Price and Comcare
[2007] AATA 1183
•28 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1183
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/341
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER PRICE Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
Date 28 March 2007
Place Canberra
Decision 1. The decision of Comcare made 30 September 2005 that Mr Price had no present entitlement to compensation pursuant to sections 16 and 131 of the Safety, Rehabilitation and Compensation Act (1988) is set aside.
2. In substitution for the decision set aside, it is decided that for the period 14 July 2005 to the date of this decision, Comcare is liable to compensate Mr Price pursuant to sections 16 and 131 of the Act in respect of the compensable injury deemed to have been suffered by him on 25 February 1977.
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Mr Price.
........................................................
J.W. Constance, Senior Member
CATCHWORDS
Compensation – Commonwealth employees – Psychiatric injury – Claim had originally been accepted – Comcare subsequently ceased liability stating applicant had recovered - Whether applicant has not been incapacitated as a result of injury – Whether applicant has required medical treatment as a result of the injury
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 20, 131
McDonald v Director-General of Social Security (1984) 1 FCR 354
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION [2007] AATA 1183
28 March 2007
J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
INTRODUCTION
1. The circumstances of this application are somewhat unusual. Mr Price claims that by reason of his treatment as a member of the Commonwealth Police Force between 1970 and 1977 he has been unable to work since September 1976. Since his retirement from the Force in 1977 Mr Price has sailed a yacht around the Mediterranean, across the Atlantic and along part of the east coast of South America. He has also been able to fly a plane. Comcare compensated Mr Price for his incapacity from 1977 until July 2005, but now says that by 1980 at the latest he had recovered fully from the effects of the injury he suffered whilst employed in the Force.
2. For the reasons which follow we are not satisfied that there has been a change of any of the factors entitling Mr Price to compensation in respect of the injury he sustained. Comcare’s decision that as at 14 July 2005 it was no longer liable to compensate him in respect of that injury will be set aside.
FINDINGS OF FACT
3. Unless otherwise stated the following findings of fact are made on the basis of the evidence of Mr Price. We are satisfied of those facts on the balance of probabilities.
4. It is not in dispute that Mr Price suffered the injury for which liability has been accepted and in respect of which compensation was paid until 13 July 2005. At the time liability was accepted the injury was described by the Commissioner for Employees’ Compensation as “aggravation of a disease, namely, paranoid personality disorder which precipitated a depressive illness of mild to moderate severity".[1] However in order to consider whether Mr Price continues to suffer from this injury it is necessary to understand the nature of the condition for which liability was initially accepted and the circumstances in which the injury occurred.
[1] Ex.R6 p.210.
5. Mr Price is 58 years old. After he completed his schooling he qualified as an optical mechanic and then, in 1970, joined the Commonwealth Police Force. During his time in the Force he experienced numerous difficulties with his superior officers and on occasions, in his view, was treated unfairly by some of them.
6. As a result of his treatment and the demands of the job Mr Price suffered depression and paranoia which caused him to cease work in September 1976. In May 1977 he was retired from the Police Force on the grounds of invalidity. Between September 1976 and May 1977 his employer did not offer any treatment or counselling, although Mr Price did see his own psychiatrist on one or two occasions.
7. On the day following his retirement Mr Price flew to London and from that time had little contact with his family or friends in Australia. Once in England he "just kept pretty much to himself." [2] He did not try to gain employment and lived on his superannuation benefits.
[2] Transcript 27.11.2006 p-32.
8. From May 1977 until February 1986 Mr Price travelled the world. He only returned to Australia once in this period, for four weeks in 1984. This return was necessitated by illness.
9. In 1979 Mr Price met Ms Jamieson. They formed a relationship which has continued to the present time. In 1980 Ms Jamieson and Mr Price purchased a yacht and sailed down the west coast of Europe, through the Mediterranean, across the Atlantic and up the east coast of South America. They returned to Australia in early 1986 as Ms Jamieson wished to return home for family reasons.
10. During his time travelling Mr Price undertook very little employment. In 1981 he worked for a period of no more than two weeks as a labourer in a boat-yard in France, but he gave up this work as he became extremely depressed. For a number of years he earned some money diving to retrieve anchors thrown overboard without anchor chains. This work was sporadic and only involved diving for about five minutes at a time.
11. While he was travelling Mr Price suffered bouts of depression for up to two or three weeks at a time. When asked why he continued travelling Mr Price replied:
“I think I was obsessed. I couldn't help it, couldn't stop, didn't want to stop, didn't want to create any -- put down any roots anywhere." [3]
[3] Transcript 27.11.2006 p-39.
