Scicluna and Australian Postal Corporation (Compensation)
[2018] AATA 3972
•8 October 2018
Scicluna and Australian Postal Corporation (Compensation) [2018] AATA 3972 (8 October 2018)
Division: GENERAL DIVISION
File Number(s): 2015/2114
Re:Peter Scicluna
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Member K Parker
Date:8 October 2018
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution, decides that:
(a)Mr Scicluna has suffered a psychological injury of “adjustment disorder with depressed mood” taken to have occurred on 2 September 2013, resulting in a degree of permanent impairment under Table 5.1 of The Guide to the Assessment of the Degree of Impairment, Edition 2.1 (approved Guide) of 10 per cent, and the Australian Postal Corporation (APC) is liable to pay compensation under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of that injury;
(b)APC is liable to pay additional compensation to Mr Scicluna under s 27 of the Act in respect of the injury referred to in the above paragraph, to be calculated on the basis that the degree of non-economic loss derived in accordance with Division 2 of Part 1 of the approved Guide is 28.67 per cent; and
(c)Mr Scicluna has suffered a further psychological injury, an “aggravation of pre-existing PTSD” (with the date of injury being 15 July 2016), which has not, at this stage, resulted in permanent impairment. Accordingly, APC is not liable to pay compensation under s 24 or additional compensation under s 27 to Mr Scicluna in respect of this injury.
.................................................
Member K Parker
WORKERS’ COMPENSATION – claim for compensation for permanent impairment and non-economic loss under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether psychological condition(s) constituted an injury or injuries as defined under the Act – injury or disease – ailment or mental ‘injury’ in the primary sense of the word - adjustment disorder with depressed mood – aggravation of pre-existing PTSD – whether each injury has the requisite connection with employee’s employment – adjustment disorder arose from previously accepted physical injuries and other factors - aggravation of pre-existing PTSD arose from an incident between the employee and co-worker outside of the workplace – pre-existing condition of post-traumatic stress disorder arose from an act of violence by same co-worker that took place many years earlier in the workplace – deeming provision under s 6(1)(a) – whether exceptions under s 14(2) or (3) applied - whether injury resulted in permanent impairment - assessment of percentage degree of psychiatric impairment – assessment of percentage degree of non-economic loss – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 6, 14, 24, 27, 28
CASES
Canute v Comcare (2006) 226 CLR 353
Commonwealth v Beattie (1981) 53 FLR 191
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
SECONDARY MATERIALSThe Guide to the Assessment of the Degree of Impairment – Edition 2.1 (effective 1 December 2011)
REASONS FOR DECISION
Member K Parker
8 October 2018
BACKGROUND
Mr Peter Scicluna has worked as a permanent full-time employee of the Australian Postal Corporation (APC) in the position of “Postal Delivery Worker” for the last 15 years. He is 51 years old and lives with his wife and children in Koo Wee Rup in Victoria.
During Mr Scicluna’s employment with APC, he sustained a number of physical injuries and submitted claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). As a result of his physical injuries, Mr Scicluna also developed a psychological condition. APC accepted liability under s 14 of the Act with respect to most of his claims.
In February 2015, Mr Scicluna submitted a claim for compensation under s 24 and s 27 of the Act in respect of “psychological condition – depression – adjustment mood disorder”.[1] APC did not accept this claim.[2] Mr Scicluna sought reconsideration of APC’s decision.[3] Upon reconsideration on 12 March 2015, APC affirmed its decision not to accept this claim.[4] Mr Scicluna seeks review of the APC reconsideration decision by this Tribunal.
[1] In accordance with APC’s obligations arising under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), it lodged a set of documents with the Tribunal on 30 September 2014 (in 2014/4164 & 2014/4232) and a further set of documents on 2 June 2015 (in 2015/2114), which the Tribunal will refer to collectively as the T-Documents. Refer T-Documents T121/399-412.
[2] Refer T-Documents T122/413&414.
[3] Refer T-Documents T123/415&416.
[4] Refer T-Documents T124/417-419.
Mr Scicluna contends that the Tribunal should set aside APC’s reconsideration decision and in substitution, should make a decision that on 16 August 2017, he suffered a psychological injury that has resulted in 25 per cent permanent impairment (or in the alternative, 10 per cent) under The Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (approved Guide) (as referred to in s 28 of the Act). He contends that consequently, APC is liable to:
(a)pay compensation under s 24 of the Act for permanent impairment at the level stated above;
(b)pay additional compensation under s 27 of the Act for non-economic loss suffered by him on the basis that total score derived, in accordance with Table B1 to B5 inclusive, is 19; and
(c)pay Mr Scicluna’s reasonable costs and disbursements in accordance with s 67 of the Act.
APC agrees with Mr Scicluna that the evidence discloses that he suffers from a psychiatric condition appropriately described as “adjustment disorder with depressed mood”.[5] APC notes that two of the psychiatrists who gave expert evidence in this application differed as to whether Mr Scicluna also suffers from “post-traumatic stress disorder” (PTSD). APC contends that whether or not Mr Scicluna also suffers from PTSD is not significant for the purposes of the Tribunal deciding this application, because PTSD would relate entirely to an incident in 2016 involving an assault on Mr Scicluna, for which he has not made an claim under the Act.
[5] Refer [34] of APC’s Closing Submissions (dated 27 October 2017).
APC contends that there is “no intelligible or navigable path of reasoning based on the evidence”, to justify a finding that Mr Scicluna has a permanent impairment of 10 per cent, or a permanent impairment that exceeds 10 per cent.[6] APC contends that there are “gaping holes” in the evidence required to found an entitlement to permanent impairment compensation in respect of the psychiatric evidence.[7] APC also contends that there were other factors and incidents unrelated to the accepted physical injuries, that continued to significantly contribute to Mr Scicluna’s mental state. APC contends that the Tribunal must confine itself to the effects on Mr Scicluna’s mental state of the accepted physical injuries and that Mr Scicluna had not presented evidence that would allow the Tribunal to disentangle the factors contributing to his psychiatric condition as being related to the accepted physical injuries from those that are not.[8] APC contends this is fatal to Mr Scicluna’s application.[9]
[6] Ibid at [14].
[7] Ibid at [16].
[8] Ibid at [21].
[9] Ibid at [22].
APC also contends that if the Tribunal held that Mr Scicluna was entitled to compensation under s 24 of the Act, it would not be appropriate for it to determine the question of quantum under s 27 of the Act “due to the state of the evidence” and that this question ought to be remitted to APC for determination.
For the reasons set out below, the Tribunal sets aside the decision under review and substitutes it for the decision set out on page 1 of these Reasons for Decision.
LEGISLATIVE FRAMEWORK
Section 14 of the Act provides that liability arises to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A of the Act defines “injury” relevantly as follows:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; 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), that is an aggravation that arose out of, or in the course of that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the Act defines “disease” as follows:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the Act defines “ailment” as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 24 of the Act establishes an entitlement to lump sum compensation for an injury (as defined under the Act), that results in permanent impairment. The Act prescribes a maximum amount of compensation that can be paid under s 24.[10] A person who has a permanent impairment will receive a proportion of the maximum amount based on their assessed degree (expressed as a percentage) of permanent impairment determined under the provisions of Division 1 of Part 1 of the approved Guide.
[10] Refer s 24(9) of the Act (as indexed).
Section 27 of the Act provides that where an injury to an employee results in permanent impairment and compensation is payable in respect of the injury under s 24 of the Act, liability arises to pay additional compensation for non-economic loss suffered as a result of that injury or impairment. The formula for calculating the amount of compensation to be paid under s 27 of the Act relies on two variables: the first being the degree of impairment (as a percentage) determined under s 24; and the second being the degree of non-economic loss (as a percentage) suffered by the employee determined under the approved Guide.
Section 28(4) of the Act provides that the Tribunal is bound to apply the approved Guide in carrying out the review of an assessment of the degree of permanent impairment or degree of non-economic loss, and the review shall be carried out in accordance with the provisions of the approved Guide.
On and from 1 December 2011, Edition 2.1 of the approved Guide applies to permanent impairment claims under ss 24, 25[11] and 27 of the Act. Except for hearing loss, if the degree of impairment is less than 10 per cent, compensation will not be payable to the employee under s 24, nor by extension, under s 27.[12]
[11] An interim payment of compensation may be made at the request of the employee in certain cases, under the provisions of s 25 of the Act.
[12] Refer s 24(7)(b) of the Act.
Chapter 5 of the approved Guide deals with psychiatric conditions. Table 5.1 sets out, in the second column, the corresponding descriptions of the level of impairment required for the different whole person impairment percentages set out in the first column. The Notes to Table 5.1 include Note 1 which states as follows:
Table 5.1 includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
ISSUES
The primary issues to be determined in this application are:
(a)whether Mr Scicluna’s psychological condition(s) constitute an injury (or injuries) as defined under the Act;
(b)if so, whether the injury results in a permanent impairment;
(c)if so, for each injury:
(i)the degree of permanent impairment as assessed under Division 1 of Part 1 of the approved Guide (as a percentage) in order to determine the amount of compensation payable under s 24 of the Act; and
(ii)whether there is sufficient evidence before the Tribunal to assess the degree of non-economic loss suffered by Mr Scicluna; and if so, the degree of non-economic loss as assessed under Division 2 of Part 1 of the approved Guide (as a percentage) in order to determine the amount of compensation payable under s 27 of the Act.
An issue also arises as to whether APC should be ordered to pay Mr Scicluna’s costs under s 67 of the Act, in part or in full.
HISTORY
In 2005 Mr Scicluna was involved in an incident while he was delivering mail on a motorcycle. A car reversed out of a driveway, causing him to brake suddenly. He slipped off the seat, knocked his left shin, twisted his left knee and pushed back his wrist as he was braking. He submitted a claim for the injuries arising from this incident. On 6 February 2006, APC accepted liability for “strain left knee and strain right thumb”. Mr Scicluna returned to light duties initially; and eventually returned to full duties.
In June 2007, Mr Scicluna started to experience pain in his right thumb. His symptoms increased after performing the task of repetitive bundling of mail as he was required to do in his job.
In November 2007, Mr Scicluna married his current wife (Mrs Scicluna). This is Mr Scicluna’s second marriage.
In December 2007, Mr Scicluna reported pain in the right wrist and thumb, claiming that it was an aggravation of the 2005 injury. He made a new claim for compensation and liability was accepted by APC for “right thumb strain”. An MRI in February 2008 revealed the presence of multiple ganglia. Mr Scicluna received some treatment for this in about 2008. Mr Scicluna returned to full duties in September 2008.
In September 2008, Mr Scicluna was involved in a further incident at work where he fell off a motorcycle as he was travelling around a corner and slipped. He reported pain in his lower neck, between his shoulder blades, right and left thigh and right elbow region. He was placed on light duties. His symptoms resolved and he returned to full duties.
In December 2008, Mr Scicluna was involved in a verbal and physical altercation with a co-worker, Mr Darren McConville, at the Moorabbin Mail Centre. Mr Scicluna suffered bruises and cuts to his face. Following a workplace investigation about this incident, Mr McConville was demoted and transferred to Braeside Mail Centre and Mr Scicluna was disciplined and transferred to the Cranbourne Mail Centre. Mr Scicluna was unhappy about the way he felt he was treated by APC in relation to this incident.
On 24 April 2009, Mr Scicluna experienced another fall off a motorcycle during deliveries, falling onto his left side; following which, he reported left knee pain and pain from his lower back to the left Achilles tendon. An MRI scan revealed that he had a “partial tear of the left rectus femoris insertion” and an orthopaedic surgeon diagnosed him with a strain of his iliotibial band and posterolateral knee. He was placed on light duties for several months and had fully recovered by the end of 2009.
