Shulten and Comcare (Compensation)

[2023] AATA 3249

Shulten and Comcare (Compensation) [2023] AATA 3249 (10 October 2023)

Division:GENERAL DIVISION

File Number(s):      2021/8464

Re:Harald Werner Shulten

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member A Ward

Date of Decision:     10 October 2023

Place:Adelaide

The reviewable decision is affirmed.

................[Sgnd].........................

Member A Ward

CATCHWORDS

WORKERS COMPENSATION – Commonwealth employee – significant delay in alleged onset of injury (mid 1980s) and hearing - whether Comcare liable for applicant’s depression, generalised anxiety disorder and schizophrenia – issues with self-represented applicants – issues with applicants/witnesses with diagnosed psychiatric illnesses – application of s 42B of the Administrative Appeals Tribunal Act 1975 – where there is no reasonable prospects of success – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Carvalho and Comcare (Compensation) [2022] AAT 1081

Manuel and Comcare [2009] AATA 848

Oliver and Comcare (Compensation) [2018] AATA 1964

REASONS FOR DECISION

Member A Ward

10 October 2023

1. The applicant Mr Shulten has suffered from psychiatric symptoms for most of his life. These cause him difficulties with interactions with people or could compound stressful situations. He had treatment whilst so affected during his university studies prior to his Commonwealth employment. He obtained employment with the Commonwealth and noted symptoms of distress and intrusive thoughts which he related to his employment and interactions in the office environment.

2. Over the years, Mr Shulten has submitted three claims for compensation, effectively claiming psychiatric injuries related to his employment within Commonwealth agencies.  These employment issues arose in the mid - 1980s and the applicant has maintained a steady stream of correspondence with the respondent (in previous iterations as well) up to the hearing of this determination. However, the primary cause for this ongoing interaction of 40 years were the events in the mid-1980s. 

3. The respondent has denied liability for what has been summarised as “depression, generalised anxiety disorder and schizophrenia”. 

4. This determination was made on 22 April 2021.  The decision was reconsidered and upheld by Notice on 23 September 2021.

5. It was that decision that was the subject of this application to the Tribunal and the hearing that commenced on Monday, 4 September 2023.

   Hearing and Application

6. The applicant represented himself. Documentary evidence was tendered at the commencement of the proceedings in the usual way in a compensation case. He gave evidence at the commencement of the hearing. At the conclusion of his evidence in chief, the respondent made an application that the claim be dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”).

7. Section 42B(1) of the AAT Act provides the Tribunal with the power to dismiss an application for the review of a decision at any stage of the proceedings if the Tribunal is satisfied that the application:

   (a)   is frivolous, vexatious, misconceived or lacking in substance; or

   (b)has no reasonable prospect of success; or

   (c)is otherwise an abuse of the process of the Tribunal.

8. The applicant was able to provide his evidence in a coherent fashion, but did find the exercise taxing. He expressed anxiety as to his involvement in the actual hearing process at a directions hearing the week before the full hearing.

9. In particular, he found the legal arguments difficult to follow as distinct from the factual matters. In view of a desire not to tax him with what would be quite a legalised argument, the matter had been adjourned for further hearing to Friday, 15 September 2023 for the purposes of further clarifying evidence to be obtained from Dr James Hundertmark who had provided a medical assessment on 9 November 2021 for the respondent, and for written submissions to be filed by the respondent on the application under s 42B(1) of the AAT Act.

10. This was to give the applicant time to consider the respondent’s position and clarify the evidence for the Tribunal’s purposes. 

11. On Friday, 15 September 2023, the applicant advised the Tribunal and the respondent via email that he did not want to personally participate in the further proceedings. As a consequence, the Tribunal directed the matter to proceed on the papers in view of the applicant’s concern about his ability to participate in person.

12. Previously, the applicant was able to give his evidence in chief over the course of the morning on Monday, 4 September 2023.  His evidence included the voluminous documents and correspondence that had amassed over a 40-year period during which his complaints were pursued by him. He gave evidence of highly relevant information relating to his pre-employment health.

13. The applicant used the opportunity to put his version of events.  At the time that the strike out application was made by the respondent, the applicant’s case was at its highest point.  He had presented his documentary evidence and had given oral evidence and had not at that stage been subject to cross-examination.

14. For the reasons set out below, the Tribunal finds that the respondent’s application is properly made with regard to s 42B(1)(b) of the AAT Act.

