Renouf and Comcare
[2004] AATA 525
•25 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 525
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2003/2
GENERAL ADMINISTRATIVE DIVISION )
Re RAYMOND RENOUF Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date25 May 2004
PlaceBrisbane
Decision The Tribunal sets aside the decisions under review and substitutes its decisions that:
(i) the respondent is liable to continue to pay compensation to the applicant for anxiety disorder/depression in accordance with section 14 of the Safety Rehabilitation and Compensation Act 1988;
(ii) the applicant suffers from permanent impairment from anxiety disorder/depression which is causally related to his employment in accordance with section 24 of the Act;
(iii) the matter of determining the degree of permanent impairment is remitted to the respondent; and
(iv) the respondent is liable to pay the applicant's costs in accordance with the terms of the Practice Direction.
....................(Sgd).......................
RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements - applicant suffering from anxiety disorder/depression – condition initially caused by the applicant’s employment – whether liability for condition has ceased - temporary aggravation by factors external to workplace - material contribution from initial underlying condition - respondent liable to continue to pay compensation to the applicant for incapacity or impairment – applicant’s condition has resulted in a permanent impairment – assessment of level of impairment remitted
Safety Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 16, 19, 24, 27, 28
Australian Postal Corporation v Oudyn [2003] FCA 318
Lees v Comcare (1999) 56 ALD 84
Re Carson and Telstra Corporation (2001) 33 AAR 351Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
REASONS FOR DECISION
25 May 2004 Mr RG Kenny, Member Background
1. Raymond Renouf (the applicant), who was born on 9 September 1953, was employed by the Australian Broadcasting Commission (ABC) from April 1995 until March 1998 in Darwin as a Technical Officer Productions Operations (TOPO). On 24 October 1997, he lodged a claim for rehabilitation and compensation in respect of anxiety disorder/depression, alleging that this was related to aspects of his employment, in particular, a tripled workload and noisy and cramped conditions (T66). Initially, Comcare (the respondent) rejected his claim but, on 20 May 1998, accepted liability in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the period from 8 September 1997 until 19 December 1997.
2. On 29 May 1998, the applicant lodged a further claim for depression/anxiety alleging that it was related to “harassment from employment” (T71). On 2 October 1998, the respondent rejected his claim and this was affirmed on 8 December 1998. However, that decision was revoked by the respondent on 19 July 1999 on the basis that the applicant was still suffering from the effects of the condition that he had from 8 September 1997 (T56). On 16 November 2001, the applicant lodged a claim for permanent impairment in accordance with section 24 of the Act (T31) and this was rejected by the respondent on 8 July 2002 (T15).
3. On 5 August 2002, the respondent decided that it was no longer liable to pay compensation to the applicant (T16). In a reviewable decision dated 13 January 2003, the respondent affirmed the decisions in relation to permanent impairment and cessation of liability (T6) and, on 17 January 2003, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal).
Hearing
4. At the hearing, the applicant was represented by Mr V Rangiah of counsel and the respondent was represented by Mr C Clark of counsel.
5. Statements prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) were taken into evidence as Exhibits 1 (T1–T64) and 2 (T65-T78), respectively. In addition, the following material was taken into evidence:
§Exhibit 3 - an affidavit, dated 16 March 2004, by the applicant;
§Exhibit 4 - an affidavit, dated 16 March 2004, by Noel Morris;
§Exhibit 5 - an affidavit, dated 15 March 2004, by Graeme Kelley;
§Exhibit 6 - an affidavit, dated 16 March 2004, by Rhonda Carrick;
§Exhibit 7 - clinical notes from 6 October 1997 of Dr N McLaren, psychiatrist
§Exhibit 8 - a medical report, dated 19 March 2003, by Dr Peter Mulholland, psychiatrist;
§Exhibit 9 - a further medical report, dated 29 January 2004 by Dr Mulholland;
§Exhibit 10 - a further medical report, dated 11 March 2004 by Dr Mulholland;
§Exhibit 11 - the applicant’s work roster for 1995 to 1998;
§Exhibit 12 - a medical report, dated 29 September 1997, by Dr A Brownjohn;
§Exhibit 13 - a return to work program prepared for the applicant on 17 November 1997;
§Exhibit 14 - a medical report, dated 7 October 1997, by Dr N McLaren, psychiatrist;
§Exhibit 15 - a further medical report, dated 10 July 1998, by Dr McLaren;
§Exhibit 16 - a further medical report, dated 18 February 2003, by Dr McLaren;
§Exhibit 17 - a further medical report, dated 3 June 2003, by Dr McLaren;
§Exhibit 18 - an affidavit (with annexures), dated 6 March 2001, by Roxsean Edwards;
§Exhibit 19 - a response to the applicant’s affidavit by Roxsean Edwards;
§Exhibit 20 - a statement, dated 15 March 2004, by Colin Palmer;
§Exhibit 21 - a further medical report, dated 24 March 1998, by Dr Brownjohn;
§Exhibit 22 - further medical reports, dated 7 October 1997, 28 October 1997, 30 March 1998, 24 November 1998, 7 April 1999, 29 August 1999, 15 February 2000, 19 May 2000, 21 November 2000, 2 May 2001, 1 November 2001, 7 November 2002 and 8 January 2003, by Dr McLaren;
§Exhibit 23 - a statement, dated 15 March 2004, by Roxsean Edwards;
§Exhibit 24 - a medical report, dated 25 August 2003, by Dr F Varghese, psychiatrist;
§Exhibit 25 - pages 66 to 85 of the transcript of proceedings before the Anti-Discrimination Commission between the applicant and ABC; and
§Exhibit 26 - a further medical report, dated 29 January 2004, by Dr McLaren.
Issues and Legislation
6. The issues for the Tribunal to determine are whether the respondent is liable, under section 14 of the Act, to continue to pay compensation to the applicant for incapacity or impairment in accordance with sections 16 and 19 of the Act on or after 5 August 2002; and whether the respondent is liable, under section 24 of the Act, to pay compensation to the applicant for permanent impairment. Relevant to the determination of those matters are the following provisions of the Act:
“4 - Interpretation
(1) In this Act, unless the contrary intention appears: …
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation 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.
…
permanent means likely to continue indefinitely.
…
6 - Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) …
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment…;
…
14 - Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
24 - Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.”
Evidence at the Hearing
The Applicant
7. The applicant gave the following evidence in relation to his work with the ABC which he commenced in 1995 in Darwin. He said he was mainly in the interchange area of television production operations which was where the taping of satellite feeds would occur and where he had responsibility for monitoring live-to-air productions. He said that his usual shift was from 2 pm to 10.30 pm for five days per week and that the room in which he worked was very small, being approximately 4 metres long and 3 metres wide but with some of that space being occupied by bench tops and video and sound equipment. He said that the room was very noisy and busy because various other operators were required to enter the room from time to time.