In April 2010 Mr Scicluna knocked his right hand on a trolley as he was merging mail. He noticed a lump on his right wrist, and based on advice from a hand therapist, he started to wear a splint on his right hand. He claimed an aggravation of his previous right thumb and wrist injury. In 2010, APC extended liability to include “right wrist ganglia”. A number of surgeries were performed on Mr Scicluna’s right wrist. In October 2010, Mr Tham excised the ganglion and performed right wrist arthrotomy surgery. The pain persisted. In May 2011, Mr Jason Harvey performed an arthroscopy, debridgement, ulnar synovitis debridgement, L-T ligament debridgement and lunate chondroplasty. Mr Scicluna was diagnosed with carpometacarpal arthritis and it was recommended that he have fusion surgery.
On 21 September 2012, Mr Scicluna was involved in another fall off his motorcycle during deliveries. The motorcycle slipped from underneath him and as he was jumping off, he took all of his weight onto his right leg, causing injury to his left knee and right ankle. He received treatment and was placed on light duties. He made a claim for compensation on 5 October 2012. APC accepted Mr Scicluna’s claim in respect of “strain right Achilles, strain left knee”. He was diagnosed with moderate chronic Achilles tendinitis and has two cortisone injections into the tendon in October and December 2012. The knee problems had resolved by this time. Mr Scicluna returned to full duties.
The recommended fusion surgery on Mr Scicluna’s right wrist took place in January 2013 and he received subsequent hand therapy until January 2014.
The problems with the right Achilles persisted and Mr Scicluna was found to have a bony enlargement on the back of his heel which was likely to have led to painful bursitis. On 16 May 2013, APC varied liability for Mr Scicluna’s claim relating to his right Achilles and left knee as follows: “strain right Achilles, strain left knee and insertional calcific tendinosis of the tendon”.
In May 2013, Mr Scicluna underwent further surgery to excise the bony enlargement on his right heel and to reattach the tendon. Following this operation, Mr Scicluna reported as becoming increasingly upset and frustrated because he could not perform his usual duties at work or recreation duties and could not proceed with renovations on his home. He reported low mood during July and August 2013 and commenced taking anti-depressant medication.
On 16 September 2013, Mr Scicluna requested that “depression” be included in the description of the injury with respect to this accepted claim. APC arranged for Mr Scicluna to be examined in 2013 by Dr Gregory White, psychiatrist, who diagnosed him as having “adjustment disorder with depressed mood” and who also considered that in time this condition should resolve. In November 2013, the APC amended the description of the injury for this claim as follows (emphasis added), “strain right Achilles, strain left knee and insertional calcific tendonosis of the tendon and temporary adjustment disorder with depressed mood”.
In December 2013, Mr Scicluna’s treating general practitioner advised that hand therapy was no longer required. In January 2014, APC decided that liability for ongoing hand therapy would cease. Mr Scicluna made a claim for permanent impairment compensation with respect to his right wrist, hand, thumb, fingers and loss of grip strength.
In late March 2014, Mr Scicluna was involved in a further incident where he fell off his motorcycle onto his right side.
In April 2014, Mr Scicluna was examined by a plastic and hand surgeon, Mr John Buntine, who concluded that Mr Scicluna’s reported ongoing pain in his right thumb and wrist were heavily influenced by psychological factors. APC denied Mr Scicluna’s claim for permanent impairment compensation. Mr Scicluna sought reconsideration of this decision and in July 2014, APC affirmed its decision not to accept his permanent impairment claim. In June 2014, APC also made a decision, on reconsideration, to continue to refuse payment of medical expenses and incapacity payments to Mr Scicluna on account of his previously accepted injury of “strained left knee and right thumb strain and right wrist ganglia”.
In September 2014, further surgery was performed on Mr Scicluna’s right heel (i.e. a calcaneal osteotomy and tendon repair), requiring him to take a month off work.
On 28 January 2015, Mr Scicluna lodged a claim for permanent impairment compensation for “psychological condition – depression – adjustment mood disorder”. This claim was denied by APC on the basis that active treatment for the condition had not been completed, as indicated by Mr Scicluna’s treating doctor on the claim form.
On 19 February 2016, Mr Scicluna submitted a claim for “right elbow – forearm” injury, which occurred in April 2014 from sorting, bundling, redirections using a “V sort frame”, and delivery of mail using a powered tricycle in a residential area. APC rejected this claim as it was not satisfied the claimed injury was connected with the duties performed by Mr Scicluna. This decision was reconsidered by APC and on 19 April 2016 affirmed on the basis that the claimed condition was not work-related.
MEDICAL EVIDENCE
Dr Irmgard Chia and Dr Ferghal Armstrong, treating general practitioners
Mr Scicluna has received treatment from two different general practitioners, Dr Irmgard Chia at Select Medical Clinic in Bangholme, and Dr Ferghal Armstrong from Blackfish Medical Clinic in Koo Wee Rup.[13]
[13] Refer Exhibit “R6” comprising clinical notes produced by Dr Armstrong. The clinical notes of Dr Chia were also produced under summons to this Tribunal.
On 2 September 2013, Dr Chia wrote to APC to inform the compensation manager that she had started him on an antidepressant medication, Pristiq 50mg, with an explanation that:[14]
[Mr Scicluna]… is suffering from depression as a result of his chronic right achilles condition. The chronic pain and disability is causing his depression, affecting his mood and motivation. The depression is also affecting his relationship with his wife and putting strain on his marriage.
[14] Refer T-Documents T57/173.
The compensation manager made a record of a conversation she had with Dr Chia on 2 September 2013 where she noted that Dr Chia told her that Mr Scicluna had been in her office crying that day and that he was very depressed in reference to the chronic pain to his ankle.[15]
[15] Refer T-Documents PT57/175.
On 18 September 2013, Mr Scicluna underwent a mental health assessment carried out by Dr Chia.[16] The report states that Mr Scicluna had depression following the divorce from his ex-wife. At that time, he did not take medication and received counselling through MensLine. This report also states that Mr Scicluna was diagnosed with “depression” in 2009, was taking Lexapro and had received counselling. It states that Mr Scicluna had a normal childhood growing up and had good relationships with his parents and three siblings. The report states that Mr Scicluna describes his relationship with his current wife as okay but it had been affected by his depression. It states they had increasing arguments “due to unfulfilled promises” and there was “increasing stress of his wife due to him being unable to help with house chores”, although his wife was “generally supportive”. The reports states that he “got snappy” with his wife with his children.
[16] Refer Exhibit “A2”.
Dr Chia’s report states that in the previous two weeks, Mr Scicluna had experience two altercations with two different co-workers. Dr Chia states the main problem was “depression – injury-related”. He states the predisposing factors as the “previous depression following divorce with ex-wife and wrist injury”. He states the precipitating factors as “multiple work-related injuries – right wrist and left foot” and the perpetuating factors were “loss of income (e.g. job as umpire); unable to help with house chores, proceed with house renovation; arguments with the wife and co-workers; and boring and non-stimulating tasks at work”.
In a letter dated 9 January 2015, Dr Chia states that Mr Scicluna was still suffering from a chronic right Achilles condition despite two operations and that he would be unable to ride a motorcycle or pushbike delivering mail in the long term as it would aggravate his condition. It was hoped he could participate in a “walk round” into the future. Dr Chia states that Mr Scicluna’s chronic pain and disability had affected his mood, causing “anxiety” and “depression”; and that he was on medication and seeing a counsellor. In Dr Chia’s clinical notes of his consultation with Mr Scicluna on this day, he described his depression as worsening. Dr Chia prescribed Mr Scicluna with a daily 50mg dose of Pristiq.
On 5 February 2015 Mr Scicluna attended Dr Chia’s clinic again. Dr Chia’s clinical notes describe an incident at Mr Scicluna’s workplace where he and a co-worker were told to “fuck off”, when they had asked for dividers. Mr Scicluna “lost his cool” and made a comment at work that management had “no balls to do anything about it” and he would “smack” the person if it happened again. It was noted that Mr Scicluna did not want to go back to work. It was also noted that prior to this he was feeling okay. Dr Chia increased Mr Scicluna’s prescribed dosage of Pristiq to two 100mg tablets per day.
In a letter dated 17 April 2015, Dr Chia states that Mr Scicluna attended his clinic on 5 February 2015 due to an incident at work. He states that Mr Scicluna had been suffering from “depression” for 18 months related to his injuries sustained at work and that he was struggling to cope with the right Achilles and chronic right wrist pain which were affecting his daily life. He said that Mr Scicluna required high dose medication and regular counselling. Dr Chia states that Mr Scicluna’s mental state was not normal and, “an incident such as what occurred on 5/2/2015 can upset him and cause him to react irrationally and resulted in him seeing me quite upset and needing the days [off] work. Without the depression, he would not have reacted that way and hence coped better”.
On 11 March 2015, Dr Chia reports in his clinical notes that he saw Mr Scicluna who told him at this time that he was working in the parcel hatch and there was a note that he was “coping well”.
Mr Scicluna saw Dr Chia again on 2 April 2015. He reported that his right Achilles was still a problem and that he was not ready for a “walk round”. The following week on 8 April 2015, Dr Chia’s records state that Mr Scicluna had reported that his Achilles pain was improving. A “walk round” was added to his duties on 11 April 2015 and two weeks later Dr Chia’s notes record that Mr Scicluna was “doing well” with the “walk round”.
On 22 June 2015, Dr Chia saw Mr Scicluna and he reported doing well with the exercise physiologist and that he found the pain management course to be “excellent”. He remained on two 100mg Pristiq tablets at this time. Dr Chia’s notes state that Mr Scicluna’s right hand was sore due to “bundling” activities.
In the clinical notes of Mr Armstrong (undated), he took the following history from Mr Scicluna:
Depressed due to work incident in past. Causing troubles with his marriage. Would like mental health care plan to enable access to counsellor.
Last MHCP was 18/9/13 with a different GP.
2 ankle operations, 3 wrist operations. Since injury 2005. Unable to work. Can’t do chores at home, moody, father died July, tearful, feeling down, stopped exercise. Financial burden.
Difficulty sleeping – both getting to sleep and waking up. Appetite. Weight gain. Previous suicidal thoughts but not current.
On 24 July 2015, Dr Chia saw Mr Scicluna and he reported “pulling up sore” after his walking rounds, which were up to three hours duration. He also reported having issues at home and that his wife was not coping with his depression. Dr Chia’s notes state they were arguing a lot and they had received “couples counselling”, but this had not helped. Dr Chia’s notes state that Mr Scicluna found it hard to control himself.
On 19 August 2015, Dr Chia saw Mr Scicluna and he reported the development of pain in his lateral right foot and that he was struggling to walk. Dr Chia’s notes also recorded the following:
Problem #2:- anger issues. Will blow at any time. Especially at home. Wife does not think he has depression. Emotional eating.
On 31 August 2015, Dr Chia saw Mr Scicluna and he reported continuing lateral foot pain; he was not doing walking rounds; and that APC refused to pay for an X-ray of his foot. Dr Chia’s notes from a telephone call with Mr Scicluna on 3 September 2015 record that he was “getting angry” with APC refusal to pay for the X-ray.
On 24 September 2015, Dr Chia saw Mr Scicluna in relation to the right Achilles tendinitis and they discussed an operation to lengthen his Achilles tendon. Dr Chia prescribed both Pristiq (in the same dosage as previously) and also Lipitor 20mg daily. There is a reference in Dr Chia’s notes to certifying Mr Scicluna fit to do delivery rounds on a tricycle.
Dr Chia saw him again on 22 October 2015, when Mr Scicluna had reported that he was enjoying the tricycle rounds and that he was almost doing a full round. The notes state he was attending the gymnasium three times per week and was running small distances. The notes refer to an increase in the pain in his right wrist. The notes also state:
Seen by psychiatrist. Parting comment not permanently impaired psychologically. He did not understand. I explained.
On 21 December 2015, Dr Chia saw Mr Scicluna. The notes record that he ran out of Pristiq; his mood declined; he went back on it and he was back to normal. The notes also record that he was seeing a psychologist and was having suicidal thoughts. He continued to experience soreness in his Achilles tendon.