12. When Ms Jamieson and Mr Price returned to Australia in 1986 they also returned to live in Canberra. However, because of the association between Canberra and his former employment, Mr Price could not continue to live in Canberra and moved to Brisbane. Mr Price felt "that someone was out to get [him]." [4] For family reasons Ms Jamieson remained in Canberra but their relationship continued. Mr Price lived in Brisbane for about eight months before returning to Canberra. For about three-and-one-half months of his time in Brisbane he managed an optical shop for a friend. After about one month spent managing the shop Mr Price again suffered depression for which he sought medical attention from both a general practitioner and a psychiatrist. He was unable to cope with the employment. He returned to live in Canberra. This condition has not changed since his return. He continues to suffer from depression.[5]
[4] Transcript 27.11.06 p-42.
[5] Transcript 25.11.06 p-48.
13. On his return to Australia, Mr Price learned that he could apply for compensation in relation to the injury he had suffered whilst he was employed by the Commonwealth Police Force. In April 1987 he lodged a claim for compensation for a depressive illness. After considerable investigation by the Commissioner for Employees’ Compensation the claim was accepted. Included in the findings in the determination was a finding that "the employee has been totally incapacitated for work from 25 February 1977 and as a result of that incapacity for work the employee was retired from his employment on 31 May 1977."
14. Since 1989 Mr Price has been consulting Dr Sanderson, General Practitioner. Whenever he has attended Dr Sanderson there is some discussion, possibly brief at times, as to how Mr Price is managing his condition. On occasions Dr Sanderson has made suggestions to help him manage the situation and has prescribed medication. Mr Price has accepted Dr Sanderson's management methods because he believes that they assist him.
Medical Evidence
15. Dr Sanderson is an experienced General Practitioner with a particular interest in psychological medicine. He has been Mr Price’s general practitioner since August 1990. Dr Sanderson gave evidence and provided a report dated 18 March 2005 [6] and a copy of his clinical notes.[7] He confirmed the opinions expressed in his report.
[6] Ex. A4.
[7] Ex.A3.
16. In his report Dr Sanderson expressed the opinion that Mr Price suffered from depression with features of anxiety caused by work stress as a constable. He stated also that Mr Price attends Cognitive Behavioural Therapy sessions as required and that he should be reviewed by a specialist to determine suitability for emerging therapies.
17. When he gave evidence Dr Sanderson confirmed that whenever Mr Price consulted him they discussed the management of his depression. Dr Sanderson is of the opinion that Mr Price's condition had stabilised in a very poor position, and that he is coping as best he can with daily living. In his opinion the pastimes which Mr Price engages in, such as spending time on his yacht, his flying and scrutineer work are strategies for coping with his underlying psychiatric problem, in that they remove him from the pressures of daily life without his being under scrutiny. He is of the opinion that Mr Price would not take direction from any supervisor and would not cope with being an employee because of the paranoia that he would develop once he began to feel under pressure. Dr Sanderson did not believe that Mr Price's relationship with his wife had any bearing upon his condition. As to the cause of his present condition Dr Sanderson gave the following evidence:
“The nature of paranoid personality disorder is that there is a threshold which the patient crosses somewhere. There may not be enough stressors to ever bring that threshold to light, but at some stage under enough pressure, people who are prone to this condition will develop it and will never step back from that, and if he had - it had not been for the police culture, he would have, in my opinion, not developed that at all." [8]
[8] Transcript 28.11.06 p-10.
18. Mr Price was examined by Dr Lawrence, Consultant Psychiatrist, in June 2005. It appears that Mr Price was referred to Dr Lawrence by Dr Sanderson, although Dr Lawrence also reported to Comcare. Dr Lawrence gave evidence.
19. In the opinion of Dr Lawrence, Mr Price has suffered a personality disorder of paranoid ideations although he did not see any evidence of paranoia or of depression at the time of the examination. However it is the opinion of Dr Lawrence that Mr Price's experiences at work and with authority figures are entrenched, and would preclude his successful progress in a rehabilitation program if he engaged in one.[9]
[9] Transcript 29.11.06 p-35.
20. Dr Saboisky, Consultant Psychiatrist, examined Mr Price on behalf of Comcare in February 2005. Dr Saboisky provided reports of 15 February 2005 and 4 April 2006.[10] He gave evidence and confirmed the opinions contained in his reports. At the time of the examination Dr Saboisky was of the opinion that Mr Price did not suffer from any current psychiatric condition, and that his employment with the Commonwealth Police twenty-seven years previously had no bearing on his current emotional distress. Dr Saboisky was of the opinion that it is probable that Mr Price has elements of paranoid personality disorder which presented from time to time, especially when he was in conflict situations. In his view Mr Price was not voluntarily exaggerating his symptoms nor suffering from abnormal illness behaviour.
