Power and Comcare
[2006] AATA 125
•15 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 125
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/392
GENERAL ADMINISTRATIVE DIVISION ) Re PATRICIA POWER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member
Dr P Staer, MemberDate15 February 2006
PlacePerth
Decision The Tribunal affirms the decision under review. ..........(sgd S Penglis)...........................
Senior Member
CATCHWORDS
COMPENSATION - Commonwealth Employee - death by cardial Infraction - held not to have been contributed to in a material degree by employment – discussion of whether psychosocial factors, particularly stress, caused or contributed to death
LEGISLATION
Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) Sections 4(1), 17.
CASES
Re Welsford v Commonwealth Banking Corporation (1984) 1AAR 42
Re Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Re O’Connor v Australia Post (1986) AWCCD 73-714
Re Commonwealth Scientific and Industrial Research Organisation v Basinski (1987) AWCCD 73-826.
Re Jegatheeswaran v Comcare [2005] AATA 1096.
REASONS FOR DECISION
15 February 2006 Mr S Penglis, Senior Member
Dr P Staer, MemberINTRODUCTION
1. Dr Holger Rumpff was born in Germany on 10 May 1952.
2. He married the applicant in 1982 and migrated to Australia in 1984.
3. There is one child of the marriage between Dr Rumpff and the applicant: Tilke Johanna was born on 27 November 1985.
4. Along with the applicant and his then baby daughter, Dr Rumpff moved to Christmas Island in 1986, working as a freelance consultant for the Department of Environment.
5. From 1992, Dr Rumpff was employed full time on Christmas Island as an Environmental Officer with the Commonwealth Department of Environment (later known as Parks Australia).
6. In 1995, Dr Rumpff told the applicant that he “had a drinking problem that had been going on for a while and that he wanted to do something about it”.
7. In around mid-1996, the Department of Environment underwent a restructure, as a result of which Dr Rumpff became answerable to the Head of the newly created National Resources Section, Paul Meek.
8. Dr Rumpff found it difficult to adjust to the restructure. His relationship with the applicant was also deteriorating. To deal with these difficulties, Dr Rumpff’s consumption of alcohol increased.
9. In January 1998, the applicant temporarily left Christmas Island and moved to Sydney to be with Tilke (who was attending school there).
10. In July 1998, Dr Rumpff was medically evacuated from Christmas Island. On the day of his flight he was found by his colleagues in a depressed and inebriated state at home after failing to attend a farewell dinner. They took him to the airport to ensure that he boarded the flight for Perth.
11. Dr Rumpff was admitted to Sir Charles Gairdner Hospital between 16 July and 8 August 1998 where his treating psychiatrist diagnosed him as suffering from adjustment reaction with anxiety/depressive features.
12. On 30 July 1998, Dr Rumpff was assessed to determine whether he was fit to return to work. Dr Dennis, the occupational physician who assessed him, recorded the factors contributing to Dr Rumpff’s condition as the breakdown of his marriage, issues at work, a housing dispute with Christmas Island Administration and financial concerns. Dr Dennis suggested a temporary transfer to Canberra to enable Dr Rumpff to access support services which were not available on Christmas Island and so that he could be closer to his family, namely, the applicant and their daughter.
13. In August 1998, Dr Rumpff returned to Christmas Island to pack his things to take to Canberra. He was hospitalised on Christmas Island until departing for Canberra.
14. On 12 September 1998, Dr Rumpff consulted Dr Adele Hanstein and gave her a history of hypertension and depressive illness. He was diagnosed with elevated blood pressure and tachycardia.
15. Early in 1999, Tilke moved to Perth to attend school and the applicant returned to Christmas Island. Dr Rumpff remained in Canberra.
16. In March 1999, Dr Rumpff had another episode of binge drinking. He reported to his reviewing doctor that he felt lonely in Canberra following the departure of the applicant and his daughter.
17. In April 1999, Dr Rumpff attended a Dr Feltham in Canberra. Dr Feltham noted that Dr Rumpff no longer required treatment for hypertension and had not been binge drinking since March of that year. He noted that Dr Rumpff’s liver function tests were normal and that his rehabilitation was progressing well. Dr Feltham recommended that “at some point Dr Rumpff must be allowed to return to his former position and one cannot reasonably delay much longer”. Dr Feltham recommended a transfer back to his former position in six weeks time following a meeting of all stakeholders in Dr Rumpff’s rehabilitation.
18. That meeting took place on 30 July 1999. At that meeting it was agreed that Dr Rumpff would return to Christmas Island within four months subject to adherence to a rehabilitation program, satisfactory attendance and work performance, review by Dr Feltham in November and Dr Feltham being satisfied as to the availability of medical facilities on Christmas Island.
19. All went well until Dr Rumpff suffered a relapse in September 1999.
20. From November 1999, Dr Rumpff took 5 months sick and recreation leave and returned to Germany.
21. Upon his return to Australia in March 2000, Dr Rumpff was hospitalised due to alcohol-related matters.
22. Dr Rumpff was due to restart work on 15 March 2000; however, he did not do so. On the following day he was admitted to a detoxification clinic in Canberra.
23. On 22 March 2000, Dr Rumpff was hand delivered a letter of warning from his employer regarding non-performance of duties.
24. On 28 March 2000, Dr Rumpff suffered a heart attack in his hotel room in Canberra, from which he died. He was 47 years of age.