8. The applicant said that, in early to mid-1997, his workload increased substantially because, in addition to ABC programming, there was also a need to prepare material for Australian TV such as introductions and conclusions to pre-prepared programs of about 30 minutes duration and also Australian TV updates of about 90 seconds duration which were promotions for upcoming news programs. He said he was required to produce up to 2 hours of live-to-air programming each day including the 7:30 pm post news report and international news bulletins from 8.30 pm to 9 pm and from 9.30 pm to 10 pm He said that, in addition, he would produce the World Around Us program on Wednesdays and Stateline on Thursdays and that the work he did was extremely stressful because it required split-second timing when programming was live-to-air and because he also needed to listen to several voice monitors as well as watch video monitors so that his input would be properly cued and timed.
9. The applicant said that his requests for a transfer out of the interchange area were ignored by ABC management and he remained, predominantly, in the interchange area for some two years. He said that he was there for 80 to 90% of his working time in 1997 and that he developed sleeping problems, felt “on edge” and developed poor eating habits. He identified a document (Exhibit 11) which set out his work roster and said that the entries described as “VT” were references to the video interchange area. He agreed that the roster indicated that, in 1997, he spent considerable time in the audio area rather than the interchange area but he said that it “felt like” he was predominantly in the interchange area. He said that the ABC offices had been inspected for suitability and that, while the interchange area had not passed the workplace test, the ABC was able to maintain its use because it had declared that it was a temporary arrangement. He said that other staff were rotated in their duties with breaks from the interchange area but that this had not occurred for him in two years except for a period of approximately one month when he was on outside duties “on the road”.
10. The applicant said that, because of his health, he was on sick leave from 8 September 1997 to 26 September 1997 and that this was extended until 10 October 1997 with a further extension to 17 October 1997. He said that he then returned to work but was again relieved of duty from 27 October 1997 to 24 November 1997. He said that, thereafter, he was allocated work in accordance with a return-to-work schedule in the studio area as a sound technician for some weeks where he felt totally isolated but was then rostered into the interchange room and he took sick leave because he could not cope with that environment. He said that he returned from annual leave in March 1998 and again experienced the problems associated with the pressures in the interchange room as well as being called derogatory names relating to his sexuality. He said that he ceased work with the ABC on 20 March 1998 and has not worked for the organization since then. He said that he was engaged for a period at the end of 1999 in a work program with the Australian Aboriginal Legal Aid Service but that he was not able to carry out this work and has not worked since.
11. The applicant said that he had been advised by his supervisor, Mike Allsop, that ABC staff had been making derogatory comments about him behind his back on the basis of his homosexuality. He said that this had disturbed him further and that he became more distressed. He said that he had some inclination that comments were being made about him before Mr Allsop spoke with him about it. He said that he was not sure when the conversation he had with Mr Allsop in relation to sexual harassment took place but believed that it occurred while Mr Allsop was still working at the ABC. As to where it occurred, he said that it could have been in the hallway near the interchange area or in Mr Allsop’s office.
12. The applicant said that, after Mr Allsop had advised him about the sexual harassment, he was distressed and crying a lot but could not recall having told his treating doctor about this distress. He said that he was aware that people were saying things such as “Don’t touch that! The poofter touched it!” However, he said that this was not his major stressor at that time and that, rather, this came from the problems that he had from working in the interchange area. He said that he had told other supervisors, including Ms Roxsean Edwards, about the sexual harassment but could not recall when he did this. He said that these complaints to supervisors had never been put in writing because it was customary at the ABC for any such written complaints to be misplaced.
13. The applicant denied that there were matters outside the workplace which impacted upon his well-being. He said that his father died in October 1998 and his mother died in August 1999 but that he was so mentally confused at the time that the fact of their deaths did not fully register with him and he was able to cope. He said that he had used cannabis from time to time and that he had also been using medication in the form of benzodiazepine but said that he was not aware of whether he was using it to excess and that he could not recall being warned by doctors that he was using the drug excessively. He said that he had been involved in litigation in respect of sexual harassment claims against the ABC in the Anti-Discrimination Commission of the Northern Territory as well as industrial action on three occasions against the ABC in respect of inappropriate dismissals and agreed that he found these litigation processes stressful. He said that he believed that his health problems were due to the pressures associated with working in the interchange area of the studio and also the sexual harassment that he suffered through comments made about his homosexuality.
14. The applicant was referred to a letter from Dr Brownjohn (Exhibit 12) dated 29 September 1997. It related that things had come to a head at the ABC some three weeks earlier. The letter also referred to an assault on the applicant by a taxi driver a year before and to his feeling better, after three weeks off on stress leave, until he received a telephone call from the police about the assault. The applicant agreed that there had been such an assault but he said that his feeling stressed was unrelated to that. He said that he did not know why he referred the matter to Dr Brownjohn but he said that he felt, at the time, annoyed at the stupidity of the police in their investigation. He agreed it that he had told Dr Brownjohn that he had been feeling better until he got the phone call from the police but said that, at that time, little things were capable of “setting him off” such as when he perceived the police not to be doing their job.
15. The applicant said that Mr Allsop had confirmed what he believed to be true about the sexual harassment but he said that this was not as bad as other harassment that he had experienced from other people at the ABC. He said that the people involved in this harassment included Ms Edwards and a news-reader, Rosemary Church. He also said that he had difficulty with Ms Edwards as she would not allow him to take his rostered meal breaks.
16. The applicant was referred to the work program that he underwent with Aboriginal Legal Aid at the end of 1999 and early 2000. He said that his recollection of that time was “blurry” but said that he was unable to cope with the work. He said that it sounded interesting but was merely shifting figures from place to place and he found this confusing. In relation to other activities, he said that he had engaged in some gardening and also agreed that he had come to Brisbane to purchase a yacht and had undertaken a navigation course in which he had been unsuccessful. He agreed that he had an interest in pyrotechnics and that he had a registered business for carrying out displays which had been advertised in the telephone book. However, he said that he would only give a display about once per year including an event at the Darwin sailing club. He said that he had a current licence for pyrotechnics and that he had been required to undertake examinations to obtain it.
17. The applicant was referred to the return-to-work program which had been prepared for him on 17 November 1997. He agreed that had signed it and that it was also approved by his treating doctor, Dr Brownjohn. However, he said that he had been forced by someone from the Commonwealth Rehabilitation Service to sign it. He agreed that the program comprised a rotation between the audio and interchange areas in the studio. He said that, before he returned to work, the gossip had started amongst the ABC staff about him. He said that there was a conscious campaign conducted by a newsreader, Rosemary Church, who was often late to work which caused him delay and little time to get his work done. He said that the campaign commenced on the first day of his return-to-work program in November. He said that he was not sure if Rosemary Church had initiated the campaign but that she was involved in it. He said that this affected him but that he could not recall if he had told his treating doctor about it. He said that he complained about Rosemary Church to a manager who simply laughed about the suggestion of a campaign against him.