[10] Exs R1 and R2.
21. In the opinion of Dr Saboisky, Mr Price’s history indicated that in 1977 he had a depressive reaction from which he recovered completely “at some point” in the late 1970’s. [11] In Dr Saboisky’s view, any depression suffered by Mr Price since that time has not been related to his employment unless his entitlements have been threatened, as in these proceedings.
[11] Transcript p-43.
22. At the request of his solicitors, Mr Price was examined by Dr Lucas, Consultant Psychiatrist, in December 2005. Dr Lucas provided a report[12] and gave evidence. In December 2005 Dr Lucas diagnosed Mr Price as having a history of paranoid personality disorder which was not then manifest. In the opinion of Dr Lucas, Mr Price remained vulnerable to paranoid thinking and had a history of recurrent depression. In his report, Dr Lucas stated:
“The history of this matter suggests to me that Mr Price would have great difficulty returning to any form of employment in the foreseeable future. A return to police work would be inadvisable and certainly unsuccessful. Mr Price’s vulnerability to depression, anxiety and possibly paranoid thinking is well-established and would be difficult to secure a rehabilitation program...... There appears to be a relationship between Mr Price's psychiatric condition and the problems which arose during his employment. I do not believe it is a result of a previous or subsequent injury or disability.”
[12] Ex.A1.
Dr Lucas did not observe anything in Mr Price’s history to suggest that he suffered a psychiatric or personality disorder before joining the Commonwealth Police. As to the likelihood of successful rehabilitation now, Dr Lucas was of the view that the chance of a program assisting Mr Price now is much less than it would have been in 1988 when Mr Price applied for compensation.
23. With the agreement of both parties, the documents filed pursuant to section 37 of the Safety, Rehabilitation and Compensation Act (1988) were taken into evidence (exhibit R6). For ease of reference the documents contained in this exhibit will be referred to by their "T" number. Exhibit R6 contains a number of medical reports, the authors of which did not give evidence. A summary of the content of those reports is contained in the following paragraphs.
24. A psychological report of 28 July 1970 rated Mr Price’s personality as suitable for employment by the Commonwealth Police.[13] A report of a medical examination for superannuation purposes in September 1970 indicated that there was no history suggestive of evidence of mental or nervous trouble, including anxiety state. [14]
[13] T5.
[14] T6.
25. In 1977 Mr Price's general practitioner, Dr Kneebone, referred him to Dr Truman, Consultant Psychiatrist. At that time Dr Truman doubted whether Mr Price would be able to function adequately in the police force on account of his particular personality characteristics. Dr Truman was of the opinion that these characteristics appeared to have been aggravated during the previous eighteen months by a depressive illness with paranoid elements.[15] On 10 May 1977 the Commonwealth Medical Officer recommended that Mr Price be retired on medical grounds.[16]
[15] T20.
[16] T21.
26. Dr Bell, Psychiatrist, examined Mr Price on two occasions in November 1987 at the request of the Commissioner for Commonwealth Employees Compensation. Dr Bell had no doubt that at that time Mr Price suffered from a paranoid personality disorder which he described as "a deep-seated condition of long standing, and involves an inflexibility and maladaption of certain patterns of perceiving, relating to, and thinking about the environment on oneself, which causes significant impairment in social or occupational functioning, or subjective distress." [17] Dr Bell was of the opinion that it was reasonable to accept that Mr Price had developed a true depressive illness of mild to moderate severity in May 1977. Dr Bell expected that the depressive illness would resolve once Mr Price left the stressful environment of his employment in the Commonwealth Police in 1977.
[17] T58.
27. Mr Price was referred by his general practitioner, Dr Gibson, to Dr Knox, Consultant Psychiatrist, in January 1988. Mr Price consulted Dr Knox on a total of four occasions in January in and February 1988. Dr Knox reported:
“The evidence available to me indicates that Mr Christopher Price was a healthy and emotionally stable individual prior to joining the Commonwealth Police and during the early years in the service of that organisation. Between 1974 and 1977 however he began to show evidence of Paranoid Personality Disorder and Depression……….. I do not believe that Mr Price can be said to have suffered from Paranoid Personality Disorder prior to sometime during his service with the then Commonwealth Police, although I accept the psychological proposition that the roots of any personality disorder go back to times of adolescent and childhood development. It is my opinion that relatively extreme work pressure suffered some time between 1970 and 1977 precipitated his Paranoid Personality Disorder, and also brought about Depressive Illness in Mr Price. I believe that the general demands of police work, long hours worked, and Mr Price's increasing conflict with his senior officers all led to the emergence of psychological ill-health at that time." [18]
[18] T64.