25. The applicant and her daughter were dependants of Dr Rumpff before and at the time of his death.
THE APPLICATION
26. The applicant applies to the Tribunal (in her own right as the wife of the late Dr Rumpff and on behalf their daughter), to review the decision by the respondent to refuse a claim by the applicant (for herself and her daughter) for compensation pursuant to s 17 (3) of the Safety, Rehabilitation and Compensation Act (1988) (the SRC Act).
27. Section 17 of the SRC Act provides that, subject to s 16, 17 and 18, if an employee dies leaving dependants some or all of whom were, on the date of his death, wholly dependant on the employee, the respondent is liable to pay compensation in respect of the injury of $120,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all those dependants.
28. Section 17 (1) provides that s 17 “applies where an injury to an employee results in death”.
29. Accordingly, the entitlement given to dependants by s 17 (3) arises only “where an injury to an employee results in death”.
30. It was not disputed before the Tribunal that the applicant and her daughter were dependants of Dr Rumpff who were “wholly dependant upon him” at the date of Dr Rumpff’s death.
31. Rather, the issue before the Tribunal whether or not an “injury” to Dr Rumpff resulted in his death.
32. Section 4 (1) of the SRC Act defines “injury” to mean
“(a) a disease suffered by an employee;
(b) …
(c) …
but does not include such disease … suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
33. The word “disease” is itself defined in s 4 (1) of the SRC Act to mean :
“(a) any ailment suffered by an employee: or
(b)the aggravation of any such ailment,
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
The Applicant’s Contentions
34. The crux of the applicant’s contentions is that Dr Rumpff suffered a “disease”, namely “alcoholism and/or hypertension and/or depression or aggravation of same that was contributed in a material degree by his employment by Parks Australia from around 1995 onwards”, and that this resulted in Dr Rumpff suffering the myocardial infarction that killed him. The reference to hypertension was subsequently abandoned during the course of the hearing.
The Respondent’s Contentions
35. The crux of the respondent’s contentions is as follows:
· Dr Rumpff’s alcoholism and psychiatric condition were caused by factors quite separate from his employment.
· To the extent that the Tribunal finds that Dr Rumpff’s alcoholism and psychiatric condition was materially contributed to by his employment, that contribution arose out of a failure to obtain a promotion and reasonable disciplinary action and therefore falls within the exception to the definition of “injury” in s 4 (1) of the SRC Act.
· Alternatively, if the Tribunal finds that Dr Rumpff’s alcoholism and psychiatric condition were materially contributed to by his employment and was not the result of a failure to obtain a promotion and reasonable disciplinary action, no medical evidence supported a connection between Dr Rumpff’s employment and his death by myocardial infarction. In other words, Dr Rumpff’s “injury” did not “result(s) in death” within the meaning of s 17 (1) of the SRC Act.
Did Dr Rumpff have an “injury” within the meaning of s 4 (1) of the SRC Act?
36. The only witness of fact who gave evidence in support of the application was the applicant herself. The applicant gave evidence that in 1995 she found an empty vodka bottle in a shoulder bag. She confronted Dr Rumpff about it. He broke down and told her he had a drinking problem.
37. The applicant gave evidence that, around the same time, Dr Rumpff would come home and complain about the way things were being managed by John De Koning, the new Conservator on the Island, and “the changing style of management”. At around that time, “a staff restructuring programme was mooted and then developed”. This was followed by “an overall review, which included staffing”.
38. The applicant gave evidence that the proposed restructure did cause some anxiety, particularly with (Dr Rumpff) and another staff member, “both of whom intended to apply for a new position at the Conservator’s existing level, Level 6”. The applicant gave evidence of some incidents between Mr De Koning and Dr Rumpff. She said that Dr Rumpff “was unsettled by the restructuring process and review negotiations that continued through 1995”. She also stated that Dr Rumpff “expressed dissatisfaction during this year about the way ANCA on the Island was being managed, the lack of team spirit, lack of consultation, and lack of action by ANCA on environmental matters and a perceived diminished perception of National Parks in the community”.
39. The applicant gave evidence that the restructured positions were advertised in January 1996, with interviews held in about March. She said Dr Rumpff was unsuccessful in his application for the Level 6 position, but succeeded in securing a lessor (Level 4) position. The Level 6 position was awarded to Mr Paul Meek.
40. The applicant said “as a result of the restructure (Dr Rumpff) lost a lot of autonomy and the lines of reporting became more hierarchical, with (Dr Rumpff) having to report everything through Paul Meek”.
41. The applicant gave evidence that during this period Dr Rumpff “was complaining … constantly about the dysfunctional nature of the work place and tensions between various staff members. What had been a team seemed to turn into a hierarchy where inclusion in or exclusion from the decisions, meetings and general working of National Parks depended upon rank”.
42. The applicant said that Dr Rumpff was “scathing” of what he considered to be “cosmetic” changes that were made and “was frustrated by the lack of real substance and misinformation that he found had been voiced in meetings he was not required to attend”.
43. In November 1996, Mr De Koning was replaced by David Murray as Conservator. The applicant said that her “memory of this period is of (Dr Rumpff) coming home time and again frustrated by ill-informed decisions that he perceived to be detrimental to the Island”. The applicant said that Dr Rumpff was “scathing of what he saw was David Murray’s incompetence and Paul Meek’s raging ego”. The applicant said that she could see “that (Dr Rumpff) was not contributing as he used to. He did not appear to be as focused on his work and was going to work with a high level of anxiety about the work place situation. ….(Dr Rumpff) felt he was being put-down and excluded and sidelined”.