18. The applicant was referred to the decision of the Anti-Discrimination Commission and the summary of evidence that it contained (T28). He agreed that he had told the Commission that he had been unaware of the fact that he was being discriminated against until he was told about it by Mr Allsop in late 1997. However, he said that he had an inclination that comment was being made about him and that this was confirmed by Mr Allsop. He also said that he had been unaware that ABC management were doing things behind the scenes to disadvantage him and that this was what he meant when he had given his evidence at the Commission.
19. The applicant said that there was an awareness amongst the ABC staff that he was homosexual because he had been “outed” by a staff member in 1995 after he had been seen in a particular hotel. He said that he had been stressed by homophobic comments and that this had been heightened when he had been advised by Mr Allsop of what was going on. The applicant was referred to his evidence that he had been advised by Mr Allsop at the ABC offices. He was then referred to the transcript of evidence taken before the Anti-Discrimination Commission and he agreed that he said there that he was not given information by Mr Allsop until after Mr Allsop had left the employment of the ABC in November 1997. He agreed that his recollection of the events would have been clearer at the time he gave that evidence in 2001 but said that he had also spoken to Mr Allsop about other aspects of harassment when he was at work. He said that Mr Allsop had been unable to tell him about some of the aspects of the discrimination and harassment in relation to management practices until after he left work.
20. The applicant agreed that he had not made reference to sexual discrimination to Dr Brownjohn in September 1997 or to Dr McLaren when he saw him initially in October 1997. He said that this was because only one part of his difficulty at work was related to sexual harassment and that his main problem was being overworked. He agreed that, in his affidavit (Exhibit 3), he referred to his workload and difficulties in the interchange area as his main reason for being stressed and he said that he may not have considered that his reactions to sexual harassment were also affecting him. He said that he was not able to explain why he had not told Dr McLaren about the sexual harassment although he said that his main concern was being hassled in the workforce. The applicant was referred to the clinical notes of Dr McLaren where he is described as experiencing bouts of agitation with shaking and sweating with these being brought on by any upsets, delays, things going wrong, people, bad drivers, losing things, criticizing, crowds and standing in queues. He agreed that these were not work-related matters but said that these were things which only developed after the problems he experienced in the workplace.
21. The applicant said that his return-to-work program had been monitored by Roxsean Edwards and that he talked to her on most days about his work. He said that he had difficulty in speaking with her. He agreed he had been given options for working at the ABC and that Ms Edwards had suggested that he undertake electronic newsgathering. He said that this involved field work which he did not like but he denied that he considered that this was menial work. He said that he had told Ms Edwards about the sexual harassment but that nothing was done by her about it.
22. The applicant said that the campaign by Rosemary Church had commenced around October 1997 and he recalled an incident in early 1998 when he had moved a microphone that she was using on air and for which action he was criticized afterwards because it upset Ms Church during her broadcast. He said that he could recall her “smirking” at him subsequently and that this had upset him.
23. The applicant was referred to the decision of the Anti-Discrimination Commission which described him as dealing with Claire Witham and as describing to her the newsgathering area as being “blokey and homophobic” but as not doing so in the context of any sexual harassment context (T28/83). The applicant said that Ms Witham had been his case manager for returning to work but said that she was not correct in her account. However, he conceded that he had had numerous dealings with Ms Witham and had complained to her about sexual discrimination.
24. The applicant was referred to a letter, dated 24 March 1998, by Dr Brownjohn to Dr McLaren which made reference to matters including the death of a friend and the illness from cancer of his father. He said that these matters had not upset him in that, when his father died, he had been through a normal grieving. He agreed that Dr Mulholland had reported, on 19 March 2003 (Exhibit 8), that the death of his parents had been very distressing and had aggravated his emotional state. However, he said that this was not really true. He said that, when his father was ill in 1999, the ABC had allowed him to travel to Melbourne to see him but that he had received a call from Ms Edwards to indicate that if he stayed more than seven days he would be moved “out of the Territory”. He said this was unfair to him because others had taken bereavement leave for some 15 weeks. He agreed that he told Dr Mulholland that he had engaged in “whistleblowing” by ABC management and he said that he was unable to give a reason why he had not included that in his affidavit material.
Graeme Kelley
25. Mr Kelley completed an affidavit (Exhibit 5) on 15 March 2004 in which he stated:
“1. I know Ray Renouf. I previously worked with Ray at the ABC in Darwin.
2.I was employed by the ABC from approximately 1993 to 2001 as a Transmission Officer.
3.I did not work directly with Ray. I worked in a room across the corridor from Ray.
4.Ray worked in a Department called Interchange. My role as a Transmission Officer relied directly on Interchange to supply material such as news updates and promotions, often at very short notice. I often directed Interchange to either supply me with updates on production or record material for transmission.
5.I recall that the area that Ray worked in was a very confined area of approximately 3 metres by 1 and a half metres. There were two or three people working in that area.
6.This was a particularly stressful area to work in, and it got quite stressful after about 4.30 p.m. as it got closer to news time. It was stressful because of the deadlines that had to be made in order to run their live news shows commencing at 7 p.m.
7.I remember always thinking that it would be a horrible area to work in, due to the confined space and the amount of stress that the job involved.
8.As far as I am able to recall, I think that when Ray left in March 1998, two people will put on to perform Ray’s duties. The area was subsequently also revamped into a much bigger network area.
9.I am aware that Ray made complaints to management about the confined work area and the stress that he was under. I am also aware of requests for assistance that he made.
10.Ray was considered by management to be a whinger. It was because of these complaints that he was given a hard time at work.
11.I am aware of this due to the general feeling that prevailed in the workplace about Ray. There was a general feeling to steer clear of him, and that he was a troublemaker. As an example, I recall one specific occasion when Ray made a telephone call to me. My supervisor told me ‘Don’t liaise with him, he’s nothing but trouble’.
12.I recall that the problem stemmed back to when Ray was involved with whistle blowing against some of the top managers at the ABC. After that, there was a general attitude not to give Ray any assistance.
13.I recall that Ray’s attitude and general demeanour changed towards the latter part of his employment. He basically became bitter and twisted. Prior to that, he was a normal, everyday person.”
26. In his evidence, Mr Kelley said that he had left the ABC in June 2001 when he accepted a redundancy package. He said that he did not have any issues with the ABC but he agreed that he had been warned for misconduct when he had been checking employment prospects with another media outlet. He confirmed that he had worked in the interchange area for about six weeks in 2001 but could not recall whether or not he told management that it was challenging work. However, he said that he did not want to work in that area as it involved a lot of pressure with tight deadlines and that was one of the reasons why he left. He also said that he could not recall the people who replaced the applicant when he left.
Noel Morris
27. Mr Morris completed an affidavit on 16 March 2004 (Exhibit 4) in which he stated that he was the administration manager/financial controller for the Northern Australian Aboriginal Legal Aid Service and that he had known the applicant since 1993 or 1994. He described the applicant at that time as being a good and enthusiastic worker who was talented, artistic and happy in nature. He said that he had also seen the applicant after he commenced working with the ABC on an intermittent basis and had noticed a definite change in him since that time. He said:
“He is now very nervy, and self focused on the issues surrounding his Court case. He has no other life apart from this. He has no confidence, and is neurotic. He is a completely different person to the person that I knew previously.”