On 22 January 2016, Dr Chia saw Mr Scicluna and recorded that he was coping with work and was delivering mail on the tricycle. He complained of a sore right elbow and that he had extended his elbow and wrist a lot as part of the delivery duties that he had been doing since September 2015. He went on restricted duties and by February 2016 had stopped delivering mail.
On 25 February 2016, Dr Chia saw Mr Scicluna and his notes appear to record that he had been running at the gym on the treadmill which had been fine, but he had shin splits (seemingly from running to this Tribunal in a rush). Dr Chia also prescribed Lipitor (20mg daily dose).
On 10 March 2016, Dr Chia saw Mr Scicluna and his notes indicate that Mr Scicluna’s right ankle had been sore and that his mood had been flat (with a reference to a fellow worker dying on the way home) and also that his right Achilles tendon affected his mood.
The same day, Mr Scicluna also saw Dr Armstrong. Dr Armstrong’s clinical notes cite as the reason for the visit, “disease;gastro-oesophag reflex”. Dr Armstrong created a Mental Health Care Plan for Mr Scicluna. On this day a “Patient Health Questionnaire (PHQ-9)” (comprising set questions) was completed indicating that that in the previous two weeks:
(a)on more than half of the days, Mr Scicluna had little interest or pleasure in doing things; was feeling tired or had little energy; and had trouble concentrating on things;
(b)nearly every day, he was feeling down, depressed or hopeless; had poor appetite or was over-eating; and was feeling bad about himself or that he was a failure, had let him or his family down;
(c)on several days, he had trouble falling/staying asleep or sleeping too much; was moving or speaking slowly or was fidgety or restless and had thoughts he was better off dead or of hurting himself in some way; and
(d)that the problems referred to above made it “somewhat difficult” for him to do his work, take care of things at home or to get along with other people.
Dr Armstrong’s clinical notes for this consultation (on 10 March 2016) state as follows:
Low mood for a long time >5 years. Grief reaction – death of father 18 [months]. Work issues – assaulted at work 2009. Works for Australia Post. Lawyers involved. Left school at 17. Married. Wife full time mum. Money tight. No forensics. No drugs or alcohol
On 22 March 2016, Dr Armstrong saw Mr Scicluna in relation to “benign prostatic hypertrophy”. The clinical notes record a statement made by Mr Scicluna that, “I do not think I will ever be happy”. The notes record “irritability, arguments with wife, sleep interrupted”. Dr Armstrong suggested adding Mirtazapine 15mg to Pristiq 200mg, with a note to review after he had discussed issues with “workcover doctor”.
On 8 April 2016, Dr Chia saw Mr Scicluna and his notes state that his foot had been “really good”, he had done “more running” and that he would try umpiring. Dr Chia also recorded the following in his notes:
Problem #2:- Spoke with psychologist yesterday. Another 6 sessions approved. AustPost Dean White frustrating him. Unable to do as much vacuuming, gardening. Issues at home. Occasional insomnia.
…
Problem #4:- letter FROM GP concerned regarding worsening depression. Depressed mood. Finds it hard to deliver as sometimes mind [wanders] when cycling. Weeks ago prior to being off delivery. Needs to be distracted. Suggested adding mirtazipine. Wife not coping with his disability. Arguments. Indigestion with Pristiq. Cheer score 4.
Actions: try mirtazipine 15mg side effects understood sedation increase weight.
On 13 April 2016, Dr Chia saw Mr Scicluna and his notes state that he was experiencing nausea from mirtazipine. The notes also record that he was able to umpire, his Achilles was fine, but he was sore elsewhere.
On 29 April 2016, Dr Chia saw Mr Scicluna and his notes state that Mr Scicluna’s Achilles was better; he was doing stretches and umpiring. The notes record that things at home were okay but there were occasional issues at his work and he was “frustrated at work”. The notes record that when Mr Scicluna is delivering, he is thinking about work and not concentrating properly.
On 18 May 2016, Dr Chia saw Mr Scicluna and his notes state that Mr Scicluna was not coping with his depression; was having suicidal thoughts and he needed to be active. The notes record that Mr Scicluna was finding the bundling activities (“throwing off”) hard because it was aggravating his left wrist.
On 23 May 2016, Dr Chia saw Mr Scicluna and provided a script for Pristiq (two 100 mg tablets daily). On 23 June 2016, Dr Chia saw Mr Scicluna and recorded in his notes as follows:
Tearful +++ marriage ending.
She is fed up as he not contributing around house. Vacuuming.
Not as motivated to do stuff. She not responding with her.
15 hours overtime.
Suicidal thought not ideation.
On 9 June 2016, Dr Armstrong saw Mr Scicluna in relation to “musculoskeletal pain”. Dr Armstrong arranged for some tests to be carried out and added “soft tissue rheumatism” as a health issue on Mr Scicluna’s medical record. Dr Armstrong saw him again on 5 July 2016, prescribed an anti-inflammatory medication and noted as follows in his clinical notes:
Soft tissue rheumatism – ongoing medial epicondylitis – getting him down – no bloods as yet – advised!
On 7 July 2016, Dr Chia referred Mr Scicluna to Dr Robert Kruk, psychiatrist for opinion and management for his “depression and anger”. In his letter of referral, he explained that an assault at Mr Scicluna’s work had precipitated his anger issues and that since then, he had suffered many physical injuries due to accidents on the motorcycle while he was delivering and also other upper limb injuries due to the repetitive nature of his work. This letter also explains to Dr Kruk as follows (emphasis added):
He has had flare ups with fellow workers and his anger at times is a big problem at work. He has also become depressed due to the injuries affecting his social life (umpiring) and family life (not supportive at home). His marriage has been strained due to this.
I first started him on Lexapro 8/2009 and ceased 4/2010 and his mood improved. Relapse 9/2013 and since then he has been on Pristiq now 200mg. I tried some mitazipine 4/2015 but it was too sedating.
I am wondering about a change in mediation and some anger management. He sees a psychologist Angela Scanlon and attends a pain management group there. He has seen her for years but needs more for his anger.
On the same day (i.e. 7 July 2016), Mr Scicluna also visited Dr Armstrong. His clinical notes on this day refer to a diagnostic imaging request for an ultrasound of Mr Scicluna’s left Achilles and steroid injection if appropriate.
On 12 July 2016 (Tuesday), Dr Armstrong saw Mr Scicluna. They discussed his elbow. The clinical notes also indicate that Mr Scicluna had received a steroid injection that day and was indicating that he wanted to run on the Saturday. Dr Armstrong advised against it until Mr Scicluna was pain free.
On 26 July 2016, Dr Armstrong saw Mr Scicluna and they discussed issues with work and ongoing issues with “medial teninosis left side”.
On 4 March 2017, Dr Armstrong saw Mr Scicluna and noted in his clinical records as follows:
Under stress at work at [present] and ongoing left knee pain limiting exercise – seeing [physio] for this and has strapping on knee.
Advised non weight bearing exercise eg swimming, exercise bike etc
Ms Angela Scanlon, treating psychologist
Dr Chia referred Mr Scicluna to Ms Angela Scanlon, psychologist, for counselling on 18 September 2013. Ms Scanlon’s clinical notes were produced to the Tribunal.[17] Ms Scanlon’s notes for the first counselling session with Mr Scicluna on 23 September 2013 states as follows:
[17] Refer Exhibit “A2” and Exhibit “A3”.
Workplace injury @ Aust Post – 2009?
- Depression as a result of injury
2005 – Hand
2009 – Assaulted @ work
Still affects PeterJust started on Pristiq
Injury – Was a Postie
Surgery May ’13 on R ankle– R wrist, thumb & fingers – 3 operations
Argues [with] wife/kids/co-workers
*Feels unsafe @ work
On & off light duties
*Assault @ work. Sig event – 2009
Feels unsafe – on guard
“treat injured workers bad’
Comments/bullying
Current 5 days x 6 hrs – pressure to [increase] by AP.
Main Problem – Depn
*Divorce – Went to Mensline GP – helped enormously
Shop Stewards work – Compassion fatigueMr Scicluna completed a PDSQ test/questionnaire on 27 September 2013. Mr Scicluna scored significantly above the “cut-off” score (indicating that follow-up was recommended), for “major depressive disorder suicidality” and “post-traumatic stress disorder” (PTSD). It appeared from Ms Scanlon’s notes that she discussed the results of this test with Mr Scicluna on 11 October 2013 and she had noted down:
PTSD - 2001
- 2009
In this session on 11 October 2013, Ms Scanlon made a note about concerns with Mr Scicluna’s daughter being behind at school and there was a reference to a mediation with his ex-wife regarding parenting. In a session on 21 November 2013, Ms Scanlon’s notes record that for Mr Scicluna, work had been okay and that he had been “trying to keep out of trouble”. The notes indicate the mediation with his ex-wife did not go well and Mr Scicluna walked out of it.
On 13 January 2014, Ms Scanlon’s notes of a session with Mr Scicluna states that he felt refreshed after a good holiday, and that he felt good despite his family issues.
Mr Scicluna attended a further session with Ms Scanlon on 31 January 2014. Her notes record that Mr Scicluna had reported that work had been okay, the pain was settling, he was coping okay, and that he might get back to the “bike/deliveries”. The notes also indicate that Mr Scicluna’s current wife had been diagnosed with osteoarthritis and communication between them had been a concern with a reference to them going “for a week without talking”. Mrs Scicluna attended a session with Ms Scanlon on 28 February 2014.
Mr Scicluna attended a session with Ms Scanlon on 13 March 2014. The notes indicate that “issues with ex” were discussed, involving their daughter, and that Mr Scicluna was “feeling exhausted”, “highly stressed” and “reacting to others with anger”.
In a session on 3 April 2014, Ms Scanlon notes that Mr Scicluna was feeling “stressed & tired”. From the notes, it appears that issues with his ex-partner and their daughter were discussed, about which “Pete feels helpless about this”. The notes record that he was back on his bike at work but fell off and hurt himself which left him feeling “embarrassed” and “angry”. In the following session on 12 April 2014, Ms Scanlon recorded in her clinical notes that Mr Scicluna was struggling to cope with family matters; that he and his current wife were at each other about the housework and his wife was in a lot of pain. The note indicates that Mr Scicluna was withdrawing to cope with the conflict. It also states that Mr Scicluna’s daughter, who at that time was living with his ex-wife, was going to start living with Mr Scicluna and his current wife.
In a session on 23 June 2014, Ms Scanlon recorded in her notes that Mr Scicluna had complained about increased pain in his right arm into the elbow; that the pain in the right ankle was no better; and that that he had pain when walking. The note states he started on Pristiq as suggested by the general practitioner but that it did not feel any better. The note indicates that anger continued to be a problem; and they discussed the need for family therapy.
In a session on 13 November 2014, Ms Scanlon’s notes refer to the ankle operation with eight weeks of recovery (due to return to work in three weeks) and that Mr Scicluna was “sick of it”. The notes record that his mood was “angry & very low” and that he was not sure if the Pristiq (150mg) was working. There was a reference to his father passing away, the grief and that he was “keeping it all in”. There was a reference to “family” and a note of Ms Scanlon’s encouragement to Mr Scicluna to speak to his current wife about further counselling sessions.
In a session on 27 November 2014, Ms Scanlon’s notes record that there had been no change; Mr Scicluna had tried to speak to his current wife; but that it “did not happen”. The notes also records the following:
-Pete has to put full weight on his left leg but he says is too painful.
- Low motivation
- Suicide ideation
- Feels useless
[Homework: - focus on self & settle self down & to [reduce] pain]
He got the connection b/w pain & emotions -> needs to relax and [reduce] pain – use visualisation…
Both Mr and Mrs Scicluna saw Ms Scanlon on 11 December 2014. Ms Scanlon’s notes indicate that they discussed the communication between them; and that it was hard to resolve matters. Ms Scanlon noted, “very different views of the family”.