44. Mr Murray, Mr Meek and another former work colleague of Dr Rumpff, (Mr Haydock) gave evidence on behalf of the respondent. Their evidence was to reject the aspersions cast against Mr Murray and Mr Meek in the applicant’s evidence. Mr Meek and Mr Murray gave evidence that they introduced structured management where it had not previously existed and that Dr Rumpff did not welcome or adjust well to such change. Their evidence was to the effect that, for many years, Dr Rumpff had been to a large extent left to his own devices. The changes introduced by Messrs Meek and Murray meant that could no longer happen. It also meant that Dr Rumpff was not always included in discussions and decisions which were not considered appropriate for him to be involved in or to make.
45. The Tribunal notes that, apart from some correspondence which passed between Dr Rumpff and Mr Meek well after the event, there were no contemporaneous documents created by Dr Rumpff recording any complaint by him about the way he was being treated.
46. The evidence before the Tribunal does not establish any inappropriate treatment of Dr Rumpff by Mr Meek or Mr Murray. Indeed, the evidence establishes that those gentlemen did all they reasonably could (and more) to try and assist Dr Rumpff in coping with the problems he had, which included problems outside of the workplace. They acted with compassion and concern for Dr Rumpff.
47. The evidence before the Tribunal compels the conclusion that Dr Rumpff resisted the change that Messrs Meek and Murray brought about. He found it difficult to adjust to that change. Importantly, the evidence also clearly establishes that these changes clearly caused Dr Rumpff stress and anxiety.
48. As for the requirement that there be a “contribution in a material degree by the employee’s employment” in the definition of “disease”, in Re Welsford v Commonwealth Banking Corporation (1984) 1AAR 42, Davies J commented upon s 29 of the 1971 Act as follows:
“It is sufficient that the employment contributed to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factors need be no more than contributing in material ways. The factor is not required to be the real, approximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence all that is required is that one such factor exhibits the necessary connection with the worker’s employment”.
49. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Federal Court discussed the use of the word “material” for the purposes of the 1971 Act and said:
“The use of the word “material” in conjunction to the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases; clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. This served only to emphasis that the section is not brought into play unless it is established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The casual connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small”.
50. Whether or not as the respondent contends Dr Rumpff’s alcoholism and psychiatric condition (depression) were caused by factors quite separate from his employment, it is clear that the changes to Dr Rumpff’s employment “contributed in a material degree” to an aggravation of that “disease”.
51. It may well be that other factors contributed in a more significant way to that condition than did the change to his employment. In this regard we refer specifically to the breakdown of the relationship between Dr Rumpff and the applicant. However, all the applicant need establish is that the matters to which the Tribunal has referred, matters within Dr Rumpff’s “employment by the Commonwealth”, “contributed …in a material degree” to the aggravation of Dr Rumpff’s “ailment” – the word “ailment” itself being defined in s 4 (1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
52. For the reasons we have given, we consider the applicant to have discharged the onus upon her in this regard and find that Dr Rumpff suffered a “disease” within the meaning of the SRC Act.
53. As the “disease” found by the Tribunal cannot be said to have been suffered by Dr Rumpff “as a result of reasonable disciplinary action taken against (him) or failure by (him) to obtain a promotion, transfer or benefit in connection with his or her employment”, we conclude that the applicant has established that Dr Rumpff suffered an ‘injury’ within the meaning of s 4(1) of the SRC Act.
54. Mr Harrison, counsel for the applicant, submitted that, separate from the matters which the Tribunal has dealt with, there was “a second phase and a second set of circumstances which… was what created stress and aggravated the claimed conditions.” In this regard Mr Harrison referred to the fact that, during Dr Rumpff’s stay in Perth in July 1998, Dr Rumpff was sent a copy of reports that had been written about him on Christmas Island and sent to the Darwin and Canberra offices.
55. The first of these documents was a letter from the Island’s Administrative Officer to Mr Murray, the Island Conservator. Dated 20 July 1998, it conveys what occurred during the evening of 15 July 1998, the night Dr Rumpff was to fly to Perth for treatment. Enclosed with the letter was a memorandum from Mr Meek to Mr Murray dated 20 July 1998 detailing what had occurred that evening.
56. The second was a document setting out a “strengths” and “weaknesses” of Dr Rumpff.
57. The third was a letter dated 21 July 1998 from Mr Murray to Mr Greep, Director, Personnel Operations of the People Management Branch of Environment Australia. That letter enclosed copies of various documents and stated, amongst other things, as follows:
“It is my belief that there are two separate (but intertwined) issues with Holgar and his present state. One issue involves his personal life, length of time on the island and a house (…this is a long standing dispute between Holgar and his wife against the Commonwealth and is currently before the courts. This dispute seems to have had an extraordinarily profound effect on Holgar, almost to the point of traumatising him…).
The second issue is his inability to cope with change in the workplace and to perform certain duties to an acceptable standard…
As a general overview, Holgar is caught in a time warp and persists with many outdated work practices to the extent that he is probably now well outside the mainstream corporate standard required. He resents the portfolio review of the conservancy undertaken several years ago which created new structures and positions in the workplace – Holgar feels that from this review his structure and responsibilities in the organisation have been greatly diminished…
Since taking up the newly created position of Natural Resources Manager in mid-1996, Paul Meek has tried to introduce more scientific rigour and contemporary work practices…in the section but these have still not been fully accepted by Holgar … In fact there is a degree of active resistance and a persistence in “clinging to the past”.
In short…. It appears that the organisation still has some staff who yearn for the past when they could roam about the place without being fettered by bureaucratic procedures.