Rhonda Carrick
28. Ms Carrick completed a statement, a copy of which was received at the Tribunal on 16 March 2004 (Exhibit 6). Therein, she said that she had known the applicant since he was about nine years old when she lived next to his family home. She described him as being a happy and artistic boy who was active and outgoing. She said that she moved to Darwin in 1990 and that the applicant came to visit her in 1993 and stayed with her on two occasions. She said that, when he began working at the ABC, he was initially very happy and enjoyed his work but gradually underwent a change and became a very bitter and reclusive person who had lost confidence.
Dr Mulholland
29. Dr Mulholland saw the applicant on 7 March 2003 and on 11 March 2004. He completed reports on 19 March 2003 (Exhibit 8), 29 January 2004 (Exhibit 9) and 11 March 2004 (Exhibit 10). He said that he had read the T documents and also the clinical notes of Dr McLaren dated 6 October 1997. He said that working in a stressful work environment with increased workload could lead to the symptoms described by Dr McLaren.
30. In his first report, Dr Mulholland set out the applicant’s developmental history and referred to the death of his father in 1998 and of his mother in 1999. He noted that the ABC had not been particularly co-operative or compassionate in dealing with him on those occasions and that this had been distressing for him. In relation to work related problems, Dr Mulholland wrote:
“He related his work problems back to his ‘busting management for fraud’ which led to 2 managers being sacked and 2 others rapped over the knuckles. His view is that the next level of management moved up and they took it out on him putting him into a chronic overwork situation in which he was doing 2½ hours of live air to air per day. He reported that he was not given any assistance and his response to his request for same was that he was told things along the line of ‘you stay there till you rot’. He was not receiving routine promotions and was asking for help and not getting it. He reported that he helped others in their jobs due to their incompetence and lack of experience in others. He described there being a high incompetence rate at the ABC in Darwin which he estimated to be at least 60%. Incidentally when he ceased doing his job it ended up being done by 4 people which would support his claim that he was in an overwork situation.”
31. Dr Mulholland went on to describe the sexually explicit names that the applicant was called by ABC staff and to the homophobic environment in which he worked. He said that the most likely diagnosis in the applicant was major depressive disorder and generalised anxiety disorder and he said that he remained moderately seriously psychiatrically ill. He said it was difficult to explain why the applicant was not improving psychologically but said that one factor perpetuating his symptoms may be his continued involvement in litigation. He also considered that there may be some underlying latent asymptomatic personality vulnerability in the applicant. He said that, once psychiatric conditions develop, they take on a life of their own and tend to be self-perpetuating.
32. In his second report, Dr Mulholland identified two basic scenarios that could be hypothesized to explain the applicant’s psychiatric condition. These were:
§he developed a depressive illness which was complicated by substance abuse and histrionic and paranoid behaviour independent of his work situation;
§the work situation in which he found himself was psychopathological and he was subjected to unreasonable demands and management behaviour which were causal in the development of a psychiatric illness characterised by chronic depression, substance abuse and histrionics and paranoid behaviours which has continued to be aggravated by and contributed to by unresolved litigation.
33. Dr Mulholland stated that he was unable to reach a concluded opinion as between those two scenarios on the material that he had available to him. However, he said that would it be reasonable to assume that the psychiatric condition was and is work-related on the assumptions that:
§his basic premorbid personality was reasonably satisfactory; and
§that he was subjected to significant work-related stress; and
§that there were no other significant stressful life events.
34. In his third report, Dr Mulholland referred to an additional diagnosis of chronic substance (cannabis) abuse/dependence.
35. In evidence, Dr Mulholland was referred to symptoms that the applicant had in 2002 and he said that this was probably the same psychiatric condition that he had in 1997. He also said that, if a supervisor told the applicant, at some point, that he was being persecuted in his work, this would increase the level of paranoia in an already vulnerable person. He said that this would not, by itself, cause a psychiatric condition but it would increase the tendency to paranoia.
36. Dr Mulholland said that benzodiazepine was medication from a group which included valium and which was used to treat anxiety and insomnia. He said that there is a tendency for a person to develop tolerance to the drug so that increased doses were needed. He said that this did not happen to everyone but that it had the potential to lead to a person taking increased dosages and that it could also lead to abuse and dependence on the drug as well as memory disturbance and confusion.
37. Dr Mulholland was referred to the affidavits of Noel Morris (Exhibit 4) and Rhonda Carrick (Exhibit 6) and said that these described a person with a satisfactory pre-morbid personality.
38. Dr Mulholland said that he had been aware of the deaths of the applicant’s parents and said that these factors would heighten a person’s emotional state especially in the case of someone who was already psychiatrically unwell. However, he said any aggravation would be time-limited and the experiences would not have caused a psychiatric condition.
39. In cross-examination, Dr Mulholland said that cannabis use had the capacity to prolong, aggravate and worsen depression and that this was also the case with the use of benzodiazepine. He said that, in reaching his conclusions about the applicant, he had relied upon the history given to him about what had happened in the workplace.
40. In relation to non work-related matters, Dr Mulholland said that the applicant’s involvement in the Anti-Discrimination Commission proceedings would have aggravated his emotional state and that, while there was some continuing aggravation from that source, this was not the primary cause of the applicant’s psychiatric condition. He was referred to the assault on the applicant by a taxi driver in 1996 and he said that this would have caused a temporary aggravation of the condition.
Roxsean Edwards
41. Ms Edwards is employed by the ABC as the Manager of Production and Resources in Darwin. She identified an affidavit that she completed on 6 March 2001 for the purposes of the proceedings before the Anti-Discrimination Commission relating to the applicant and the ABC (Exhibit 18). She said that she was employed as a television officer (production operations) (TOPO) at the ABC until September 1996 when she commenced maternity leave from which she returned on 28 September 1997. She said that, on 1 December 1997, she was appointed to the position of Resources Manager and was responsible for the management of staff and facilities in the production area where the applicant worked.
42. Ms Edwards said that before and after her maternity leave she had enjoyed a good working relationship with the applicant and that he congratulated her when she was promoted in December 1997. She said that night-shift staff were sociable because of their hours and would often eat meals together when they were on the same shift. She said that the applicant was overtly homosexual and would greet people with comments like "Hello darling!" but enjoyed a good relationship with most of the shift. She said that, later in December 1997, she had been required to respond to the applicant's Comcare claim and their relationship became a little strained thereafter. She described him as being a "high maintenance" employee and one she had to deal with on a daily basis. She said that she was aware that the applicant made general allegations against senior staff but said that he would not provide details in relation to these. She also said she was not aware of any persecution directed towards the applicant by ABC staff.
43. Ms Edwards said that the interchange area in which the applicant worked in 1997 measured 3.2 by 3.15 metres from wall to wall and that it was fitted with benches on which were located television monitors and audio equipment. She said it was necessary for an operator to sit close to the equipment in order to function properly. She said (Exhibit 18, attachment B) that the interchange area was professionally designed and that it had been inspected, as part of an auditing of the Darwin ABC premises by Comcare in August 1997 and that, while some aspects of the building as a whole were commented upon, the interchange area was not mentioned.
