of Mr Polleycutt’s anxiety and depression. The Tribunal notes that there is a need to identify some event or cumulation of events which triggered an aggravation or acceleration. The Tribunal has relied on the evidence of the change in dosage of his antidepressant as an indicator of when that aggravation or acceleration occurred.
135. The history of his anti-depressant medication indicates that Mr Polleycutt was not exhibiting marked deterioration of his depressive disorders until at least early 2009. Since Mr Polleycutt effectively ceased working for the Agency in mid-2006, there is a question of whether the workplace was aggravating his depressive conditions prior to 2009.
136. There are work-related factors which continued after mid-2006. In particular, the investigation by the Agency into his earlier conduct commenced in May 2006. The report of the Agency, with its findings of breach of the Code of Conduct, was received by Mr Polleycutt in August 2006. The subsequent review by the Merit Protection Commissioner, which commenced in February 2007, was concluded in June 2007. So for the period June 2006 to June 2007, Mr Polleycutt was involved in two reviews of his conduct in the Agency in late 2004. These processes were clearly work-related. Since, however, between June or September 2006 to July 2007 Dr Lark and Dr Glaser considered that Mr Polleycutt had recovered from his earlier psychiatric condition, and there is no evidence of any new condition of that kind, it appears that the impact of these inquiries on his psychological state can be discounted.
137. Mr Polleycutt had been advised by the Agency on 25 February 2008 that his employment was terminated. He objected to that decision and a negotiated outcome did not occur until the second half of 2008. Mr Polleycutt also brought unfair dismissal proceedings against the ABS late in 2009 or early 2010 and these were not settled until later in 2010.
138. The demands of managing these work-related claims were an added pressure on Mr Polleycutt from June 2006 until the second half of 2010. However, in terms of an aggravation or acceleration of his condition, the Tribunal notes that the settlement with the Agency occurred prior to the increase in his symptoms in early 2009.
139. At the same time, the action against the ABS did coincide with Mr Polleycutt’s heightened need for medication for his anxiety and depression. There was evidence from the clinical records of Dr Curtotti of an increase in his anxiety at that time. However, that evidence refers to ‘financial pressures; court cases, looking after children, losing job, had Comcare claim’, that is, a constellation of factors which were recorded by Dr Curtotti as contributing to his condition and which did not include his action against the ABS. In addition, since his employment at the ABS is not the employment which is the subject of the claim, it is to be categorised as another psychosocial factor for the purpose of this application.
Summary
140. An overview of the significant factors in Mr Polleycutt’s life from October 2007 onwards indicates that, although some of his medical conditions did not cause him considerable stress, the Tribunal finds his brain tumours, and his possible sexually transmitted disease, financial pressures, the bitter disputes with his ex-wife, the issues around the custody of his children, and the multiple proceedings this engendered, contributed cumulatively and significantly to any stress-related disorder he may have been suffering.
141. However, as the earlier discussion indicated, the focus at law must be on work-related factors. Despite the two wrongful dismissal claims and other work-related irritations and its stressful impact, the Tribunal finds that these events were of insufficient moment to meet the statutory test. The Tribunal notes that Mr Polleycutt ceased attending his workplace in September 2006 and according to Dr Knox, Dr Lark and Dr Glaser, and by the history of his ingestion of Zoloft, his mood from that time had improved.
142. So although the medical evidence is ambivalent on the respective causal impact of his medical conditions, and there was a deterioration of his anxiety and depression in early 2009, when the non work-related factors are considered the Tribunal is unable to be satisfied that it was his workplace which played a significant contributory role in causing Mr Polleycutt’s anxiety and depression from the middle of 2007 onwards and in particular, from early 2009. So although the work-related factors were causal factors, they do not reach the level required by the ‘significant degree’ test discussed earlier coupled with the courts’ test of materiality, so as to conclude that it was work-related matters which caused any aggravation or acceleration of his anxiety and depression.
143. The decision under review is affirmed.
I certify that the 143 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Dr Hughson, Member
Signed: .................................[sgd]............................................
Caitlin Baillie, AssociateDates of Hearing 23-24 June 2011
Date of Decision 17 August 2011Counsel for the Applicant Andrew Muller
Solicitor for the Applicant Bill Redpath, Nicholl and Co LawyersCounsel for the Respondent Ben Dube
Solicitor for the Respondent Loretta Tolland, Australian Government Solicitor
0
8
0