What happens with Holgar from now on is not entirely clear. Resolution of family and personal issue is probably something we (ie: his employer) have no control over and is in the hands of medical professionals. If it is felt that a change in work location would be beneficial then we may be able to facilitate this. However, we do have an obligation to ensure that Holgar does not put himself or others at risk by returning to the workplace whilst under the influence of a combination of medication and alcohol as this has happened in the past. Would it be possible to obtain an assurance from the people treating Holgar to indicate that this is unlikely to occur again?
We obviously can do something about underperformance and in the first instance I hope that a staff development and training programme can be tried. I do not believe that this can be carried out on the island as Holgar needs to be exposed to other people, and to a much different work environment and culture. Hopefully this exposure would force Holgar to realise that he needs to upgrade his skills and work practices to the level of his colleagues within the wide agency. It should also focus him to consider alternatives if he cannot change and adapt.
For your consideration and advice.”
58. The copy of the letter which the Tribunal received in evidence contained numerous handwritten annotations by Dr Rumpff. Many parts of the letter were circled with the word “No” in capital letters in the margin followed by exclamation marks.
59. Also provided to Dr Rumpff was a copy of an email from Mr Murray to various people including Mr Greep in which two other matters are raised, concluding with the following two paragraphs,
“I had hoped that Holgar would voluntarily see the need to change his work practices and would agree to move from (Christmas Island) for a while for training and staff development. It seems that he is determined not to do this and to instead return as soon as possible.
If he does return to work over the next few weeks I propose to formally put him on notice about his underperformance and to monitor his performance against documented criteria”.
60. Again, the copy of the email tendered in evidence had various marginal comments by Dr Rumpff. Notably, Dr Rumpff wrote “Yes!” with respect to the words “would voluntarily see the need” and “would agree to move from (Christmas Island) for a while for training and staff development” in the penultimate paragraph of the email.
61. In evidence the applicant said “Holgar felt that all of this was being used to do a hatchet job on him and kick him off (Christmas Island)”.
62. On 12 August 1998, Mr Griffiths of Environments Australia wrote to Dr Rumpff advising that as a result of his consideration of “a fitness for duty” report from Dr Stephen Dennis, Health Services Australia, and discussions with John Hicks, Assistant Secretary, Parks Australia North, and others, he had decided that Dr Rumpff be temporarily transferred to Canberra. The applicant said that Dr Rumpff was “distraught at the contents of the letter”.
63. In the report from Stephen Dennis referred to in that letter, he wrote:
“Dr Rumpff stated that there had been a number of factors which had contributed to his current condition. Firstly he said that there had been a gradual deterioration in his marriage for several years and they had agreed to a separation. His wife had gone to Sydney with their daughter. Dr Rumpff stated that while he had initially welcomed the separation he found that he soon became lonely and melancholic from being separated from them both. …
Secondly, Dr Rumpff stated that since the restructure there had been a developing personality clash with the head of the Natural Resources Division and he had found this difficult to cope with. He said he felt that his skills were not taken seriously and he was being treated more like an apprentice, which he found difficult to cope with.
Thirdly, he said that there were a range of other less important “petty” things and this included the issue over the housing situation as well as financial worries contributed to by the separation from his family.”
64. Mr Dennis concluded:
“Dr Rumpff is currently an inpatient in the Gairdner Hospital (sic) where he was admitted after being acutely agitated and depressed, which appears to be related to circumstances both concerning work and his personal family life. The issues contributing to this appear to be of long standing and are still far from being resolved.
I certainly have some concerns about his returning to such a situation without these underlying factors being adequately addressed and it is likely that these stresses would resume and there could be a recurrence of his symptoms. I understand that it is possible that he could have at least a temporary transfer to Canberra where he would have access to both his wife and daughter and to support and rehabilitation services.
However, I would also consider it appropriate indeed necessary that he be allowed to return to Christmas Island for at least a fortnight to allow him to get his house in order and to pack sufficient belongings to take with him to Canberra should this option be exercised. I would consider that after three months it would be appropriate to review the situation as to his longer term placement.
I would have to say however that I am not optimistic that a long term return to Christmas Island is likely to be effective”.
65. On 9 November 1998, Dr Rumpff wrote to Mr Greep. He wrote that he was “troubled about the prospect of not being able to return to the island” as it was “that prospect which contributed considerably to the deterioration of my illness and depression”. In particular, he wrote:
“So, with the departure of Paul Meek, the main stressor having contributed to my condition: and my marriage and my medical condition having greatly improved, I can see not reason why consideration should not be given to my return to my position on Christmas Island, after finalising the envisaged three months of rehabilitation in Canberra…”
66. In a facsimile dated 2 December 1998 to Mr Murray, Dr Rumpff wrote:
“I have discussed with you (albeit too late during your term – my fault!) that Paul (Murray) has been a contributing … “stressor”, not as a result of the “portfolio review”, or as a supervisor as such, but as a supervisor with tendencies to autocracy contravening ID…
That’s all I wanted to express, the changes at home and Paul leaving would make a difference. I do not want to imply that you were a stress factor. Paul already knows he was. Maybe I could have expressed that paragraph a bit more clearly”.
67. In a facsimile from Dr Rumpff to Mr Meek dated 14 January 1999, Dr Rumpff wrote “however, your style of leadership and people management has indeed been a contributing factor, and you are the first to know over two years ago.”
68. As has already been noted by the Tribunal, both Mr Meek and Mr Murray gave evidence disputing Dr Rumpff’s allegations. Indeed, they also did so contemporaneously: Mr Murray through an email to Dr Rumpff dated 26 November 1998 and Mr Meek through an email to Dr Rumpff dated 13 January 1999.