In a session with Ms Scanlon on 23 December 2014, her notes indicate that Mr Scicluna had reported that things were much better at home. They discussed strategies to cope with the stress at work.
In sessions with Ms Scanlon on 14 and 22 January 2015, her notes indicate that Mr Scicluna had been coping well at work and was employing strategies, such as listening to music, ignoring distractions to reduce his stress.
At Dr Chia’s request, Ms Scanlon carried out a psychological assessment of Mr Scicluna on 10 August 2015. Mr Scicluna completed a DASS (Depression, Anxiety and Stress Scale) assessment and a PAS (Personality Assessment Screener):
(a)the results of the DASS revealed that he was suffering severe stress, severe anxiety and severe depression. Ms Scanlon reports that Mr Scicluna had presented to him with chronic pain; depression; suicide ideation; anxiety; stress; anger; frustration; hypervigilance; hyperarousal and poor impulse control. Ms Scanlon listed as the contributing factors the workplace injuries on his right foot and hand and also the fact that he was “physically assaulted in the workplace in 2009”; and
(b)the results of the PAS indicated that it was more likely than not that Mr Scicluna was “experiencing some type of clinically significant problem”.
In a Psychological/counselling Treatment Management Plan prepared by Ms Scanlon on 29 August 2015, she described Mr Scicluna’s practical problems to be poor motivation; angry outbursts at work and at home; and chronic pain (especially, that he always feels his pain and this affects his mood).
In a session on 12 November 2015, Ms Scanlon’s notes record that Mr Scicluna had been “up and down” and was not reacting at work as much, which was helping. In the following session on 24 November 2015, Ms Scanlon recorded that Mr Scicluna had stopped taking his medication for about three weeks and his mood had lowered; he had headaches and he was more reactive at work.
In a session on 14 February 2016, Ms Scanlon’s notes record that Ms Scicluna had increased pain; reduced sleep and that his mood was “up and down”.
In a session with Ms Scanlon on 17 March 2016, her notes record that Mr Scicluna had a “tough week” with the death of a work colleague and issues with APC involving the refusal of a claim for his right arm. The note records that things had been okay at work and issues with his current wife had continued to improve with their argument reducing in intensity.
In a session with Ms Scanlon on 21 April 2016, her notes record that there had been stress at work with Mr Scicluna’s manager; a pending court case in July; and they discussed ways to cope. In a session on 5 May 2016, Ms Scanlon’s notes record that Mr Scicluna reported that he had received warnings about his behaviour on two occasions in April 2016. On 19 May 2016, Ms Scanlon had a session with Mr Scicluna to go over strategies to cope with depression and anger.
Ms Scanlon prepared a Psychology Treatment Notification Plan on 24 June 2016 in which she states that Mr Scicluna has “pain & stress with delivery of post. Spends too much time thinking/ruminating”; he “feels unsafe out delivering” and that it would dangerous for him to be on his own delivering post and that he would be better suited to working in the office where he can interact with others. Ms Scanlon records her clinical diagnoses as “PTSD” and “Major Depressive Disorder”.
In a letter dated 12 April 2016 providing a treatment update to Dr Chia, Ms Scanlon states that Mr Scicluna had continued to struggle with depression, suicide ideation and chronic pain. Ms Scanlon states that Mr Scicluna had reported to her that he was less reactive at home and at work; and was more able to respond rather than to react. Ms Scanlon states the Mr Scicluna faced two major stressors being an “unhappy marriage where he feels trapped” and an “unsupportive workplace where he feels undervalued and unheard”. Ms Scanlon said that he was slowly coming to the realisation that he needed to accept the choices he was making being to stay with his current partner and employer. Ms Scanlon observed of Mr Scicluna that he struggled to accept responsibility for difficult situations and this created helplessness, which contributed to his low mood.
Dr Robert Kruk, treating psychiatrist
Following a referral from Dr Chia, Dr Robert Kruk, treating psychiatrist, saw Mr Scicluna and prepared a report dated 15 September 2016, stating as follows:[18]
Peter reported a history of depression since being assaulted by a colleague at work in 2009. The man punched him a few times for no reason.
Peter developed depressed mood, negative thoughts and broken sleep and for a few months was treated with Lexapro which led to significant improvement in his mood. He developed another bout of depression in 2013 and has been treated since with Pristiq 200mg. In April this year Peter also tried Avanza but found it too sedating.
He sees poor frustration tolerance and frequent outbursts of anger as the biggest problem. He has not history of self-harm or psychiatric hospital admissions.
Peter has no significant medial history.
…
Peter presented as a moderately depressed man without suicidal thoughts. He has depression which has recently been complicated by anger.
I added Tegretol 400mg to Pristiq 200mg. A second option is Seroquel 12.5-25mg bd, hopefully he does not find it too sedating.
[18] Refer Exhibit “R5”.
Dr Michael Epstein, consultant psychiatrist
Dr Epstein has been a psychiatrist since 1975 and a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) since 1976 with a particular interest in stress-related illnesses. Dr Epstein examined Mr Scicluna, at the request of his lawyers, on 20 August 2015 and 28 July 2017; and he prepared two reports dated 28 August 2015 and 1 August 2017.[19]
[19] Refer Exhibits “A1” and “A6”.
2015 examination by Dr Epstein
In his 2015 report, Dr Epstein observed Mr Scicluna’s affect during the examination to be restricted and that he appeared mildly depressed and anxious during the course of the interview. Dr Epstein states that Mr Scicluna’s content of thinking was about the way he had been treated by his employer, his ongoing symptoms and the effect this had on his life. Dr Epstein states that Mr Scicluna was experiencing pain but seemed to be able to cope with it and that he had suicidal thoughts but no intent. Dr Epstein considered that Mr Scicluna’s attention, concentration, working memory and speed of information proceeding appeared to be within normal limits and that he had some insight, but his judgement appeared to be disturbed. Dr Epstein states that there appeared to be some changes in Mr Scicluna’s behaviour as a result of his work situation.
Dr Epstein formed the following opinion of Mr Scicluna as a result of this examination:
Peter Scicluna has been an employee of Australia Post since 1999.
In that context he has had a number of physical injuries leading to problems with his left knee and his right hand requiring surgical intervention. He also claims that over the years he has been subjected to bullying, he was involved in an altercation in 2008 that he thought led to him being treated unfairly by his employer and this was exacerbated when the assailant was given apparent preferential treatment.
He had psychological counselling at the time of that altercation and subsequently in September 2013 and has been seeing his psychologist since then until recently.
He has been treated with antidepressant medication and over time the dose has been gradually increased.
The impression gained is that he now has a chronic Adjustment Disorder with mixed anxiety and depressed mood arising both from ongoing pain, discomfort and disability leading to significant limitations on his physical activities but also with regard to his perception that he has been poorly treated by his employer and has been harassed by work colleagues.
He has been able to continue working on modified duties on a full-time basis and is likely to be able to continue to do so indefinitely.
…
…His condition has been contributed to by his employment. This condition has continued and he does reasonably require medical treatment including medication and psychological counselling that should resume every two weeks and continue for at least the next six months.
His work incapacity appears to relate to his physical limitations rather than to his mental state. His prognosis is only moderate with regard to his mental state.
…
He has a psychiatric impairment of 10%.
…
He reacts to stressors of daily living, especially at work, with some distress. He also has some minor distortions of thinking particularly with regard to the way he believes he is viewed by management and by some work colleagues. The percentage is likely to continue indefinitely.
2017 examination by Dr Epstein
In Dr Epstein’s 2017 report, he states that Mr Scicluna’s described his symptoms as having remained much the same of the previous two years or so and that he had continued doing the same work eight to nine hours per day, five days per week in the parcel area, and doing customer service jobs as required.
Mr Scicluna reported to Dr Epstein in this examination that he had four or five hours of broken sleep a night, disturbed by worry and pain. He reported that there was no pain in his right ankle and he could run, but had not done so since he injured his knee at work in October 2016. The pain in the right wrist was reported to be constant and at times he experienced pins and needles and numbness. He was still driving to and from work and did a “little housework and only when reminded”. He told Dr Epstein he enjoyed watching cricket and football on TV and that he looked forward to resuming football umpiring. He told Dr Epstein that he was repeatedly abused by spectators as an umpire. He said he was able to cope with being abused as a football umpire because he expected it there. However, he was not able to cope with it at work because it was unexpected in the workplace.
In his 2017 report, Dr Epstein states:
He said that if he is not busy he broods about all that has happened, especially about the assault in 2009 (actually in 2008) and an incident in [July] 2016 when the same man pushed his daughter and himself in a shopping centre. He said thoughts of suicide come into his mind at least every two weeks. He rarely feels happy and is usually flat. He feels restless, frustrated, irritable, angry and exhausted. He had problems with memory and concentration and has little interest in his appearance.
During the 2017 examination, Dr Epstein described Mr Scicluna’s content of thinking was about the way he had been treated by APC, his ongoing symptoms and the effect this had on his life and the life of his family. He was frustrated by the process of getting approval for treatment of his conditions. He was experiencing pain and having difficulty coping with the chronic pain and were there vague suicidal thoughts, but no intent. He stated that Mr Scicluna appeared more limited with his attention, concentration, working memory and speed of information processing. He highlighted that his responses were in contrast to some of the comments in his witness statement and that he was more optimistic than as reflected in his witness statement. Dr Epstein considered that there were some changes in behaviour as a result of his work situation and that he appeared to have become much more isolated and irritable.
In Dr Epstein’s 2017 report, he notes that despite Mr Scicluna’s ongoing physical and psychological problems, he became a football umpire commencing in April/May 2016 upon the advice of his treating psychologist. Dr Epstein states as follows in his report:
Assessing him has been difficult. On the one hand the statements of his wife and himself apparently made in June 2017 reflect a significant level of dysfunction, certainly at home leading to the breakdown of the relationship with his stepdaughter, strain with his wife and other children to such an extent that his wife had let him briefly on two occasions, the most recent in early 2017.
However he is working full-time, he has only a few friends at work and ignores others who he believes have behaved negatively towards him. He has chosen to take on the job to being a football umpire having had significant experience as an umpire in the past. In that role he has been subjected to frequent abuse and there has been at least one physical confrontation with a spectator. It also appears that on one occasion he had to be escorted from the field because of the animosity of spectators towards him. One would have expected that in the context of his work-related mental health issues that he would have been unable to cope with this but he seems to have managed well. He is not umpiring at present because of the work injury in October 2016 leading to problems with his left knee and his left ankle but is keen to return to umpiring and training as soon as he can.
The factors mentioned above suggest that his level of dysfunction is much less than he would indicate.
Dr Epstein stated in his 2017 report that he continued to hold the view that Mr Scicluna had a “mild chronic Adjustment Disorder with mixed anxiety and depressed mood” and that this condition was contributed to by factors relating to his employment. Dr Epstein said that in his opinion, Mr Scicluna reasonably required medication and ongoing psychological counselling and that it should continue for at least the next 12 months. He maintained his view that Mr Scicluna had a psychiatric impairment of 10 per cent and that it is likely to continue indefinitely, in that:
According to the wife’s statement he is unable to perform activities of daily living without supervision or assistance but he is working full-time and has been a football umpire so this suggests that this incapacity is only limited to his home environment. He does appear to react to stressors of daily living both at work and at home with distress and anger. He also has some minor distortions of thinking, particularly with regard to the way he believes he is viewed by management and by some work colleagues…
Dr Epstein’s evidence at the hearing
Dr Epstein was asked whether he was comfortable with his assessment that Mr Scicluna had a 10 per cent psychiatric impairment under the approved Guide. He answered:
Yes. It seemed that in a sense the description he gave me of his activities may well have been seen to reducing that level of impairment. However, the comments made by him in his statement and to his wife may well have led to increasing it, that is was not good, and it was fair to stick with the middle ground and to continue with the 10 per cent.