15. In making this finding, the Tribunal was also mindful that out of fairness to the applicant, there was no point in him proceeding with the hearing and undergoing the pressures of cross-examination and then the complex legal arguments as he had no prospect of success.  Therefore, the order of the Tribunal is that a reviewable decision is upheld.

    Analysis

16. The applicant was born on 13 July 1953 and so was 70 years old at the time of the hearing. 

17. The history from documents and confirmed in the applicant’s evidence is that he had problems from a young age with regards to his mental health.  These issues have been described as depression in the older medical evidence from the 1980s. When he had been attending university in Adelaide in 1972 his condition deteriorated so that he required treatment and medication.

18. Mr Shulten said that prior to taking up employment with the Commonwealth he had a year off when he lived in Queensland and was able to work on his health and fitness, losing a considerable amount of weight.  However, he confirmed in evidence that when he was in Queensland, he had difficulty interacting with people. He had difficulty in understanding what people said to him, and he did not have the ability to ask them to clarify statements he thought they made, for reasons he could not explain.  He had difficulties with his landlord and the suspicious opinions she held and comments she made (or that he perceived she made). 

19. These were examples of the problems that were affecting him continuously prior to his employment with Commonwealth government agencies.

20. This employment took place in the 1980s and in essence the applicant has framed his case on the basis of him being subject to harassment in the workplace which caused mental distress. He described acts that would probably fit a definition of hazing.  He described a fellow employee giving him a Nazi salute.  He described having a birthday cake in July 1984 on which there was a candle in the shape of a penis.  He described pornography being left on his desk when he returned after a period off work.  These are a just a few examples of a very long list of interactions.  He described fellow workers approaching him and saying comments such as “Watch out” or “You’re going to get it” and then walking off.  He said he did not know why they did it because he did not ask them what they meant.

21. He thought that the television would mention his name (this complaint pre-existed his Commonwealth employment).  He thought he might mention something to a work colleague and then it would appear later in an office memo or a media story. He thought they were using what he described as his intellectual property.

22. He described quite an understandably disturbed environment in which he lived because of his fears and perceptions.  He honestly recounted that he was not definitely sure his name was being mentioned on the television (as an example) but that was his perception.

23. However, based on the problems he described prior to his employment, his perceptions were something that affected him in any event and in any environment. 

24. It should be noted here that there are factual disputes about the events that occurred in the mid-1980s, but most contemporaneous witnesses were not available. They had given earlier statements and there were documents in the evidence before the Tribunal.

25. There was a focus in this matter that there needed to be some actual bullying, but this was not necessary and to a degree distracting.  It was not a matter in which fault had to be established (in the Tribunal’s opinion) for his interactions at work to be affected by his pre-existing medical conditions.  It was the insidious and debilitating nature of his pre – existing condition that what were just everyday interactions with people were much more complex for him.

26. The contemporaneous notes and records from the 1980s reflect the high levels and difficulties in interacting with his co-workers.  The applicant, by way of self-preservation, would withdraw from interaction and social settings.

27. The applicant initially lodged a claim under the Compensation (Commonwealth Government Employees) Act 1971, claiming he was bullied and harassed during the course of his employment with the Department of Administrative Services (“DAS”) when based in Canberra.  Liability for that claim was denied by determination 16 June 1988.  It is a fair assessment that the medical evidence he relied upon was vague, and the determination noted there was a lack of corroborative evidence submitted by the applicant to support his claim that he was subjected to an unreasonable workload or unfair treatment by other workers and superiors.

28. The medical evidence back then was that his underlying condition was a major contributing factor in his inability to continue with work.  That is, the condition from which he suffered made it difficult to interact with others as a consequence of his misreading their behaviour or perceiving things occurring that were not actually happening.  That increased his burden.

29. There was no appeal of that decision. 

30. The applicant lodged a further claim on 1 July 2013 for “Schizophrenia and emotional disorder” which he claimed was due to bullying and harassment that he sustained in 1985 whist an employee of the Commonwealth.  That is, in essence, re-claiming the earlier matter.

31. The response to that from the Commonwealth was that as the previous claim had been denied, there would be no further action taken on that second claim.

32. It would appear that details of the appeal process were not provided to the applicant in the 1988 claim.  There was ongoing correspondence with Comcare on appeal rights which included an assertion on 17 January 2014 that Comcare was prejudiced in dealing with the applicant’s matter because it was “unable to request reports or clinical records from those practitioners who had treated you at that time [the 1980s]”.  In a letter, Comcare advised that it was not prepared to allow any extension of time for the applicant to request a re-consideration and that it was not prepared to reconsider the determination issued on 16 June 1988.