69. Dr Rumpff saw Dr A S Henderson, a professor of Psychiatry at the Australian National University, on some five occasions from January 1999.
70. Dr Henderson recorded that Dr Rumpff told him
“he had been depressed and using alcohol for symptomatic relief for two years. He attributed both to difficulties in his marriage. He emphasised how much he enjoyed his work and how fulfilling he found it. He acknowledged that when depressed and drinking heavily, his performance at work had become significantly impaired”.
71. Dr Henderson concluded:
“...(Dr Rumpff) does have a recurrent depressive disorder and that this has been present for some 2.5 years. It has, though, responded very well over the last 6 months. He is no longer clinically depressed. His misuse of alcohol belongs to the ‘loss of control’ type in which once started he has difficulty stopping...
For the future the probability is that he may have further depressive symptoms from time to time, but these should be largely manageable. A crucial issue is his relationship with his wife, where it is likely that much work needs to be done”.
72. The evidence establishes that there was an isolated episode of binge drinking in March 1999.
73. The Tribunal accepts that the written communications (which have been detailed above), may well have caused Dr Rumpff “stress”. However, the evidence fell far short of establishing, on a balance of probabilities, that these events “contributed… in a material degree” to the aggravation of Dr Rumpff’s “ailment”. Indeed, to the contrary, apart from the one episode of binge drinking in March 1999, the evidence establishes that Dr Rumpff’s rehabilitation was proceeding well throughout this period, including work undertaken by him on a text concerning Australian fauna.
74. Dr Rumpff did not suffer any further relapse until September 1999. His transfer to Canberra was then formalised as “permanent” due to lack of support services on Christmas Island.
75. In November 1999, Dr Rumpff took five months approved sick and recreation leave and travelled (alone) to Germany.
76. Upon Dr Rumpff’s return to Australia, he was hospitalised in Perth in March 2000 due to alcohol related matters and was admitted to a detoxification clinic in Canberra on 16 March. On 17 March 2000 he telephoned his employer, apologised for his absence and stated that he would commence work on the 21 March.
77. When Dr Rumpff failed to commence work on 21 March, on 22 March 2001 he was hand-delivered a letter requesting “a reasonable explanation in writing about why prior approval for your absences was not sought, or you seek and are granted retrospective approval (eg a medical condition) within seven days of receipt of this letter”, advising that an agency may terminate the employment of an ongoing employee on the grounds of non-performance of duties pursuant to the Public Service Act 1999, and stating that “this correspondence is a formal written warning that should you have a further unauthorised absence this may result in a recommendation for termination of employment to the Agency head or delegate”.
78. No evidence adduced before the Tribunal was capable of establishing that Dr Rumpff’s receipt of this letter in any caused or contributed to his death. Even if it did, the letter clearly constituted “reasonable disciplinary action” within the meaning of s 4(1) of the SRC Act, and therefore would not have been capable of constituting an “injury” within the meaning of the Act.
79. Accordingly, for the reasons given, the Tribunal finds that the only “injury” within the meaning of s 4(1) of the SRC Act disclosed on the evidence was the aggravation of Dr Rumpff’s “ailment” contributed to in a material degree by the change in his work and work conditions brought about by the reforms introduced by Messrs Meek and Murray.
Did Dr Rumpff’s “injury” result in his death?
80. The Tribunal’s finding that Dr Rumpff had an “injury” within the meaning of s 4 (1) of the SRC Act does not of itself entitle the applicant to compensation under s 17 of the SRC Act. As previously noted, to be entitled to such compensation, the applicant needs to further establish that the “injury” resulted in Dr Rumpff’s death.
81. The issue for determination is whether the “injury” suffered by Dr Rumpff resulted in his death in a causative sense? In other words, did the stress suffered by Dr Rumpff, and the effects that stress had upon him, have some causal link to the myocardial infarction that resulted in his death?
82. In this regard, the Tribunal received expert evidence from Dr Krishnamurthi Somers on behalf of the applicant and Dr James Robinson on behalf of the respondent.
Evidence of Dr Somers
83. In his expert report, Dr Somers noted that the major risk factors of coronary disease are hyperlipidemia (elevated levels of blood cholesterol), hypertension (high blood pressure), cigarette smoking, diabetes, family history of coronary atherosclerosis, alcohol consumption and psychosocial factors.
84. As to hyperlipidemia, Dr Somers wrote that Dr Rumpff’s “blood cholesterol levels were not unduly elevated”. In cross-examination, however, Dr Somers agreed that Dr Rumpff’s cholesterol levels contained in a laboratory report dated 9 May 1997 were “not far below the bar” set by the guidelines at the time as requiring treatment , and that they would require treatment on the guidelines applicable at the date of the hearing.
85. As for hypertension, Dr Somers wrote “in his clinic visits on Christmas Island dating from 1991 to 1998 he was found to be hypertensive at various times. For instance on 3 August 1992 his blood pressure was noted at 170/110 mmHg. It was at this time that he was commenced on anti-hypertensive medication of Enalapril. On 25 May 1993 he was counselled regarding his compliance with medication”.
86. As to cigarette smoking, Dr Somers wrote “at various points in his medical records it is stated that he had been a smoker, about a packet a day. Unfortunately, there was no information on his records on the duration of his smoking history”.
87. Dr Somers noted that “from a study of his medical records (Dr Rumpff) does not appear to have been diabetic”.
88. As to family history, Dr Somers wrote “in his family history, his father died at the age of 58 of acute myocardial infarction”.