44. Ms Edwards agreed that the interchange area could be noisy at times and that the TOPOs were required to meet deadlines, especially in the period around news time. She said that, in 1997, there was an increase in workload because of the introduction of programming for Australian TV which was virtually another television station run from Darwin for the Asian market. She said that most of the programming was done in other parts of the building but that the area in which the applicant worked and in which he was located was responsible for items such as the news but she denied that there had been a tripling of the workload in 1997 and she said that the interchange area was not a place of high pressure work although she agreed that she had not been on leave at the time when the applicant first became ill. She said that much of the material was collected from various sources and edited in the afternoon for display that evening.
45. Ms Edwards identified Exhibit 11 as representing the applicant's duty roster from 1995 until he finished work with the ABC. She said that an employee's roster was drawn up but that the actual work undertaken by a particular employee was recorded under the heading "star roster" in that exhibit. She said that, although the applicant was regularly rostered to work in the interchange area, he had, because shifts were rotated, actually spent most of his shifts doing studio audio work. Ms Edwards said that she was aware of the terms of his return-to-work agreement to which the applicant had agreed and and said that she had assisted in its implementation. She said that it involved shifts of video work in the interchange area as well as studio audio work.
Colin Palmer
46. Mr Palmer identified a statement completed by him on 15 March 2004 (Exhibit 20). Therein, he said that he commenced employment with the ABC in 1974, that he was the National Employee Relations Manager in April 1996 and became the Director of Human Resources in 2001. He said that he had been involved in an investigation which raised management issues in Darwin and that this was connected with the subsequent departure from the ABC of two former employees. He said that many staff were routinely questioned as part of the investigation and that, apart from any such routine questioning, the applicant had no material role in the audit or the investigation and did not provide any information that was pivotal or material in the outcome of the investigation or the subsequent staff departures from the ABC.
47. Mr Palmer said that aspects of the investigation included the manner in which expenditure items were written off by staff members, whether proper auditing procedures were followed and whether there had been appropriation of ABC property. He said that he could recall having discussions with the applicant but was not certain of the timing of this though he thought that it was in 1997 or 1998.
Dr N McLaren, Consultant Psychiatrist
48. Dr McLaren has been responsible for treating the applicant since he was referred to him by Dr Brownjohn in October 1997. In evidence were his clinical notes and also several reports completed by him between October 1997 and June 2003 (Exhibits 7, 14-17 and 22; and documents T29, T46, T47, T57, T59 and T64).
49. In the first of his reports, Dr McLaren described the applicant as having “cracked-up at work” and as having a moderately severe stress reaction extending back for six months. In subsequent reports, Dr McLaren expressed the opinion that the applicant’s mental state was related to circumstances surrounding his employment with the ABC. He variously described the condition and, in a report dated 7 November 2002, wrote:
“It would be difficult to give an unequivocal psychiatric diagnosis but I think it would be fair to say that he shows features of a chronic major depressive condition in the setting of an anxious-paranoid personality, generalised anxiety disorder, panic attacks, social phobia and intermittent reactive paranoid psychotic episodes.”
50. In his evidence, Dr McLaren was invited to assume that the applicant had not actually been harassed or persecuted in the workplace. He said that it was common for people to develop paranoid ideas and have a perception that these things are happening to them. He said that this can result in the belief that they are the victims of malicious conduct and he said that some 60 to 80% of people are able to develop significant symptoms of paranoia.
51. Dr McLaren said that, if the applicant had been told by a supervisor that he was being persecuted by other members of staff, this would intensify any feelings of distress. He said that, if this occurred in a setting of increased workloads, there would also be an intensification. He said that he had been treating the applicant since 1997 and that he had seen no change in his presentation of symptoms although he thought that, in December 1998, he had been more paranoid but that this was directed to other agencies such as the police and Comcare. He said he was aware that the applicant’s parents had passed away and he said that this was something which, like others, he would overcome. He also said that the litigation in which the applicant had been involved was also a stressor for him. He said that such litigation was a complicating factor which would intensify and maintain a problem but would not be causally related to the condition.
52. Dr McLaren said that the applicant had been taking benzodiazepines, which he described as a minor tranquilizer, to assist him in sleeping. He said that the applicant was no longer taking this medication and yet his condition remained the same. He also said that consumption of alcohol and a small amount of cannabis would have no effect on the applicant’s condition.
53. In cross-examination, Dr McLaren agreed that the applicant had made reference to problems with his employer because he had been a whistleblower but said that this had not been the focus of his initial complaints in October 1997. Dr McLaren was referred to part of the history taken by Dr Mulholland where the applicant is described as having “busted” the ABC management in relation to fraud and he agreed that no reference was made to this in his notes.
54. Dr McLaren was referred to his report of 6 November 2000 (T29) where he described the main issue in the applicant’s life at that time as being the proceedings in the Anti-Discrimination Commission. He said that this did not mean that the underlying harassment problems were no longer significant but that the focus of the applicant had changed. He said that it was only one of the issues relevant at the time. He was also referred to the following passage in his report dated 20 January 1999 (T47):
“The causation of his psychosis lies, I believe, in the stress reaction he has suffered over the past 16 months or so. At the time he described events to me, it seemed that there was little doubt that he was accurately describing constant harassment at work but was also quite clear that he showed little ability to resist or deal constructively with these types of incidents. It might be argued that there was in fact no persecution, that from the outset, it existed in his mind only but I doubt very much that this is the case.”
55. He was referred to his clinical notes and, in particular, to that dated 5 March 2001 where he wrote:
“Utterly preoccupied with his cases next week, low, despairing, sleeping poorly, alcohol – half bottle vodka.”
56. He was also referred to the note dated 24 May 2001 where he again referred to the applicant as being “utterly preoccupied by the case to the exclusion of any semblance of life”. Dr McLaren agreed that there was some justification for concluding that these comments revealed some inconsistency with his references to litigation as being not of great significance to the applicant. However, he said that, from time to time matters such as this would arise but that they would subside into the background and yet the applicant would revert to his condition. Dr McLaren agreed that he had relied upon the history given to him by the applicant when forming his opinions and that he had accepted the applicant’s accounts as being accurate.
Dr Frank Varghese, Consultant Psychiatrist
57. Dr Varghese saw the applicant on 21 March 2002 and prepared reports, dated 3 May 2002 (T14) and 25 August 2003 (Exhibit 24). He said that he had read the reports of Dr Mulholland as well as the reports and some of the clinical notes of Dr McLaren. He said that his opinion was that the applicant suffered from recurrent major depression which was in remission when he saw him and that his principal problem was substance dependence with possible underlying dysthymia. He identified these substances as benzodiazepine and alcohol. He said that the factors referred to by the applicant as being responsible for his condition were problems of discrimination and harassment at the ABC and he told him that it started when he revealed that senior ABC staff had been illegally selling ABC equipment and that, after these whistleblower actions by him, the attitude of ABC staff toward him changed.