At first, Dr Epstein said he did not consider the symptoms that Mr Scicluna described to him were consistent with a diagnosis of PTSD. However, when asked to accept the symptoms that Mr Scicluna had described to Dr White in the 2017 examination, Dr Epstein said Mr Scicluna did have symptoms of PTSD but they were “relatively minor though”. He agreed that those symptoms were relevant to his chronic adjustment disorder. The Tribunal notes the subsequent exchange between Dr Epstein and APC’s counsel:
APC’s counsel: Again, if you accept the history that Dr White took, would it be fair to say that the contribution therefore being made by the 2016 assault to his adjustment disorder is substantial? And I’m referring in particular to the flashbacks and the difficulty with sleep, feeling that he might be jumped on if he goes out?
Dr Epstein: Well I mean, I’m really – and that’s what Dr White says, and I don’t disagree with that necessarily, but all I can say is when I saw him, the symptoms he described to me were not consistent with a post-traumatic stress disorder.
APC’s counsel: Again, I just want to stay with Dr White’s history of that assault, Doctor, for the moment. If you accepted those symptoms to be still present, they of themselves would produce reactions to stressors of daily living with minor loss of personal or social efficiency, wouldn’t they?
Dr Epstein: Yes, they could.
APC’s counsel: And also would fit the criteria of lack of conscious directed behaviour without harm to community or self?
Dr Epstein: Yes.
APC’s counsel: And lead to minor distortions of thinking?
Dr Epstein: Yes.
In re-examination, Dr Epstein gave evidence that even if that was the case, the matters raised by Mr Scicluna in terms of events and incidents concerning his physical injuries, nonetheless caused him to maintain his opinion that he had a 10 per cent impairment relative to those events.
Dr Gregory White, consultant psychiatrist
At the request of APC’s lawyers, Dr Gregory White, consultant psychiatrist, examined Mr Scicluna on 25 October 2013, 7 October 2015 and 16 August 2017, and prepared reports dated 25 October 2013, 9 October 2015 and 24 August 2017 respectively.[20] Dr White also gave evidence at the hearing. Dr White is a Fellow of the RANZC and states that he has over 25 years of psychiatric experience in Australia and overseas.
[20] Refer T-Documents T64/189-202 (2013 report); Exhibit “R3” (2015 report) and Exhibit “R4” (2017 report).
2013 examination by Dr White
Following Dr White’s examination of Mr Scicluna in October 2013, he formed the following opinion, as expressed in his report:
…Mr Scicluna had developed an adjustment disorder with depressed mood, characterised by low mood and other biological, psychological, and social symptoms of depression, which reportedly precipitated by an ankle operation, which, in conjunction with chronic pain resulting from a hand injury, resulted in a significant disability.
…Mr Scicluna’s psychiatric condition, on the balance of probabilities, appears to be significantly related to the consequences of an ankle injury, and to a lesser extent to a hand injury, both of which Mr Scicluna claims to have been work related.
2015 examination by Dr White
In the examination in 2015, Dr White reports that Mr Scicluna had told him that his mental state had “got worse after he saw him” and that he had two operations on his ankle in 2013. Mr Scicluna told him the first operation did not work and in his rehabilitation, he kept breaking down and having more injuries of the ankle. In that examination, Dr White reports that upon further questioning, Mr Scicluna told him that since his last assessment his mood had worsened, “because of the operations…and the breaking down…and issues at work…There’s been another couple of incidents… In February this year, I was accused of making racial remarks, which wasn’t true, and I only received a letter of the outcome recently… They said it wasn’t substantiated, but on the other hand they didn’t say that I didn’t do it… It was frustrating that I had to wait so long, and they didn’t investigate properly, [and] interview all the witnesses”. Dr White reported that Mr Scicluna also referred to a second incident that took place in July 2015 when, “I complained that a fellow worker ‘chested’ me in the change room…they said they couldn’t prove it…but I’m getting over it”.
Mr Scicluna told Dr White, in the 2015 examination, that his previous low mood; “I can’t be bothered” feeling; and ruminating were “slowly improving”. He said his energy levels had been “mediocre…worse after I saw you…” He told Dr White he was still experiencing feelings of worthlessness, “four or five times a week” and ongoing intermittent suicidal ideation, but without strong intent or planning. He also told him that, “It’s hard to let go of things that have happened at work, but I believe that I’m working through it”.
In terms of Mr Scicluna’s work duties, he told Dr White during the 2015 examination that he had returned to normal hours two weeks earlier, and that he was building up to doing three hours of delivering mail on the tricycle. He said he was enjoying delivering mail on the tricycle and that “I think it’s going to be part of my way of getting better”. He had told Dr White at this time about his family circumstances and that his family was well. Mr Scicluna told Dr White that he had been more involved with his children than he had been. There was a reference to the children taking up a lot of time and that they went to the beach and the park. He reported to Dr White at that time that he was helping more around the home; his wife was pleased; and they were fighting less. In relation to his physical health, Mr Scicluna reported to Dr White at this time that his right hand was “the biggest problem”, having had three operations. He told Dr White he only had half strength in the hand and that it ached every day “24/7”. He said he had been restricted from doing planned renovations at the home. He said his marriage had suffered on account of it and his current wife was frustrated that he could not do things. He said he had not been interested in sex.
During the 2015 examination, Dr White observed Mr Scicluna looked and sounded somewhat tense and depressed, but not agitated. He diagnosed Mr Scicluna as suffering from a chronic “adjustment disorder with depressed mood”. Dr White’s prognosis was positive and he considered that there was a significant likelihood that significant further improvement in Mr Scicluna’s psychological condition would occur. He said that he may continue to suffer from low grade intermittent psychiatric symptoms. He said he considered that work-related factors were the main cause of Mr Scicluna’s symptoms. Dr White stated that amount of counselling Mr Scicluna had received was greater than “in most cases of adjustment disorder” and that his situation “differed from many” in that he had suffered from multiple injuries, multiple losses and recent new losses. Dr White opined that he did not expect Mr Scicluna’s future work capacity to be adversely affected by a psychiatric disorder and that he did not appear to be suffering from a permanent psychological or psychiatric impairment, particularly given that his symptoms had not stabilised and that he was making improvements.
2017 examination by Dr White
Dr White’s opinion following the 2017 examination of Mr Scicluna altered significantly. Dr White concluded upon re-examination of Mr Scicluna that he had a permanent impairment arising from two psychiatric disorders and Dr White assessed the degree of that impairment to be 25 per cent “whole person impairment”.
At the 2017 examination, Dr White’s report states that Mr Scicluna had reported that his condition had worsened and that there had been a few incidents since he had seen him last in 2015. Mr Scicluna told Dr White about the incident in September 2016 when he received a warning for an altercation with another employee who accused him of rorting the system, where they chested each other and he told the employee to “stop fucking saying that”. He also told Dr White about a further incident in April 2016,[21] which Mr Scicluna described as follows:
The guy who assaulted me in 2009, approached me at a shopping centre…I had my daughter and three of her friends with me… he pushed them out of the way to to get to me, and stood right up and spat in my face… he grabbed me by the scruff… I fought back and we rolled on the ground and security came…the area manager at work and human resources said that they heard about it…three months later he goes to the police to get me charged…they dropped the case…it wasn’t nice… it was in front of the children…I was embarrassed and scared for my children…I still think about it a fair bit every day… I’m looking around when I’m down the street”
[21] This incident took place on 15 July 2016 according to the police records.
Dr White said that Mr Scicluna told him upon questioning that he had flashbacks about this incident about three or four times a week and became emotionally distressed when reminded of it. He also told Dr White he had difficulty with sleep, saying he had flashes about it and also about the assault that took place in 2009.
In his 2017 report, Dr White expressed his opinion that Mr Scicluna was suffering from “a chronic adjustment disorder with depressed mood, reportedly precipitated by an ankle operation which, in conjunction with chronic pain resulting from a hand injury, had resulted in a significant disability”. Dr White also said Mr Scicluna was suffering from “PTSD” characterised by re-experiencing symptoms related to the 2016 and 2009 assaults. Dr White also states:
He had reported that the consequences of his injuries had caused difficulties at home and in the workplace, thus initiating a vicious cycle which had aggravated his depressive symptoms.
In turn, the depressive symptoms appeared to have reignited some unresolved resentment about events in the previous workplace.
At this latest assessment, Mr Scicluna reports that his depressive symptoms have worsened, in the context of further events related to his workplace, specifically in terms of his relationship with work colleagues and his employer, as well as with regard to ongoing chronic pain and physical symptoms related to previous and more recent workplace injuries.
Dr White stated his opinion that the prognosis was poor given the presence of more than one psychiatric disorder, comorbidity with chronic pain and physical disability and a number of longstanding chronic stressors. He states that the conditions could now be regarded as permanent given their duration, complexity and severity. In relation to the contributing factors, Dr White stated as follows:
Given the multiplicity of factors and the intertwining of a multitude of physical and psychological symptoms over a significant period of time, it is not possible to apportion any further weighting to the factors other than to say that, for the most part, the factors appear to be primarily and secondarily related to workplace issues and injuries.
Further to providing the impairment rating of 25 per cent, as mentioned above, Dr White also provided a range of scores for the six relevant categories required to assess non-economic loss.[22]
[22] Refer page 13 of Dr White’s 2017 report.
Dr White’s evidence at the hearing
At the hearing on 4 September 2017, Dr White was asked whether the 2009 assault played a part in Mr Scicluna’s condition of adjustment disorder with depressed mood. Dr White responded, “Well, in that it became the subject of some of his ruminations, yes”.
When asked what had happened between his second assessment (in 2015) and his third assessment (in 2017), that caused him to change his diagnosis and prognosis, he stated:
Well, there’s been the assault, the second assault. There’s been additional physical injuries and there’s been increased chronicity of the longstanding psychiatric symptoms and disabilities.
Dr White gave evidence that the main precipitating factor to the PTSD condition appeared to have been the assault in 2009. He also said that if a person is suffering from an adjustment disorder, or some other psychiatric disorder, they are more likely to develop PTSD. He said he would not have expected Mr Scicluna to have developed the PTSD condition if the further assault in July 2016 had not occurred. Dr White gave evidence that the assaults were contributing to the chronic adjustment disorder. Dr White clarified his evidence that he considered that Mr Scicluna’s “physical injuries, and also other workplace issues surrounding the perceptions about the workplace – of the employer’s actions but also involvement of a work colleague, albeit that a second assault … took place outside the workplace” were contributing factors.
Dr White said he was not in a position to apportion contribution any further, other than to say he thought that there was a significant contribution by the July 2016 assault; and by that, he meant the contribution was “important or noticeable, more than just measurable, but nothing more than that”. He also said he thought the workplace altercation in September 2016 was one of the workplace issues he had referred to above. Dr White said that the PTSD was primarily, but not totally, attributable to the assaults. He said that the “presence of an adjustment disorder, physical disabilities, problems at home, 101 things, will influence the causation of PTSD, keeping in mind we don’t fully understand what causes PTSD”. Dr White gave evidence that, “…once we get into the world of causation, it’s just – it’s like a soup of factors and it’s impossible to apportion”.
Dr White gave oral evidence confirming that he did not expect Mr Scicluna’s situation to improve at all. Dr White agreed that Mr Scicluna’s permanent problems which included his symptoms that affected his relationships with people and severe pain that prevented him from doing the things at work he would prefer to do, continue to resolve in a level of dysfunction.
MR SCICLUNA’S EVIDENCE
Mr Scicluna lodged a witness statement signed by him on 11 August 2017 with the Tribunal (Mr Scicluna’s Statement)[23] and he also gave evidence at the hearing.
[23] Refer Exhibit “A4”.
In Mr Scicluna’s statement, he provided a detailed account of some activities that he used to be involved in, but no longer is, on account of his psychological state. He also gave evidence about the difficulties he has experienced in his daily interactions with others.