89. In respect to alcoholism, Dr Somers wrote “he had been in the habit of drinking spirits, Vodka, up to a bottle a week. However, from statements recorded in his file it seems that he was inclined to binge drink as a reaction to stressful situations, for example, stresses at work, separation in his marriage between 1997 and 1998, transfer to Canberra and, later on, eviction from his home on Christmas Island”.
90. With respect to psychosocial history, Dr Somers wrote:
“This aspect of Dr Rumpff is described in detail in the Inpatient Summary from Sir Charles Gairdner Hospital dated 28 August 1998.
Against a four year history of depression, marital problems and alcohol abuse, he had been referred by Dr A S Walley for psychiatric assessment and care. “His ability to cope at work had been affected” and this had led to increased tension at his place of work. He had become increasingly lonely and isolated, he had been sleeping poorly, and he had lost interest in his work and household chores, whereas normally he was quite obsessional. His alcohol intake had significantly increased.
Earlier this year his daughter had visited him from Sydney for two weeks during the school holidays. He reported that during this time his sleep, appetite, mood and motivation had significantly improved and that he had stopped drinking without suffering any withdrawal symptoms. He settled quickly into ward environment at Sir Charles Gairdner Hospital and within five days he felt he had “returned completely to normal”. In the opinion of the psychiatric team caring for him “it was felt that it was more to him being removed from the stressful environment”. It was agreed that he would undergo vocational rehabilitation in Canberra following a return from “a short period on Christmas Island to re-organise his affairs”.
Dr Karen McKenna who looked after Dr Rumpff in Sir Charles Gairdner Hospital stated that she and her team had reservations about the wisdom of his returning to Christmas Island to his usual work “as all of the stressors are unresolved and are likely to remain that way”. It was recommended strongly that he continue to have rehabilitation with the appropriate providers in use of family support”.
91. Based on the above, Dr Somers opined that “there is no doubt that Dr Holger Rumpff suffered from coronary atherosclerosis, a morbid condition of gradual development with ultimately resulted in his death as a result of acute myocardial infarction … It can be strongly argued that the environmental stress in which he worked was an aggravating factor in a material degree towards the progress of his ailment that caused his death”.
92. In that context, Dr Somers referred to the report prepared by Dr Stephen Dennis, (at a time when Dr Rumpff was still an inpatient at Sir Charles Gairdner Hospital). Dr Somers noted that Dr Dennis stated that:
“…since the restructure there had been a developing personality clash with the Head of the Natural Resources Division and that he had found it difficult to cope well. He said that his skills were not taken seriously and he was being treated more like an apprentice, which he found difficult to cope with”.
93. In cross-examination Dr Somers confirmed that the above quoted passage of Dr Dennis’ report was all that he was relying upon for his statement that Dr Rumpff worked in an “environment of stress”.
94. As to the causal connection between “employment and injury”, Dr Somers said he “would prefer to answer as follows”:
“Undeniably Dr Rumpff was affected by risk factors of hypertension, smoking and family history associated with coronary atherosclerosis. However, I would argue strongly that the progress of his underlying coronary atherosclerosis was aggravated and contributed to in a material degree by his employment, especially following the stresses consequent on change of administration at his place of work on Christmas Island, that resulted in his death”.
95. Dr Somers then offered the following “comment”:
“Anxiety and depression affect outcome patients with atherosclerosis. In the case of Dr Holger Rumpff his symptoms of anxiety and depression were clearly related to his work environment. Indeed, his rapid recovery, over five days during inpatient stay in the psychiatric unit of Sir Charles Gairdner Hospital is pointer to the role of anxiety and depression engendered at his workplace and contributing to his heart attack.
Pertinent to his case is the Interheart study published in the Lancet, a medical journal of considerable international reputation, of 11-17 September 2004 conducted across 52 countries and comprising 11,119 patients in age and sex-matched 13,648 control. Psychosocial stressors were assessed by structured questionnaire, adjusted for age, sex and smoking.
In the Interheart study the concept of stress encompassed several factors, external stressors such as job stress, adverse life events and financial problems and also potential reactions to stress such as depression, psychological stress and sleeping difficulties. General stress (work, home or both) clearly demonstrated psychosocial factors as significant in increasing the risk of myocardial infarction (heart attack). The study clearly concluded that “psychosocial stresses are related to increased risk of myocardial infarction … the size of the effect less than that for smoking (comparable with hypertension)”.
Previous evidence and argument have always suggested a causal link between anxiety or depression, in myocardial infarction. The Interheart study has uniquely demonstrated, simultaneously, multiple events of elements of stress as risk factors in myocardial infarction”.
96. Dr Somers’ “conclusion” was that:
“Dr Holgar Rumpff suffered from coronary atherosclerosis, admittedly against a background of conventional cardiac disease risk factors, except that anxiety and depression emanating from his work situation on Christmas Island significantly compounded and aggravated the progress of the disease to his ultimate death”.
97. In cross-examination by Mr Morgan, counsel for the respondent, Dr Somers agreed that the Interheart study had been the subject to published criticisms regarding the methodology used, “in particular, where the control subjects were not people who had had a heart attack”. Dr Somers also agreed that the paper dealt with stresses generally but not with specific stressful events and focused on a period of 12 months prior to the date each participant was interviewed.