28. Dr Knox reviewed the history of Mr Price's time spent overseas since his ceasing employment and was of the view that "Mr Price has not actively engaged the world around him to any great extent in recent years, avoiding paranoia by isolating himself. Dr Knox concluded "I believe Mr Price is correct in this psychological strategy, since he is likely to show serious decompensation in his psychiatric health if he attempts to enter the workforce at this time………. He is not paranoid at this time but as suggested earlier in this report, I believe that he remains very vulnerable and sensitive to stressful life events, including employment."
29. In 2000 Dr Duke, a Consultant Psychiatrist, assessed Mr Price at the request of a life insurance company. Dr Duke diagnosed Mr Price as suffering Recurrent Major Depression with Rapid Cycling.[19] In his opinion Mr Price would be unable to function in any occupation for at least two weeks out of every month as he would be unable to concentrate, deal with people or undertake anything more than the usual familiar activities of daily living. He concluded that "even with the best of contemporary technologies, after such a significant period of time, the likelihood of stabilisation is probably only approximately one in three at best. I consider that Mr Price will never be fit to return to the workforce on a regular basis."
[19] T72.
30. Dr Lawrence, Psychiatrist, examined Mr Price in June 2005 at the request of Comcare. Dr Lawrence reported that at the time of examination he did not find any evidence of paranoid ideation and that he did not appear to be severely depressed at the time. In the opinion of Dr Lawrence "Mr Price's experience at work and with authority figures is an entrenched one and would preclude a successful progress in a rehabilitation program if he engaged in one……….. There is the risk that his paranoia will be reactivated and become an obstacle to any progress in returning to work where he would be placed with an authority figure." [20]
[20] T108.
STATUTORY BACKGROUND
31. Subsection 16 (1) of the Act provides:
“Where an employee suffers from an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines it appropriate to that medical treatment."
32. Payment of compensation for periods of incapacity in the case of an employee who has retired is provided for by section 20 of the Act. Subsection 20 (2) provides:
“Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated."
When this subsection is read in conjunction with subsection 20 (1) it is clear that it is referring to incapacity to work as a result of an injury within the meaning of the Act.
33. Section 131 makes provision for former employees under sixty-five who are in receipt of superannuation benefits and are unable to engage in any work. This section allows for a top-up of income received from superannuation in the case of a worker who continues to be incapacitated.
THE ISSUE FOR DETERMINATION
34. In McDonald v Director-General of Social Security (1984) 1 FCR 354 at 369 Jenkinson J. dealt with the question of the proper determination of the issue or issues to be decided by this Tribunal:
“There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights of liabilities may find itself, for the resolution of which the same principles are applicable by each tribunal. Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist. (The same may be said of a past or a future circumstance.) The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision."
35. In Commonwealth of Australia v Borg (1994) 20 AAR 299 the Full Court of the Federal Court considered circumstances similar to those before us. The Court was dealing with the Act in force prior to the present Act but the principle is equally applicable. In that matter Jenkinson J. said that a decision that compensation is not payable (in a situation where it had been paid previously) should not be made unless the decision maker "was persuaded that one of the entitling circumstances had on or before the [the date of the decision] ceased to exist."[21]
[21] Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307
36. On the basis of the above are the following issues requires determination:
1) are we persuaded that since 14 July 2005 Mr Price has not been incapacitated as result of the aggravation of a paranoid personality disorder and/or a depressive illness precipitated by the aggravation;
2) are we persuaded that since 14 July 2005 Mr Price has not required any medical treatment which would have been reasonable for him to obtain as result of the aggravation of paranoid personality disorder and/or a depressive illness precipitated by that aggravation?
DETERMINATION OF THE ISSUES
37. These two issues can be determined together as there is no suggestion from Comcare that if Mr Price is incapacitated he should not continue to receive medical treatment for his condition. Counsel for Comcare informed us that if Mr Price was found to be incapacitated as a result of his compensable injury Comcare was not seeking a finding that Mr Price was no longer totally incapacitated for work.
38. There is a clear conflict in the views of the medical practitioners before us. Dr Saboisky, who examined Mr Price in February 2005, is of the opinion that Mr Price had recovered completely from his compensable condition at some point in the late 1970’s. This opinion is supported by the opinion of Dr Bell. Dr Saboisky is a very experienced practitioner who gave detailed evidence in support of his opinion. His views are entitled to very careful consideration.