In Mr Scicluna’s Statement:
(a)at [29] he states:
3 -4 days a week would be bad. On bad days I feel like shit. I feel low, like I have run out of gas. I get bad memories coming to me and I get sad and frustrated. On good days I can do a little more, I don’t yell at much.
(b)at [15] he states:
I don’t sleep very well because of the bad thoughts and the pain, so I am really tired all the time. I have flashback dreams. My mind takes me back and I relive incidents including the injury to my hand and altercations at work.
(c)at [23] he states:
Because of the anxiety and the depression, I lose my temper easily and it’s because of that that I know I am on thin ice at work. I have had some fights at work. I just try to keep busy at work and out of trouble. I have had a couple of fallings out at work. The last one was in November 2016; I was reprimanded for losing my temper at a colleague. That evidence was already given.
At the hearing before the Tribunal on 25 May 2017, Mr Scicluna gave the following evidence:
(a)in the 2016 football season, he umpired about 20 matches but he had not umpired in 2017 because he injured his leg at work in October 2016. He said he was not attending matches as a spectator;
(b)he no longer played ten-pin bowling or golf and was not involved in any new activities;
(c)he was able to drive his car but he needed to turn up the music to maintain his concentration;
(d)his relationship with his wife was “great now” but that “it had its moments”. He said he sometimes did chores around the house. He said the level of arguments was “stable” and that he tried to stay away from conflict with his wife. He said their sexual relationship “probably needed a little work at the moment”;
(e)he said his sleeping patterns were “bad” and that he was probably sleeping about four hours per night due to memories and bad dreams;
(f)he said he was trying to play with the children more and this had not changed over the previous nine months. He said he was attending parent/teacher interviews. He said things with his daughter from his first marriage were “great”. He said he did not take his family away on the weekends or from time to time due a lack of motivation and also because of financial reasons. He said he occasionally went to gatherings with his extended family;
(g)he said he did not see any of the people he knew through football, work or his children’s school socially. He said he engaged with a few people at work, but only while he was at work;
(h)at his work, he was not delivering mail anymore and his general practitioner had told him he was unlikely to do so again. He said he had some altercations at work; the last one in November 2016 with a guy who told him he was defrauding the system. He said he was accused of assaulting him, but they only chested each other. He said it embarrassed him and that it happened in front of everyone. He said he was suspended for two weeks and counselled. He said he was not demoted. He said he ignores this person now;
(i)he said he was still ruminating all the time, as he was nine months ago. He said he continues to have suicidal thoughts. He said his memory and concentration had deteriorated and that he will go to the shops and then forget what he went there for, or at times he will forget about appointments. He said he is able to watch TV;
(j)he said that he has counselling sessions with Ms Scanlon but they were not helping him as much as they had nine months previously. He said he had been treated by her for a period of four years. He said he had seen Dr Kruk for a medication review; and
(k)he said he had has “good and bad days” and was struggling more than he had nine months previously. He said that he had taken some days off work (possibly more than five in total) due to his mental health condition, but he had taken it as sick leave. He said he did not tell APC, due to “all the crap that goes with it”.
At the resumed hearing on 4 September 2017, Mr Scicluna gave further evidence as follows:
(a)he said he was “up and down” with helping his wife at home. He said he was “going okay” with his relationship with his wife, but it “was not great”. He said they were not fighting anymore but they “still had their moments”;
(b)he has continued to receive counselling from Ms Scanlon once every two to three weeks and attends a group session once a month. He said the treatment was helping him and they were providing him with strategies to help him cope at work. He said he had been working in modified duties for about five years;
(c)when asked about an incident in 2007, he said he was blamed for a set of keys that went missing. He admitted that this incident upset him and that he was set up. He said he still felt strongly about it;
(d)when asked about an incident in 2008, he said he was assaulted at work by Mr McConville. He said they were previously “mates”. He said he made remarks to him and he came back three hours later and “belted him”. He said he had cuts and bruises to his face. He agreed that the incident had stayed with him and that he still felt strongly about it. He agreed that after this incident, he was diagnosed with depression, put on anti-depressants and received treatment for a couple of years. He said he felt constantly on alert (of being attacked by Mr McConville);
(e)when asked about an incident in January 2015, when he asked for some dividers and was told to “fuck off”, he said he was very upset by that incident;
(f)when asked about an incident in early 2015, when he was accused of making racial comments, he said the accusation was untrue and he was upset with the way APC handled the investigation and of being accused of something like that;
(g)when asked about an incident in August 2015 involving a disagreement with a co-worker when he was working in the hatch (where customers collect their parcels), he admitted that it was upsetting but he “just did other work”;
(h)when asked about an incident on 15 July 2016[24] at Fountain Gate Shopping Centre involving a further verbal and physical altercation with Mr McConville in the presence of Mr Scicluna’s daughter and her friends, he said that he still thought about it a fair bit every day. He said “not every day, but it still crossed his mind”. He said he still had flashbacks about it a few times a week. He admitted to getting emotionally distressed about it when he saw Dr White. He said “I don’t like talking about, but this guy [Dr White] keeps bringing it up”. He said that sometimes he got flashes of the original assault by Mr McConville that took place in 2009. He said that flashes of both assaults interfered with his sleep at times. He said he was always irritable. He said he tried to avoid thinking about the assaults because they upset him. He also said he avoiding going to the shops. He said he was scared and embarrassed by the [15 July 2016] incident because it happened in front of his daughter and her friends. He denied that he had not talked to Ms Scanlon about this incident, as reported by Dr White in his report;
(i)when asked about the incident in November 2016 involving an altercation with a colleague where he lost his temper, he said he felt resentful of the way APC had investigated the incidents;
(j)when asked whether there had been numerous occasions in the past where he had felt that he was being teased, baited or harassed at work, he said that it did not continue to upset him and that now, “I just get on with my work”;
(k)he confirmed that he had not make any compensation claims in relation to the incidents referred to above;
(l)he said that he cannot do deliveries anymore at work because he was still having bad thoughts about the 2009 assault and the injuries;
(m)when asked whether he was upset about a recent refusal by APC to give him overtime for half an hour before commencing his shift at 6am to cover for a co-worker who was on leave, he said it did not make sense to him but “he didn’t go mad about it”.
[24] This date was referred to at the hearing as 18 July 2016; however, the police records confirm that this incident took place on 15 July 2016.
MRS SCICLUNA’S EVIDENCE
The Tribunal notes the entry made in the Crime Scene Log by the investigating police officer on 22 September 2016, recording an interview with Mr Scicluna about the incident:
… We went to the food court. We were walking along and I saw Darren walking towards us. He
pushedknocked Ebony and her friends out of the way to get to me. He got in my face and growled at me. I tried to shove him away and said, “you’re a fucking idiot”. He grabbed me by the shirt and tried to jumper punch me. We scuffled. I punched him once with my left hand and hit his cheek. We fell to the ground and 2 guys came and split us up. He kept yelling out “You’re fucked” Security came. I spoke to them but Darren refused to speak to them. There was a previous incident between us in 2005. I didn’t want to get punched so I whacked him first.Did Darren receive any injuries?
I think I saw a little knick on his cheek. I was more shaken up than he was I think.
How many time did you hit Darren?
I punched him once. One left hook.
What is your reason for unlawful assault?
I was protecting myself and the kids. I was worried for my safety and their safety.
The Tribunal is satisfied that the incident took place as described by Mr Scicluna in the Crime Scene Log with one exception; being that Mr McConville hissed, not growled, in Mr Scicluna’s face at the beginning of the exchange between them. The Tribunal also finds that Mr McConville did not strike Mr Scicluna at any stage during this altercation, but he intended to do so. Mr McConville was not able to carry out that intention because Mr Scicluna hit Mr McConville before he had a chance to hit him and he was unable to strike Mr Scicluna while they were “tussling” on the ground, as they were intercepted by two members of the public who pulled them apart.
The Tribunal finds that this incident occurred because of the personal threat that Mr McConville posed to Mr Scicluna, when he “got into” and hissed in Mr Scicluna’s face. This threat was pronounced because it took place in the context of the history between them being the 2008 Assault which left Mr Scicluna cut and bruised. Specifically, Mr McConville had previously demonstrated by his actions that he was prepared to attack Mr Scicluna and to cause him physical harm, as he had done in 2008.
The Tribunal is satisfied that Mr McConville approached Mr Scicluna on 15 July 2016 in a highly aggressive and confrontational manner and, given the history of the assault in 2008, and that fact that Mr Scicluna had his 13 year-old daughter and her young friends in his care, understandably, he reacted in the way he did to protect himself and to protect those in his care. There was no time for Mr Scicluna to reflect upon what might have been the best action for him to take in response to actions by Mr McConville on that day. In the context of a pre-existing fear arising from the past assault, Mr Scicluna acted in self-defence and hit Mr McConville, before he was able to make a physical attack on Mr Scicluna or those in his care. For these reasons, the Tribunal is satisfied that the actions of Mr Scicluna on 15 July 2016 could not be characterised as leading to intentional self-inflicted injury (or wilful or serious misconduct for that matter, if the exception in s 14(3) of the Act applied). Accordingly, the exception in s 14(2) of the Act does not apply to exclude Mr Scicluna from being paid compensation under s 24 the Act in respect of his injury arising from the 2016 Shopping Centre Incident.
In order to determine whether the s 6(1)(a) deeming provision of the Act applies in this application, the Tribunal must consider whether the injury arising from the 2016 Shopping Centre Incident, being an aggravation of PTSD, was sustained as a result of an act of violence that would not have occurred but for Mr Scicluna’s employment or the performance by the employee of the duties or functions of his or her employment. The injury was certainly sustained by an act of violence, but it is less clear whether the second limb of this deeming provision applies.
The Tribunal considers that the act of violence occurred as a consequence of Mr McConville’s decision to make the aggressive, unprovoked gesture by “getting in” Mr Scicluna’s face and hissing at him on 15 July 2016. The Tribunal finds that Mr McConville made this aggressive gesture as a direct consequence of what happened between him and Mr Scicluna during the incident culminating in the 2008 Assault. On account of this connection, the Tribunal is required to examine the events that led to the 2008 Assault; and in particular, any connection between that earlier event and Mr Scicluna’s employment at APC or the performance of his duties.
Mr Scicluna gave evidence at the hearing that he had been “mates with” Mr McConville “for a while”. Dr Epstein’s report referred to the clinical notes stating this Mr Scicluna and Mr McConville had been friends for about 10 years and they had also played football together. This report also refers to Mr McConville being a team leader and while Mr Scicluna was talking to Mr McConville in the tea room at APC, he made a remark implying that Mr McConville was a “psychopath”. Mr Scicluna admitted at the hearing that he had made this remark to Mr McConville. He said Mr McConville went away; returned about three hours later and “belted” Mr Scicluna, resulting in bruises and cuts to Mr Scicluna’s face. The Tribunal finds that this assault was inflicted by an APC employee arising from a conversation that took place in the workplace (in an APC tea room) between two APC employees and while Mr Scicluna was at work. The Tribunal is satisfied that if Mr Scicluna and Mr McConville were not interacting with each other that day as work colleagues in the APC tea room, the assault would not have taken place. This being the case, and noting the causation test is much less onerous than if this injury was found to be a ‘disease’, which it was not, the Tribunal is satisfied that that the “aggravation of pre-existing PTSD” arose from an event that took place as a direct consequence of an earlier incident (the 2008 Assault) which arose from Mr Scicluna’s employment with APC.
The Tribunal is satisfied that the deeming provision under s 6(1)(a) applies in this application and that Mr Scicluna’s condition of aggravation of the PTSD arose out of, or during the course of, Mr Scicluna’s employment at APC and constitutes an “injury” under s 5A(1)(c) of the Act.
Permanent impairment
Mr Scicluna will have an entitlement to compensation under s 24 of the Act if each of the injuries referred to above, has resulted in permanent impairment. Section 4(1) defines:
(a)“permanent” to mean “likely to continue indefinitely”; and
(b)“impairment” to mean “the loss, the loss of use, or the damage or malfunction, or any part of the body or of any bodily system or function or part of such system or function”.