98. Dr Somers was then cross-examined as to whether he could point to any published data which supports a relationship between stressful events five years earlier and a person’s heart attack. He was unable to do so, but did make reference to “a more recent paper that has appeared in the Journal of the America College of Cardiology as recently as this year” which he said he thought supported the “general principles” of the Interheart study. In his cross-examination of Dr Somers, Mr Morgan noted that, at page 649 of the “more recent paper”, the following appeared:
“ Behavioural cardiology is an emerging field of clinical practice based on the recognition that adverse lifestyle behaviours, emotional factors and chronic life stress can all promote atherosclerosis and adverse cardiac events. In recent years, the patho physiologic understanding of how psycho-social risk factors contribute to atherosclerosis and adverse cardiac events has broadened substantially. By contrast, the development of effective therapeutic interventions both for modifying high risk lifestyles and behaviours and for reducing psycho-social risk factors for CAD patients remains a challenge. There have been few large-scale psycho-social intervention trials and the design of future trials is under debate”.
99. Mr Morgan then put to Dr Somers “so it is still in the area of being explored?” to which Dr Somers responded “explored in terms of recognition of the factor, of the factors that are involved, the compounding, ….. factors. And need to be able to recognise them and to be able to plan appropriate intervention”.
100. With respect to the improvement Dr Rumpff enjoyed in the little time that he was at Sir Charles Gairdner Hospital, Dr Somers agreed that Dr Rumpff “drying out” would certainly have been a factor in that improvement and Dr Somers specifically agreed with the statement put to him that “if that is the opinion that you’ve got in front of you that he has no active psychiatric illness the balance tends to come down more on the side of his mental state being a consequence of his alcoholism rather than a psychiatric illness”.
101. When asked by Mr Morgan whether he agreed that the greater the period between Dr Rumpff attending work and having his heart attack the less likely that there is a relationship between work stress and his coronary, Dr Somers said “my answer would be a dialogue, Sir, but you can’t be specific about that. In all, there are if I may use the word of “emotional scar and bereavement” that can be an emotional scar life long”. Dr Somers said that “time is not necessarily a healer”.
102. Dr Robinson’s written report was put to Dr Somers and Dr Somers was asked whether there was anything he disagreed with in the report. Dr Somers said that he had not previously seen the report, but, having now read it, there was nothing stated therein with which he disagreed, save that in addition to the accepted risk factors identified by Dr Robinson, Dr Somers would add to the psychosocial factors to which he referred in his own report.
Evidence of Dr Robinson
103. Dr Robinson listed the recognised risk factors for coronary artery disease as family history, sex – he noted that myocardial infarction is more common in males, although “the sexual difference persists until women are aged 60 years of age and then the difference gradually declines as they age – hypertension, cigarette smoking, hyperlipidemia, diabetes and obesity. Dr Robinson had noted that Dr Rumpff had five of the seven major risk factors.
104. With respect to psychosocial factors, Dr Robinson wrote:
“Psychosocial factors have not commonly been regarded as a risk factor, but the Interheart Study published in the Lancet … suggests that psychosocial stress may be a risk factor but with a strength less than smoking but equal to hypertension and obesity. In this study the stress was ascertained by a questionnaire of 11,119 patients with acute myocardial infarction, and 13,648 controls (patients without evidence of cardiac disease).
In my cardiology career since 1963 I have been involved in almost exclusive management of acute myocardial infarction or myocardial ischaemia. I am aware that when you advise a patient that they have ischaemic heart disease or a recent myocardial infarction they often become depressed and express their depression and sense of stress of the past. These patients often require extensive rehabilitation. Most cardiac departments have a rehabilitation centre for its ischaemic heart disease patients.
I believe Interheart is not well designed comparing patients with a recent myocardial infarction against patients with no evidence of cardiac disease. The stress being assessed by a questionnaire of the patient and the active group of patients has (sic) who has just gone through stress of an acute myocardial infarction. Meanwhile the controls had no evidence of heart disease and this active stress generator was not present. Thus I am not convinced his “stress” was a factor in the aetiology of his myocardial infarction. Rather his lifestyle of recurrent alcohol abuse contributed to his marital problems and to his own unreliability plus his inability to perform his work. Thus, his stress, I believe, was self generated, in turn this impaired his ability to perform at work and hence further increased his work stress.
His myocardial infarction was always a high probability because of his constellation of accepted risk factors that he had done nothing about”.
105. In cross-examination by Mr Harrison, Dr Robinson was taken to the Interheart report and, in particular, the passage under the heading “Conclusion and Recommendations” that “fifteen years after Karasek provided the theory and impetus for job strain research, a body of literature has accumulated that strongly suggests a causal association between job strain and (cardiovascular disease)”. Mr Harrison asked Dr Robinson whether or not, in the light of what is said to be the accumulated body of literature, he believed that there was a causal association between job strain and cardiovascular disease. Dr Robinson said:
“… you know, my elders were talking about it when I was a lad. I mean, people are still talking about it but at the present the only study thats let been – this didn’t cause us to agree that, you know, it was the text books of medicine didn’t, following this, didn’t start saying psychosocial stress is a factor. It wasn’t listed. Most of the big text books say it may be but is not regarded as a (risk factor)”.
106. Dr Robinson agreed that it was a “possible risk factor” but that was not a “proven risk factor”.
107. Mr Harrison’s cross-examination of Dr Robinson concluded with Dr Robinson stating that “I think in this particular case it was chronic stress the whole time which I think showed in his life style … I think it was sort of generated by himself to a large extent”.
108. Mr Harrison then asked Dr Robinson “could that chronic stress have been a factor in his myocardial infarction?” to which Dr Robinson ultimately answered “it might have been. But I think the other factors are more – more relevant. You know, the real risk factors are more likely to be relevant”.