58. Dr Varghese was asked to assume that the applicant had not actually been the victim of harassment in the workplace and he said that, if a person had an adjustment disorder, this may lead to paranoid ideas. He said that if the adjustment disorder was not severe, this would not normally happen though it may lead to transient thought problems. He said that, by definition, if a person has an adjustment disorder, it would disappear when the stressor was removed and he said that, in the event that there was ongoing paranoid thinking, it would not be due to an adjustment order.
59. Dr Varghese said that non work-related matters were referred to by the applicant. These included the death of his parents in 1997 and 1998 within nine months of each other, the difficulty had in obtaining leave to attend a funeral and also relationship problems.
60. Dr Varghese said that prolonged and heavy use of cannabis could lead to dysthmia and depression and that alcohol and benzodiazepine in combination could aggravate the condition. He also said that the use of cannabis can lead to paranoid thinking. He said that he had noted the two hypotheses which had been put forward by Dr Mulholland in his report of 29 January 2004 (Exhibit 9) and he agreed that either of them could be relevant in the applicant's case.
61. Dr Varghese said that, if a person was suffering from a depressed mood, advice given to him by another that he was the subject of discrimination would make him more vulnerable to feelings of paranoia. He said that, if a person did not feel good about himself, such comments would make him believe that others did not hold him in high esteem.
62. Dr Varghese agreed that the cause of benzodiazepine abuse was multifactorial and that, initially, his use of the drugs was based upon treatment for anxiety and distress. He said that this no longer pertained and that there is now a physical dependence on it. He conceded that there were iatrogenic elements involved in that it had been a prescribed drug in 1997. He agreed that the death of the applicant's parents in 1998 and 1999 would not have had any impact on his psychiatric state in 1997. However, he said that such events could lead to depression which was pathological in nature.
63. Dr Varghese said that he was able to declare with reasonable confidence that the applicant's ongoing depression was related to his use of benzodiazepine but he conceded that it would have developed before he commenced the use of that drug.
64. Dr Varghese was referred to the clinical notes of Dr McLaren, dated 6 October 1997, where the applicant described difficulty in dealing with daily activities. He said that this was typical in cases of persons suffering from depression with anxiety and that it may also be a consequence associated with the taking of drugs. He also said that these difficulties with external activities would not be the cause of the depression but rather a consequence of it. He was referred to the report of Dr Brownjohn, dated 29 August 1997 (Exhibit 12), where reference is made to the effects upon the applicant of being assaulted by taxi driver the said that this further supported what he said that external influences were responsible for the applicant's depression. He said that this was also supported by references in the report of Dr Brownjohn, dated 24 March 1998 (Exhibit 21) where he made reference to the death of a friend and to the presence of his father's terminal cancer.
Other Medical Evidence
Dr Barrie Kenny, Consultant Psychiatrist
65. The applicant was seen by Dr Kenny on 15 March 1999 and he prepared reports, dated 18 March 1999 (T11) and 26 April 1999 (T60). He said that the applicant described problems in the workplace and these included not allowing him to get moved out of the area in which he was working even though it was cramped and demanding. He also said that he been a whistleblower when he started at the ABC and that, in recent times, senior staff had begun hassling him and accusing him of everything that went wrong and alluding to his homosexuality.
Dr John Burvill, Consultant Psychiatrist
66. Dr Burvill saw the applicant on 30 March 1999 and prepared a report, dated 9 April 1999 (T62). He described the applicant as giving an account of workplace difficulties at the ABC, in particular, being unable to move out of his area of work and of being stuck in that area undertaking the same shift every day; of being wrongly accused of harassing the newsreader in relation to the movement of a microphone; of being subjected to sexual references such as "poofter"; and of having made exposures of situations of fraud at the ABC. He also referred to the significance of other stressors in the applicant's life including the breakdown of a relationship with a partner of eight years standing.
67. Dr Burvill said that the applicant showed no evidence of a psychological depressive illness or evidence of anxiety and that he was not unable to find an appropriate diagnosis. He described the precipitating factors for the applicant's problems as being his sense of emotional disquiet arising from the perception of the way he was dealt with in the workplace, partly due to his sexual orientation and partly due to the refusal to allow him to rotate his work situation. He said that the death of the applicant's father with the breakdown of his relationship were not of relevance to his presenting condition.
Dr Leonard Marinovich, Psychiatrist
68. Dr Marinovich saw the applicant on 8 December 1997 and 10 July 1998 and completed reports on 9 December 1997 (T70) and 13 July 1998 (T72). In his first report, he recorded a history provided by the applicant as including problems in the interchange area because of its size. He wrote:
“He said that he had been transferred out of the interchange room into the studio/audio area which was fine and which he could handle without difficulty. However, the roster is such that he said he has to rotate into the interchange area and that was what was upsetting him.
He described how he can go back to work and continue in the studio/audio area without difficulty. If he does not have to go to the interchange area, he said it would be ‘paradise’. He described how he had made frequent requests to come out of the interchange area but these requests have been ignored. He is a very happy in the studio/audio area and he does not want to go back to ‘on the road’ work. This is especially as he said that the studio/audio work here is good, he does it well and is happy there.”
69. Dr Marinovich made reference to the prognosis of the applicant's condition in the following way:
“This is basic league if it can be established and that he is no longer to attend the interchange area. As it stands at present, if he is rotated back into the interchange area, then his condition will not settle and may even get worse. Thus, the prognosis depends entirely on an administrative decision of not putting him back into the interchange area. He again reiterated how he felt ‘perfect out of there’, ie, the interchange room.”
70. In his second report, Dr Marinovich gave the opinion that the applicant suffered from reactive depression and said that the condition arose directly out of the problems that he had in the workplace. He noted that the applicant had returned to work in the studio/audio area, had remained there until March 1998 and had not worked since. He continued:
“He described how it was fine for him in studio/audio to begin with but, progressively, harassment was undertaken against him by other staff. He described how he felt he was being set up all the time, to the point where he was ‘damned if he did and damned if he didn't’.”
71. Dr Marinovich recounted examples of what the applicant described as problems in the workplace and these included the incident with the microphone and the news presenter and problems with being denied his regular meal breaks. He continued:
“He has been told by a previous supervisor that management intend to get rid of him, and he sees the present program as part of that strategy.
Thus, under the stress of these problems in studio/audio (which were not there earlier when he moved into studio/audio), there has been a return of his reactive depression. This is basically the same disorder as he had before and does not represent a new disorder or a new claim. This reccurrence of his disorder is a result of stresses in the workplace, including studio/audio, as outlined earlier in this report.
As a result of the re-activation of his underlying psychiatric condition, he has reached a point where he is no longer fit to work in the work situation with its stresses that he describes.
In my opinion, his present condition is a direct consequence of the pressures in the workplace and represents basically the same disorder about which I reported late last year, as further stresses have been occurring in the new work area, thus occasioning a re-activation of his condition.”