Section 24(2) of the Act requires Comcare to have regard to all relevant matters when determining whether the impairment is permanent, including the duration of the impairment; the likelihood of improvement in the employee’s condition; and whether the employee has undertaken all reasonable rehabilitative treatment for the impairment.
Adjustment disorder with depressed mood - yes
Mr Scicluna has suffered from the adjustment disorder with depressed mood for the last five years. The severity of Mr Scicluna’s symptoms in respect of this psychological injury has fluctuated over that time. At no point has this condition resolved completely. The medical evidence of Dr White and Dr Epstein in their 2017 reports was that Mr Scicluna’s condition was unlikely to improve. Mr Scicluna has received a number of years of psychological counselling and has taken different types of psychotropic medication. He continued to take medication to manage the symptoms of this injury. The Tribunal finds that Mr Scicluna has undertaken all reasonable rehabilitative treatment for this injury. In light of the above, the Tribunal finds that Mr Scicluna’s injury of “adjustment disorder with depressed mood” has resulted in a permanent impairment under s 24 of the Act.
Aggravation of PTSD - no
Mr Scicluna’s injury of “aggravation of pre-existing PTSD” occurred more recently following the 2016 Shopping Centre Incident on 15 July 2016. The duration of this condition has been approximately two years. Although Mr Scicluna has sought medical treatment for this condition and he continues to have counselling by his treating psychologist, the Tribunal is not satisfied that this condition has resulted in permanent impairment.
The Tribunal considers that it is not yet clear on the evidence that this condition is unlikely to improve into the future. The Tribunal considers that with continued treatment and the passage of more time, the effects of the recent aggravation of Mr Scicluna’s PTSD on his psychological state may lessen. Mrs Scicluna’s evidence was that she did not consider the 2016 Shopping Centre Incident to have had a big impact on Mr Scicluna.
The Tribunal is also mindful that Mr Scicluna’s symptoms of the pre-existing PTSD in 2008/2009 had previously dissipated to the point that he was able to cease treatment for it. The Tribunal considers it quite possible this may happen again. The Tribunal acknowledges, however, that Mr Scicluna’s recovery from the more recent 2016 Shopping Centre Incident is complicated; and it is made more difficult by the co-morbidity on account of his adjustment disorder with depressed mood, as pointed out by Dr White in his evidence (as set out in paragraphs [122] and [123] of these Reasons for Decision). However, the Tribunal considers it is too early at this stage to be certain about whether Mr Scicluna’s impairment from this injury will be indefinite.
In light of the above, the Tribunal finds that Mr Scicluna’s aggravation of PTSD has not, at the present time, resulted in permanent impairment under s 24 of the Act.
Degree of impairment
Chapter 5 of Part 1 of the approved Guide, which deals with “Psychiatric conditions”, is reproduced in Annexure A to these Reasons for Decision.
The glossary on page 14 of the approved Guide states as follows:
Activities of daily living are those activities that an employee needs to perform to function in a non-specific environment (that is, to live). Performance of Activities of Daily Living is measured by reference to primary biological and psychosocial function.
…APC contends that it is necessary to disentangle the continued effect of his physical injuries on Mr Scicluna’s psychological condition, from the effects of any of the other factors which are found to contribute to his injury. The Tribunal does not accept this contention. The Tribunal considers that once the Tribunal is satisfied that there is an “injury” as defined under the Act, and that it has resulted in permanent impairment, as in the case of Mr Scicluna’s condition of “adjustment disorder with depressed mood”, there is no need to disentangle the respective impacts of the different factors that may have contributed to this condition in assessing the degree of impairment for the purpose of calculating Mr Scicluna’s entitlement to lump sum compensation under s 24 of the Act.
Instead, the Tribunal considers that it must assess the degree of impairment arising from this injury in its entirety, in accordance with the approved Guide. However, in doing so, it will be important for the Tribunal to assess only the impairment that has been caused by this particular injury and must not take into account any present impairment that has been caused by his other injury at present, being the “aggravation of pre-existing PTSD” which the Tribunal has found has not resulted in permanent impairment. The Tribunal considers that the specific effects of each of those different types of injuries are different and capable of being differentiated when assessing levels of impairment caused by each of them.[41]
[41] The Tribunal notes the conclusion reached in the case of Robson.
In undertaking this exercise, the Tribunal notes that Dr Epstein assessed Mr Scicluna’s degree of permanent impairment in 2015 to be 10 per cent referrable to the “adjustment disorder with depressed mood”. This assessment was reached by Dr Epstein on the basis that Mr Scicluna is capable of performing activities of daily living without supervision or assistance, despite reacting to stressors of daily living (with minor loss of personal or social efficiency); and despite some minor distortions in thinking in relation to the way he believes he is viewed by management at APC and some work colleagues – see last page quoted from Dr Epstein’s report, (as set out in paragraph [98] of these Reasons for Decision and see also the last sentence in paragraph [102]). Following the 2017 examination of Mr Scicluna, Dr Epstein maintained his assessment at 10 per cent.
The Tribunal also notes the assessment of Dr White in 2017 that Mr Scicluna’s degree of psychiatric impairment was 25 per cent. However, Dr White’s assessment was based on the effects of both of the injuries referred to above. Dr White was not prepared to “apportion any weighting to the factors”. This being the case, the Tribunal was unable to gain an understanding from this expert as to the degree to which Mr Scicluna’s psychiatric impairment arose from the longstanding “adjustment disorder with depressed mood”, as distinct from the more recent “aggravation of pre-existing PTSD”. As mentioned above, the Tribunal considers that the effects of this subsequent injury should not be taken into account based on its finding that it cannot be satisfied, at the present time, that this second injury has resulted in “permanent impairment”.
Turning to Table 5.1 of the approved Guide, applicable to “psychiatric conditions”, each row sets out a description for the different levels of impairment, against a numerical figure expressed as “% WPI”. In summary, the matters determining which particular level of impairment applies will depend upon whether the person being assessed is capable of performing activities of daily living without supervision or assistance; whether they have a need for some supervision and direction in activities of daily living or a need for supervision and direction in activities of daily living; and whether a range of other factors are present relating to their level of disturbance in thinking, behaviour, and their reactions to stressors of daily living.
Taking into the account how the activities of daily living are specified in Figure 5-A, the Tribunal notes the following:
(a)on his own evidence, Mr Scicluna is capable of driving his car independently to work. He drives independently to his counselling sessions with Ms Scanlon. He drives to the local shops independently. He is also entrusted with the responsibility of driving his children in the car to and from school on occasions. It is noted that he said he turns on the radio when he drives his car, to stop his mind from wandering. Importantly, his requirement to do so does not prevent him from still engaging in this activity independently;
(b)Mr Scicluna does not require supervision or assistance with self-care activities such as bathing, toileting, grooming or eating;
(c)the Tribunal accepts that Mr Scicluna does not help out a great a deal with the housework in comparison to the load taken up by his wife. However, the Tribunal is satisfied that if Mrs Scicluna was not there or willing to take up that role, and he was forced or had no choice but to do so, it would be within his capabilities and he would do so. Mr Scicluna gave evidence that he watched television and that when his physical condition permitted him to do so; he was able to arrange to attend the gymnasium, go running, and for a significant period of time in 2016, engage in football umpiring at a relatively senior level.
The Tribunal accepts that Mr Scicluna suffers from a poor memory due to his condition (relative to a normal functioning memory) and at times needs to be reminded by Mrs Scicluna when to do things, including activities of daily living. He also requires regular prompting to do things due to the effects of his depression and his resulting lack of motivation. The Tribunal also accepts that Mr Scicluna needs to be urged by Mrs Scicluna to attend family gatherings with extended family; otherwise, he would not do so. This is relevant to the consideration of the “social and recreation” aspects of daily living.
In conclusion, the Tribunal is satisfied, after taking into account only Mr Scicluna’s impairments resulting from the injury of “adjustment disorder with depressed mood”, that he is capable of performing activities of daily living without supervision or assistance, and the following descriptors applicable to the 10 per cent level also apply to him:
(a)Mr Scicluna has “minor distortions in thinking”, based on the observations of Dr Epstein in his 2015 report; and
(b)Mr Scicluna’s reactions to stresses of daily living have resulted in a “minor loss of personal or social efficiency”. The impacts of the adjustment disorder have not caused him to stop working or otherwise, alter his daily living patterns at home or at work, in any measureable way. He still fulfils the role of a breadwinner and a parent for his family, as he always has. However, the Tribunal is satisfied that he is more reactive then he was in the past. This is supported by the clinical notes of Ms Scanlon, making references to Mr Scicluna’s struggle to control his anger, particularly in the workplace, but also in his home. The Tribunal accepts Mr Scicluna’s evidence, as corroborated by Mrs Scicluna, that he is a different person to who he used to be, before his injuries. He has become noticeably more irritable. He is less cooperative around the home and with other people. The impact on his interpersonal relationships with others in his family and at work has been distinctly negative, to the point where he manages this by consciously limiting his interactions with certain people. Mrs Scicluna gave evidence at the hearing that a member of her extended family had expressed a preference for him not to visit their home, as he was “a misery” to be around. This Tribunal considers that these matters amount to a minor loss by Mr Scicluna in his personal or social efficiency.
In light of those findings, the Tribunal is satisfied that the level of permanent impairment under Table 5.1 with respect to Mr Scicluna’s injury of “adjustment disorder with depressed mood” is 10 per cent.
Claim for non-economic loss under s 27 of the Act
Section 27(2) of the Act provides that the amount of compensation to be paid under this provision is to be assessed using a formula that factors into the calculation the percentage finally determined under s 24 to be the degree of permanent impairment and also the percentage determined under the approved Guide to be the degree of non-economic loss suffered by the employee. The degree of non-economic loss is to be determined in accordance with Division 2 of Part 1 of the approved Guide.[42] The worksheet on page 206 of the approved Guide sets out the various categories for which a score is to be given under each of the Tables B1 to B5 for pain; suffering; amenities of life (including mobility; social relationships and recreation and leisure activities); other loss and loss of expectation of life.[43]
[42] Refer page 200 of the approved Guide.
[43] Refer pages 201 to 205 inclusive of the approved Guide.
In this application, APS contends that it would not be appropriate for the Tribunal to determine the amount of compensation payable under s 27 of the Act due to “the state of the evidence” before it. APC contends that Mr Scicluna’s responses to the “NEL questionnaire” are “unsustainable” and/or “cannot be valid”.[44]
[44] Refer T-Documents PT121 and paragraph [35] of APC’s Closing Submissions.
The Tribunal notes that Dr White provided an examiner’s score for each of the different categories on page 13 of his 2017 report. The difficulty with the Tribunal relying upon this evidence is that it was based on the impact of both the adjustment disorder and PTSD. Unfortunately, evidence given in this aggregated fashion does not assist the Tribunal and it is not appropriate to accept it as a basis for deciding upon what scores should be applied under Tables B1 to B6 to Mr Scicluna in respect of his injury of “adjustment disorder with depressed mood”, for which he is entitled to be paid compensation under s 27.
The Tribunal agrees that there is a low level of alignment between Mr Scicluna’s responses as expressed in the “NEL questionnaire”, and the evidence he gave at the hearing of this application, as to his situation at the time of the hearing. However, it is open to the Tribunal to consider the evidence that was given (by Mr and Mrs Scicluna, in their statements and at the hearing, and also as reported by the treating medical practitioners) as to the activities and other matters referred to in the descriptors appearing in Tables B1 to B6 as they apply to Mr Scicluna. It is for the Tribunal to accept or reject that evidence, and then to use that evidence to assess what scores apply to him. For this reason, the Tribunal does not accept APC’s contention that it is inappropriate for it to make an assessment for the purposes of s 27 of the Act. It will do so taking into account only the impact of the injury that has resulted in permanent impairment, being “adjustment disorder with depressed mood”.