109. Dr Robinson was then asked about Dr Somers report and in doing so, took issue with Dr Somers’ statement regarding the connection between stress and myocardial infarction. There followed an exchange between the Tribunal and Mr Harrison:
“You take issue with that. Could you explain why in your own words? – I don’t know if one can say that personally. My personal belief is that there is no real literature at the moment that indicates stress causes you to have a heart attack.
So your reason for taking issue with that sentence or the reasons are those which you have mentioned in evidence previously? – Yes.I mean, people have been talking about it for years, but I still don’t think they’ve proven it”.
FINDINGS
110. The Tribunal accepts, having regard to the well established risk factors, there was a high probability of Dr Rumpff suffering a myocardial infarction apart from the matter contended for by the applicant: he had elevated levels of blood cholesterol, was hypertensive, was a smoker, had a family history of myocardial infarction and drank alcohol, often to excess.
111. Against that background, does the evidence before the Tribunal establish that the “injury” caused or contributed to the myocardial infarction that caused Dr Rumpff’s death?
112. There was no evidence before the Tribunal of any documented case of a myocardial infarction being caused or contributed to by stress (excluding an acute stressful episode). What the Tribunal did hear was that there is and has been for some time considerable debate within the medical profession as to whether stress is a factor that can cause or contribute to heart disease, such as a myocardial infarction.
113. The applicant, and Dr Somers, relies upon the Interheart study as providing evidence to support the view that there is a link between the two. That study has been the subject of published criticism within the medical profession. The Tribunal notes that no medical text book was referred to by the applicant or Dr Somers as suggesting the probability of such a link. The current state of medical knowledge does not appear to support such a proposition (excluding cases of an acute stressful episode) beyond a possibility.
114. It is true in cross-examination Dr Robinson said that the chronic stress from which Dr Rumpff was suffering “might have been” a factor in his myocardial infarction. However, putting that into context and having regard to the views clearly put by Dr Robinson, the Tribunal takes it to have been a statement by Dr Robinson that he cannot discount it as a possibility, but did not consider it to have been a probability.
115. In the circumstances, the evidence before the Tribunal does not establish on the balance of probabilities, that stress caused or contributed to the myocardial infarction that resulted in Dr Rumpff’s death.
116. Further, even if the Tribunal had been satisfied that stress is a factor that can cause or contribute to a myocardial infarction, the further obstacle confronting the applicant was to establish, on the balance of probabilities, that the stress caused by the “injury” which the Tribunal has found, as opposed to the other stresses that were clearly operating on Dr Rumpff, was an operative stress in the causal sense. The Tribunal finds it was not for the following reasons:
· The evidence clearly establishes that the matters that were causing Dr Rumpff’s chronic stress leading up to his death were his marriage with the applicant and his inability to deal with his drinking problem.
· Contemporaneous medical records show that Dr Rumpff was not at that time complaining to any medical practitioner about stress arising from the “injury” as identified by the Tribunal.
· The Interheart study dealt with the period of 12 months prior to interview of the relevant participants. Accordingly, even the Interheart study cannot be used to support the proposition that stress suffered more than 12 months before a myocardial infarction can be an operative cause or contributor to the same.
· In this regard the Tribunal notes that the evidence does not support the applicant’s submission that the stress caused by the factors which the Tribunal has accepted as resulting in an “injury” were operative in the 12 month period prior to Dr Rumpff’s myocardial infarction. The Tribunal refers, in particular, to Dr Rumpff’s own statements (found in his 9 November 1998 communication to Mr Greep, his 2 December 1998 facsimile to Mr Murray, his 14 January 1999 facsimile to Mr Meek and his statements made to Dr Henderson to the effect that (from his perspective) the cause of Dr Rumpff’s problems at work was Mr Meek, that had resolved itself when Mr Meek left (which, the evidence established, was in October 1998) and that, thereafter, he was enjoying himself at work.
117. The Tribunal was also referred to various prior decisions of this Tribunal in which this Tribunal has had cause to consider whether stress had contributed to a myocardial infarction suffered by an employee. In this regard the applicant referred to Re O’Connor v Australia Post (1986) AWCCD 73-714 and Re Commonwealth Scientific and Industrial Research Organisation v Basinski (1987) AWCCD 73-826. The respondent referred to Jegatheeswaran v Comcare [2005] AATA 1096.
118. We do not find these decisions to be of any assistance in the determination of the matter now before us. None of those decisions establish any statement of general application: each turned on their own facts and expert evidence adduced at the hearing of these matters.
Conclusion
119. For the reasons we have given, the Tribunal holds that the applicant has not established, on the balance of probabilities, that the work-related stress held by the Tribunal to have constituted an “injury” within the meaning of the Act caused or contributed to Dr Rumpff’s death.
120. For the sake of completeness, the Tribunal notes that even if it had concluded that the correspondence of late 1998 had contributed in a material degree to an aggravation of Dr Rumpff’s “ailment”, for the reasons given above, the Tribunal would have nevertheless concluded that the applicant had not established, on the balance of probabilities, that that particular “injury” caused or contributed to Dr Rumpff’s death.
121. The decision under review is therefore affirmed.
I certify that the preceding 121 paragraphs are a true copy of the reasons for the decision herein of Senior Member Mr S Penglis and Dr P Staer, Member.
Signed:
......................(sgd S da Motta).......................................
Associate
Date of Hearing 14, 15, 16, 17, 18 November 2005
Date of Decision 15 February 2006
Counsel for the Applicant Mr R Harrison
Solicitor for the Applicant Dwyer Durack
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Australian Government Solicitor
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