39. Contrary to the view of Dr Saboisky there is considerable medical evidence from 1977 onwards to support a finding that Mr Price has continued to suffer from the aggravation of a paranoid personality disorder and the depressive illness precipitated by that aggravation. As Dr Lucas pointed out, Mr Price's medical history is most important, even though the milestones in the history are a long way apart with little documented material to fill the gaps. In summary, those milestones are as follows:
· 1970: Mr Price's personality is rated as suitable for employment by the Commonwealth police;
· 1970: a medical examination indicates that Mr Price had no history suggestive of evidence of mental or nervous trouble, including anxiety state;
· 1977: Dr Truman doubts whether Mr Price would be able to function adequately in the police force on account of his particular personality characteristics which appeared to have been aggravated during the previous 18 months of his employment by a depressive illness with paranoid elements ;
· 1977: the Commonwealth medical officer recommends that Mr Price be retired on medical grounds related to his employment;
· 1988: Dr Knox forms the view that Mr Price developed Paranoid Personality Disorder and Depressive Illness sometime during his service with the Commonwealth Police Force and that these conditions were suffered as a result of this employment;
· 1990: Dr Sanderson, General Practitioner, begins to treat Mr Price and continues to do so to the present; he is of the opinion that Mr Price suffers from depression with features of anxiety caused by the stress of his employment in the Force;
· 2000: Dr Duke, Consultant Psychiatrist, assesses Mr Price as unfit to return to the workforce on a regular basis;
· 2005 Dr Lawrence, Psychiatrist, is of the view that Mr Price's experience at work and with authority figures was entrenched and would preclude a successful rehabilitation program; he is also of the opinion that there is a risk that Mr Price’s paranoia would be reactivated and become an obstacle to any progress in returning to work where he would be placed with an authority figure;
· 2005 Dr Lucas expresses the opinion that Mr Price remains vulnerable to paranoid thinking and has a history of recurrent depression which suggested that Mr Price would have great difficulty returning to any form of employment in the foreseeable future; Dr Lucas is of the view that there appeared to be relationship between Mr Price's psychiatric condition and the problems which arose during his employment.
40. We also take into account that since he ceased employment Mr Price has been able to travel extensively , including navigating a yacht across the Atlantic and has been able to fly a plane and play a substantial role in building a boat. However, the times during which he has been able to engage in employment where he has been subject to the control of another, have been extremely limited. The evidence as to other activities undertaken by Mr Price, such as the submission of a paper to the ACT government relating to the possible establishment of a new airfield and the work he undertook in disputes with Canberra airport is not such as to indicate that Mr Price is capable of employment. Also we are satisfied on the evidence before us that Mr Price's present psychological and/or psychiatric problems do not arise from his relationship with his partner.
41. Having considered all of the evidence, including that of Mr Price, we are not persuaded that since 14 July 2005 Mr Price has not been incapacitated as result of his compensable injury. Nor are we persuaded that since that time he has not required medical treatment which otherwise was reasonable for him to obtain in relation to that injury. We have not accepted the argument of Counsel for Comcare that we could be so satisfied, as we consider that the evidence of Dr Saboisky supported by the view of Dr Bell and the evidence as to Mr Price's activities since 1977 was not of sufficient weight to outweigh the other medical evidence, particularly as it spanned such a considerable length of time. Our decision in this matter was made more difficult by the lack of evidence which would have been available had there been timely reviews of Mr Price's condition.
42. There is considerable evidence before us to suggest that Mr Price’s employment in the Commonwealth Police Force materially contributed to the development of paranoid personality disorder rather than causing an aggravation of a pre-existing condition. However, in view of our findings set out above, it is not necessary that we make a finding in this regard.
DECISION
43. The decision of Comcare made 30 September 2005 that Mr Price had no present entitlement to compensation pursuant to sections 16 and 131 of the Safety, Rehabilitation and Compensation Act (1988) is set aside.
44. In substitution it is decided that for the period 14 July 2005 to the date of this decision Comcare is liable to compensate Mr Price pursuant to sections 16 and 131 of the Act in respect of the compensable injury deemed to have been suffered by him on 25 February 1977.
45. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Mr Price.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M. Miller AO, Member.
Signed: .....................................................................................
Geoff Foley, Associate
Date/s of Hearing 27- 30 November 2006
Date of Submissions 20 December 2006
Date of Decision 28 March 2007
Counsel for the Applicant Ian Bradfield
Solicitor for the Applicant Porters Lawyers
Counsel for the Respondent Charles Clark
Solicitor for the Respondent Sparke Helmore
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