The Tribunal finds as follows:
(a)Under Table B1 for “pain”, the Tribunal considers that a score of zero applies as it does not consider that Mr Scicluna experienced pain (which the approved Guide on page 201 makes clear means “physical pain”), as a consequence of the injury of “adjustment disorder with depressed mood”;
(b)Under Table B2 for “suffering”, the Tribunal considers that a score of three applies in respect of Mr Scicluna. The evidence of Mr and Mrs Scicluna was that he consistently had “good and bad days”. Mr Scicluna said he would have bad days on three to four days in every week. Mrs Scicluna gave evidence he was unapproachable on his bad days and that she modified her behaviour toward Mr Scicluna on those days to avoid conflict, and so did their children. The Tribunal is satisfied that Mr Scicluna experienced episodes of mild levels of distress on a regular basis and was irritable a lot of the time. The Tribunal accepts that during those episodes Mr Scicluna was unable to do very much and would sit on his couch and watch television. One of the descriptors for a score of three under this table is that the treatment specified in the table was of benefit in controlling or relieving symptoms. This includes anti-depressants, counselling and therapists; all of which Mr Scicluna is receiving and has for some time. When Mr Scicluna went off the anti-depressant medication for a short period of time, his symptoms deteriorated and he needed to go back on it. This indicates to the Tribunal that Mr Scicluna benefits from receiving this treatment. The Tribunal does not consider that a score of four is appropriate as it is not satisfied that the descriptor of “rarely free of symptoms of mental distress” applies to him on the evidence given by Mr and Mrs Scicluna;
(c)Under Table B3.1 for “mobility”, the Tribunal is satisfied that a score of zero applies as Mr Scicluna’s psychological condition does not impact on his ability to mobilise. Any incapacity to do so arose from his physical injuries. Mr Scicluna is still able to drive independently and does so a daily basis to go to work. Before his most recent physical injury, he mobilised sufficiently to umpire football at a senior level;
(d)Under Table B3.2 for “social relationships”, the Tribunal considers that a score of three applies in respect of Mr Scicluna. The Tribunal accepts the evidence of Mr and Mrs Scicluna that Mr Scicluna has not maintained relationships with close friends outside of the home. He does have some friends at work but he does not socialise with them outside of work hours. The Tribunal accepts Mr Scicluna’s evidence that he has not formed friendships with the parents through the school that his children attend. The Tribunal accepts Mrs Scicluna’s evidence that an extended family member prefers not to have Mr Scicluna visit their home, indicating difficulties in that relationship. The Tribunal does not consider that a score of four under this table applies because it is satisfied that Mr Scicluna has some social contacts outside of the immediate family. He admitted to attending events with extended family when Mrs Scicluna urged him to go and he also visits his mother on a regular basis. He socialises with some of his work colleagues while he is at work.
(e)Under Table B3.3 for “recreation and leisure activities”, the Tribunal considers that a score of zero applies because if it were not for the physical disabilities, it is satisfied that Mr Scicluna would be engaged in his usual recreation and leisure activities. Mr Scicluna’s main recreation activity is umpiring football. Previously in 2016, when his physical condition did not stop him from doing so, Mr Scicluna returned to umpire a season of football. His psychological condition which existed at that time did not prevent him from doing so. It was only on account of the further physical injury, that Mr Scicluna ceased that activity;
(f)Under Table B4 for “other loss”, the Tribunal considers that a score of one applies because it is satisfied that Mr Scicluna is at a “moderate disadvantage” by having to modify his behaviour and by others (his immediate family) needing to modify their behaviour towards him. The Tribunal accepts Mr Scicluna’s evidence that he has increasingly isolated himself at work to avoid altercations with his co-workers. The Tribunal does not consider those disadvantages to be either “marked” or “severe” which would justify a higher score. Mr Scicluna has been able to maintain his employment. His evidence was that he gets along well with his supervisor. On occasions he has reported to his treating medical practitioners that things for him at his work have been okay, putting aside his feelings as to how he feels he has been treated by management. Mr Scicluna has requested to work additional hours;
(g)Under Table B5 for “loss of expectation of life”, the Tribunal is satisfied that a score of zero applies. The Tribunal does not consider that the injury of “adjustment disorder with depressed mood” reduces Mr Scicluna’s life expectancy. The Tribunal acknowledges that Mr Scicluna has at times thought about suicide, there is no evidence that this has progressed beyond a thought, for instance, there is no evidence that Mr Scicluna had planned how he might commit suicide. Mr Scicluna has a good level of awareness of his mental health condition and he has a long of history of seeking and receiving treatment for it when it is required by him. The Tribunal does not consider that Mr Scicluna’s occasional suicidal thoughts pose a threat to his life expectancy.
Accordingly, the Tribunal finds that the total of scores calculated in accordance with Table B6 of the approved Guide is 4.3, as follows;
(a)Table B1: 0 x 0.5 = 0;
(b)Table B2: 3 x 0.5 = 1.5;
(c)Table B3.1: 0 x 0.6 = 0;
(d)Table B3.2: 3 x 0.6 = 1.8;
(e)Table B3.3: 0 x 0.6 = 0;
(f)Table B4: 1 x 1.0 = 1;
(g)Table B5: 0 x 1.0 = 0.
Applying Step 2.2 on page 207 of the approved Guide, the percentage of non-economic loss suffered by Mr Scicluna in respect of the injury of “adjustment disorder with depressed mood”, is:
(4.3/15) x 100 = 28.67 per cent
Costs
This application has travelled an unusual and complex course since the lodgement of the application until the completion of the hearing. The hearing took place over four different hearing days during the course of 14 months and before two different Members of this Tribunal. In these circumstances, the Tribunal considers it appropriate to list this matter for a further hearing to determine the issues of costs as a separate matter. This will allow an opportunity for the Tribunal to hear from both parties in relation to the issues of costs, once they have been informed about the outcome of this decision (if they are unable to reach agreement in the interim). The Tribunal notes the detailed written submission already made in APC’s closing submissions in relation the issue of costs. The Tribunal notes that there was an absence of any detailed response to those submissions made on behalf of Mr Scicluna.
Accordingly, the Tribunal reserves the question of costs.
CONCLUSION
In conclusion, the Tribunal is satisfied that Mr Scicluna has suffered an “injury” as defined under the Act of “adjustment disorder with depressed mood” which has resulted in a “permanent impairment”. Accordingly, Mr Scicluna is entitled to be paid lump sum compensation for permanent impairment in respect of this injury under s 24 and additional compensation for non-economic loss in respect of this injury under s 27 of the Act. Compensation under those provisions is to be calculated on the bases that the degree of permanent impairment resulting from this injury is 10 per cent; and the degree of non-economic loss resulting from this injury is 28.67 per cent.
The Tribunal sets aside the decision under review and in substitution, decides that:
(a)Mr Scicluna has suffered a psychological injury of “adjustment disorder with depressed mood” taken to have occurred on 2 September 2013 resulting in a degree of permanent impairment under Table 5.1 of the approved Guide of 10 per cent, and APC is liable to pay compensation under s 24 of the Act in respect of that injury;
(b)APC is liable to pay additional compensation to Mr Scicluna in respect of the injury referred to in the above paragraph, to be calculated on the basis that the degree of non-economic loss derived in accordance with Division 2 of Part 1 of the approved Guide is 28.67 per cent; and
(c)Mr Scicluna has suffered a further psychological injury of “aggravation of post-traumatic stress disorder” on 15 July 2016 which has not, at this stage, resulted in permanent impairment and accordingly, APC is not liable to pay compensation under s 24 of the Act or additional compensation under s 27 of the Act to Mr Scicluna in respect of this injury.
The Tribunal reserves the question of whether it should make an order for costs under s 67 of the Act and lists this application for further telephone directions hearing at 4pm on 22 October 2018 to hear oral submissions from both parties on this issue.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for decision of Member K Parker
[sgd]………………………………………
Associate
Dated: 8 October 2018
Counsel for the Applicant: Mr John Wallace of Counsel
Solicitors for the Applicant: Maurice Blackburn
Counsel for the Respondent: Mr Joe Ferwerda of Counsel
Solicitors for the Respondent: Clarke Legal
Dates of the hearing: Before Senior Member D Cremean
18 & 20 July 2016
Before Member K Parker
25 May 2017 & 4 September 2017
Date final closing submissions received: 3 November 2017
ANNEXURE A
Extract from The Guide to the Assessment of the Degree of Impairment – Edition 2.1 effective 1 December 2011
5.0 INTRODUCTION
In conducting an assessment, the assessor must have regard to the principles of assessment (see pages 9–13) and the definitions contained in the glossary (see page 14).
For the purposes of Chapter 5, activities of daily living are those in Figure 5-A (see below). The examples provided below are not exhaustive and should not be seen as a substitute for assessor discretion when making decisions about impairment ratings.
Figure 5-A: Activities of daily living
Activity Examples Self care, personal hygiene Bathing, grooming, dressing, eating, eliminating. Communication Hearing, speaking, reading, writing, using keyboard. Physical activity Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising. Sensory function Tactile feeling. Hand functions Grasping, holding, pinching, percussive movements, sensory discrimination. Travel Driving or travelling as a passenger. Sexual function Participating in desired sexual activity. Sleep Having a restful sleep pattern. Social and recreational Participating in individual or group activities, sports activities, hobbies. 5.1 PSYCHIATRIC CONDITIONS
Table 5.1: Psychiatric conditions
See note [sic] to Table 5.1 on page 53.
% WPI
Description of level of impairment
0
Reactions to stresses of daily living without loss of personal or social efficiency
and
Capable of performing activities of daily living without supervision or assistance.5
Despite the presence of one of the following employee is capable of performing activities of daily living without supervision or assistance:
> reactions to stresses of daily living with minor loss of personal or social efficiency
> lack of conscience directed behaviour without harm to community or self
> minor distortions of thinking.10
Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
> reactions to stresses of daily living with minor loss of personal or social efficiency
> lack of conscience directed behaviour without harm to community or self
> minor distortions of thinking.15
Any one of the following accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification to daily living patterns
> marked disturbances in thinking
> definite disturbance in behaviour.20
Any two of the following accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification of daily living patterns
> marked disturbance in thinking
> definite disturbance in behaviour.25
All of the following accompanied by a need for some supervision and direction in activities of daily living:
> reactions to stresses of daily living which cause modification of daily living patterns
> marked disturbances in thinking
> definite disturbances in behaviour.30
Any one of the following accompanied by a need for supervision and direction in activities of daily living:
> hospital dischargees who require daily medication or regular therapy to avoid readmission
> loss of self-control and/or inability to learn from experience resulting in potential for considerable damage to self or community.40
More than one of the following accompanied by a need for supervision and direction in activities of daily living:
> hospital dischargees who require daily medication or regular therapy to avoid readmission
> loss of self-control and/or inability to learn from experience resulting in potential for considerable damage to self or community.50
One of the following:
> severe disturbances of thinking and/or behaviour entailing potential or actual harm to self and/or others
> need for supervision and direction in a confined environment.60
Both of the following:
> severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others
> need for supervision and direction in a confined environment.90
Very severe disturbance in all aspects of thinking and behaviour requiring constant supervision and care in a confined environment, and assistance with all activities of daily living
Notes to Table 5.1
- Table 5.1 includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
- Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee.
- Assistance means the provision of assistance to the employee in performing the activities of daily living by a suitable person, responsible in whole or in part for the care of the employee
- Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee
- Suitable person means a person capable of responsibly caring for the employee in an appropriate way
- Suitably qualified person means a person with the necessary qualifications, experience and skills to provide appropriate direction to the employee. Such persons include medical practitioners, nursing staff and clinical psychologists.”
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Damages
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Remedies
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Statutory Construction
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Judicial Review
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Procedural Fairness
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