Submissions
72. Mr Rangiah submitted that the applicant continued to suffer from anxiety disorder/depression which was a disease and, therefore, an injury, as those terms are defined in section 4 of the Act and that the circumstances of his employment with the ABC continued to make a material contribution to that condition at the date of the respondent's decision to cease liability and thereafter. He submitted that he developed paranoia during 1998 to which he was vulnerable because of his psychiatric condition and which was contributed to by information provided to him by his former supervisor about adverse attitudes of ABC management to him. He submitted that the applicant had developed a dependence upon his medication which had been prescribed for him because of his psychiatric condition in the form of benzodiazepine and that he also self-medicated for relief by utilising alcohol and cannabis. He submitted that none of these factors took away from the fact that the applicant’s psychiatric condition was related to his employment circumstances in 1997 from which he had not fully recovered at any stage. He also submitted that the condition in the applicant was now permanent.
73. Mr Clark submitted that any psychiatric condition from which the applicant suffered at the time of the respondent's decision to cease liability was no longer related to any aspect of the applicant's employment. He submitted that the applicant was an unreliable witness who gave varying accounts of many aspects of his case including the information that he was provided by Mr Allsop. He submitted that there had been no sexual harassment of the applicant and that any perceptions of such harassment or victimisation by management had not occurred and, therefore, could not be taken into account as relevant circumstances in the workplace to which a causal association with his psychiatric condition could be attributed. He submitted that the medical evidence revealed many other stressors in the applicant's life which had been responsible for the ongoing nature of any psychiatric condition which he suffered from and that the decision to cease liability had been properly made. He also submitted that the applicant did not suffer from any permanent impairment from any work-related disease or injury.
Consideration
74. Two reviewable decisions were made by the respondent on 5 August 2002. The first of those brought compensation payments to an end by ceasing liability under section 14 of the Act with effect from that date and the second denied liability for compensation for permanent impairment in relation to section 24 of the Act.
Cessation of Liability
75. The respondent’s initial decision on 20 May 1998 accepted that it was liable under section 14 of the Act to pay compensation to the applicant for anxiety disorder/depression which was related to his employment. Necessarily, that involved findings by the respondent that an appropriate notice of injury had been given; that a claim for compensation had been made as required; that the applicant was an employee at the relevant time; that he suffered an injury or disease; and that the injury or disease resulted in incapacity for work or impairment: see Lees v Comcare (1999) 56 ALD 84 at 92. Having accepted liability under section 14 of the Act, the respondent made a series of further determinations whereby it reimbursed the applicant for various medical expenses in accordance with section 16 of the Act and paid compensation to him in accordance with section 19 of the Act. In its further determination on 19 July 1999, the respondent recognised that the applicant continued to suffer from the effects of the initial injury and continued its liability although it did so for the condition which it then described as adjustment disorder. Again, this necessarily required it to make the findings noted above.
76. There is a distinction between a decision which revokes a determination under section 14 of the Act and one which merely brings liability to an end because the condition no longer attracts payments for medical expenses or for incapacity. In Re Carson and Telstra Corporation (2001) 33 AAR 351, the Tribunal observed that a revocation decision under section 14 of the Act would be rare as it would involve revisiting the five matters listed above in Lees v Comcare: see also Australian Postal Corporation v Oudyn [2003] FCA 318 at para [32]. The Tribunal pointed out that a cessation of liability decision may frequently arise in reconsidering matters under sections 16 or 19 of the Act. In this matter, the first of the decisions under review merely ceased liability with effect from 5 August 2002 and did not purport to revoke the original decision. Not uncommonly in matters of this kind, much of the cross-examination of the applicant was in respect of the incidents surrounding the applicant's working environment in 1997 and 1998 when he first developed a psychiatric condition. However, I am satisfied that this was not done for the purpose of challenging the initial decision to accept liability but to demonstrate that inconsistent accounts may have been given by the applicant. Accordingly, it is not in dispute that the applicant had suffered from a work-related psychiatric condition and the issue is whether, as at 5 August 2002, he continued to do so.
77. Dr Marinovich, Dr Kenny and Dr Burvill saw the applicant on various dates between December 1997 and March 1999 and, therefore, some years before the relevant date, 5 August 2002, from which the respondent ceased liability. Dr Varghese saw the applicant on 21 March 2002 and said that the applicant suffered from recurrent major depression which was in remission when he saw him and that his principal problem was benzodiazepine and alcohol dependence with possible underlying dysthymia. After Dr Mulholland saw the applicant on 7 March 2003, he said that the most likely diagnosis was major depressive disorder and generalised anxiety disorder and he said that he remained moderately seriously psychiatrically ill. After he saw him on 11 March 2004, Dr Mulholland confirmed those diagnostic references and added that he also suffered from chronic substance (cannabis) abuse/dependence.
78. Dr McLaren has treated the applicant since October 1997. In November 2002, he said that, while it was difficult to give an unequivocal psychiatric diagnosis, the applicant had features of a chronic major depressive condition in the setting of an anxious-paranoid personality, generalised anxiety disorder, panic attacks, social phobia and intermittent reactive paranoid psychotic episodes. Dr McLaren said that the applicant had become dependent upon benzodiazepine and this was prescribed for him as part of the treatment for his anxiety symptoms. Dr McLaren said that he had also used cannabis and alcohol to assist him but that, despite the fact that he had not been consuming excessive quantities of these substances during 2003, there had been no discernible change in his mental state.
79. On the basis of the medical evidence, in particular that of Dr McLaren who has seen the applicant on many occasions over several years, I am satisfied that the appropriate diagnosis for the applicant's psychiatric state is that which was attributed to him in the respondent's initial decision. This is anxiety disorder/depression. I am also satisfied that he suffered from this condition at and from the time when the respondent ceased liability.
80. The issue then is whether the applicant’s anxiety disorder/depression in August 2002 was causally associated with circumstances present in the workplace at the ABC. This requirement will be met if these made a material contribution, as that term is explained below, to the continuation of the condition for the purposes of section 14 of the Act. As to the nature of the contribution which is required, in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, the Federal Court said (at 328):
“The causal 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.”
81. Dr Mulholland identified alternative scenarios to explain the applicant’s psychiatric condition. These were that he developed a depressive illness which was complicated by substance abuse and histrionic and paranoid behaviour independent of his work situation; or the work situation was causal in the development of a psychiatric illness characterized by chronic depression, substance abuse and histrionics and paranoid behaviours which has continued to be aggravated by and contributed to by unresolved litigation. He was to unable to decide as between those two scenarios but said that it would be reasonable to assume a work-relationship if the following factors were met: his basic pre-morbid personality was reasonably satisfactory; he was subjected to significant work related stress; and there were no other significant stressful life events.
82. As to the first of those, I accept as correct the observation by Dr Mulholland that the affidavits of Noel Morris (Exhibit 4) and Rhonda Carrick (Exhibit 6) describe the applicant as a person with a satisfactory pre-morbid personality.
83. As to the second matter referred to by Dr Mulholland, much of the respondent's submissions were directed to activities at the ABC in 1998. However, the psychiatric condition of the applicant was initially accepted by the respondent on the basis of events that occurred to him in 1997 and, as noted above, it has not sought to revoke that decision and it is not under challenge. There are some inconsistencies in the applicant’s evidence in relation to what occurred to him during 1997 in the lead-up to the initial diagnosis of his psychiatric state by Dr McLaren. For example, despite the applicant’s references to being engaged on almost a full-time basis in the interchange area of the ABC offices, his work roster demonstrates that, during 1997, he was occupied in that facility for less then one-half of his working time.
84. Nevertheless, I am satisfied that his duties presented him with adjustment difficulties and that these had a role to play in the development of his psychiatric condition as diagnosed by Dr McLaren. Clearly, that was the opinion of Dr McLaren at that time; Dr Mulholland was of the opinion that working in a stressful work environment with increased workload could lead to the symptoms described by Dr McLaren; Dr Varghese conceded in his evidence that the condition had developed in the applicant before he commenced to use benzodiazepine; and Dr Marinovich, in December 1997, was able to relate the applicant's condition directly to problems in the workplace. Therefore, I accept that the underlying psychiatric condition of the applicant had the requisite nexus with his employment, as determined by the respondent in May 1998.
85. Further to the second matter referred to by Dr Mulholland, reference must be made to the 1998 work-related issues. These amount to a sense of persecution by the applicant because of sexual harassment or victimisation by management. Mr Rangiah conceded, on the basis of the findings of the Anti-Discrimination Commission, that there was no sexual harassment and I am satisfied that this concession was properly made. I accept the evidence that Ms Edwards gave in relation to management practices in this matter and am satisfied that there was no actual victimisation of the applicant by management at the ABC. Nevertheless, I have noted the evidence of Dr McLaren that persons with depression commonly develop paranoid ideas, and the evidence of Dr Mulholland that, if the applicant were given information by a supervisor about adverse management attitudes toward him, this could increase the levels of paranoia in an already vulnerable person. In that regard, I accept the applicant's evidence that he was advised by Mr Allsop, probably after Mr Allsop left the ABC in November 1997, that persons in ABC management entertained such adverse attitudes. Dr Varghese was also the opinion that a person with depressed mood, given such advice, would also be more vulnerable to feelings of paranoia.
86. The third matter referred to by Dr Mulholland was the role played by other significant stressful life events. In this case, there was evidence of an assault on the applicant by taxi driver, of the death of his parents and of the effects upon him of his involvement in litigation processes. Dr McLaren and Dr Mulholland expressed the opinion that, while such influences may have aggravated the applicant's emotional state, this would have been on a temporary basis and these factors would not have borne a primary responsibility for the development of his depressive condition.
87. Another factor for consideration is the effect on the applicant of substances such as benzodiazepine, upon which the applicant developed a dependence, and cannabis, which he used from time to time prior to 2003. The evidence is that the benzodiazepines were prescribed for the applicant because of his depression and anxiety disorder and Dr Mulholland said that there was a tendency for a person to develop tolerance to the drug. Dr Varghese, whilst noting that the applicant had developed a dependence on benzodiazepine, conceded that its initial ingestion was iatrogenic. Dr Mulholland considered that cannabis use had the capacity to prolong or aggravate a depressive mood. Dr McLaren was of the opinion that this would not affect the applicant's condition and I accept his evidence that the cessation of cannabis and benzodiazepine use has not resulted in a significant change in the level of the applicant's psychiatric symptoms. While I am satisfied that there were factors external to the applicant's employment activities which had some impact, from time to time, on his emotional state, I am also satisfied that these have not had a permanent effect upon his psychiatric condition.
88. In his evidence, Dr Mulholland said that the symptoms that the applicant displayed in 2002 were probably due to the same psychiatric condition that he had in 1997 and that is the opinion that Dr McLaren has held during his years of treating the applicant. Dr Mulholland also said that, once psychiatric conditions develop, they take on a life of their own and tend to be self-perpetuating. In the applicant's case, while I am satisfied that some elements of his present psychiatric state are related to factors external to his work environment, I am also satisfied that there is a continuing contribution from the initial condition as diagnosed in 1997 and from the work-related factors which were then found to be causally associated with its development. In that sense, I am satisfied that there has been material contribution, as that term is explained in Treloar v Australian Telecommunications Commission (above), to the applicant's anxiety disorder/depression, in the manner required for the purposes of section 14 of the Act. The respondent has not revoked the initial decision in which it accepted liability for the applicant's anxiety disorder/depression and I am satisfied that he continued to suffer from that condition on 5 August 2002 and that the decision to cease liability from that date should be set aside.
Permanent Impairment
89. The definitions of impairment and permanent in sub-section 4(1) of the Act are set out above and any impairment in the applicant will be permanent if it is likely to continue indefinitely. Regard must be had to the factors in sub-section 24(2) of the Act when determining whether an impairment is permanent: the duration of the impairment, the likelihood of improvement, whether the employee has undertaken all reasonable rehabilitative treatment and any other relevant matters.
90. As at the date of the respondent's decision to reject his claim for payment and impairment, the applicant had suffered from his psychiatric condition for almost five years. Dr McLaren, in his report of 18 February 2003, expressed the opinion that the applicant's condition is permanent and that he is unfit for any gainful occupation. In his report of 11 March 2004, Dr Mulholland expressed the opinion that it was more likely than not that the applicant would remain severely psychiatrically impaired for the foreseeable future and that he will need to have ongoing intensive psychiatric treatment. The applicant has been under constant treatment from Dr McLaren without moderation of his symptoms, and attempts to re-engage in employment, at the ABC in 1998 and with the Australian Aboriginal Legal Aid Service in 1999 proved unsuccessful. I am satisfied that, having regard to factors in subsection 24(2) of the Act, the applicant's anxiety disorder/depression has resulted in permanent impairment for which the respondent is liable to pay compensation to him. The decision under review to reject the applicant's claim for permanent impairment should be set aside.
91. Pursuant to subsection 24(5) of the Act, the degree of permanent impairment is to be determined in accordance with the provisions of the approved Guide. It was submitted by Mr Rangiah that this matter should be remitted to the respondent for that determination to be made and I am satisfied that this is appropriate in the applicant's case.
Decision
92. The Tribunal set aside decisions under review and substitutes its decisions that:
(i)the respondent is liable to continue to pay compensation to the applicant for anxiety disorder/depression in accordance with section 14 of the Act;
(ii)the applicant suffers from permanent impairment from anxiety disorder/depression which is causally related to his employment in accordance with section 24 of the Act;
(iii)the matter of determining the degree of permanent impairment is remitted to the respondent; and
(iv)the respondent is liable to pay the applicant's costs in accordance with the terms of the Practice Direction.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 17, 18 March and 27 April 2004
Date of Decision 25 May 2004
Counsel for the Applicant Mr D Rangiah
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Phillips Fox
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