33. It would appear that that decision notified on 17 January 2014 was not the subject of any further proceedings at the time.

34. This is consistent with the applicant’s evidence that he often did not deal with matters and the Tribunal accepts that was an aspect of his medical condition.  However, the validity of Comcare’s assertion of prejudice was not tested in 2014.

35. A further claim was made on 6 July 2020 for “anxiety, depression, stress and schizophrenia” and the date of injury was noted as July 1985.  The applicant asserted that his previous claim had been “fraudulently bungled”.  The issues noted by the applicant were again fault-based including use of his intellectual property (that he explained in part as discussions would have with other employees) then appearing in departmental memos or other documents - but not limited to that.

36. He made complaints about the doctors who assessed him for the Commonwealth.  He mentioned the media intrusion which has been described and the issues with his co-workers.  He considered there was a conspiracy against him in his section of the public service and government, although these are more general perceptions that he had rather than specifics.  The applicant also considered he had been slandered and wanted to clear his name.

37. It would seem that this 2020 application was a request for an “Act of Grace” payment.  Comcare proceeded to make a determination dated 22 April 2021 which gave the applicant appeal rights which he has exercised to bring these proceedings.  On 10 August 2021, the applicant requested a reconsideration noting much the same information as above but extending that to raise matters relating to the previous Prime Minister, Bob Hawke, and also media intrusion into his life and issues relating to what he described as the 1985 Australian Bicentenary bungle.  He considered that Comcare had failed to address his complaint that there was a conspiracy against him by a section of the government and various other issues of a similar nature. 

38. Relatively contemporaneous medical evidence confirmed the applicant had problems prior to his employment with the Commonwealth.  Medical reports over the years also show a variation in the applicant’s condition.  The applicant was employed by DAS between 1983 and 1984.  The applicant moved back to Adelaide and in approximately 2010 came under the care of Dr Del Sante who reported on 25 February 2021 that the applicant was chronically and significantly impaired due to his mental health issues. 

39. The applicant’s recollection is that he was subject to harassment.  The Tribunal accepts that he gives honest accounts of his perceptions, but it does not mean he was subjected to workplace harassment back in the 1980s. Certainly, the incidents he describes are not outside the lived experience of people working in office environments back in the 1980s.  The applicant has regularly repeated his complaints over the years that have passed since his first complaint. 

40. The relatively contemporaneous evidence indicates that the applicant was perceiving that he was being harassed at his place of employment.  Thus, going to work caused him to have interactions with people that in turn caused him to have these perceptions.  However, that was the case prior to his employment with the Commonwealth.  The evidence from Dr Hundertmark with regard to the workplace incidents from the 1980s was as follows:

    “It would appear that he was suffering from a paranoid psychotic illness at the time and the best way he could try and understand what was going on around him was to make allegations of bullying and harassment.”[1]

    [1] Exhibit 4, p 15.

41. Dr Hundertmark also noted that an office environment is a very difficult one for paranoid individuals as they project their own internal concerns onto workers around them.  His opinion was that the applicant gradually developed a paranoid psychotic illness which first affected him during his time at university.  His view was that the applicant suffered from paranoid schizophrenia and that it greatly affected him to the point where he became unemployable.  He noted:

    “It is unfortunately the case that schizophrenia often has a downward course and has an impact on the individual in that way that it has affected Mr Shulten.”[2]

    [2] Exhibit 4, p 16.

42. This is the definitive medical evidence on this matter.

43. The matter was then the subject of a further review by Dr Hundertmark dated 13 September 2023 in response to the concerns raised by the Tribunal.[3]  After considering evidence of the applicant’s problems at work, such as reacting poorly to jokes made in the office area, and problems that Mr Shulten was “always trying to read something into what someone said as if the comments had a deeper meaning”, Dr Hundertmark advised:

    “Mr Shulten’s employment with the Commonwealth was not a contributing factor to the contraction, aggravation, acceleration or occurrence of his psychological condition, that being schizophrenia.”[4]

    [3]  Exhibit 5.

    [4] Exhibit 5, p 3.

44. The Tribunal has certainly ruled elsewhere that employment can exacerbate a schizophrenic condition which obviously would predate employment but was made considerably worse as a consequence of it. 

45. In the matter of Manuel and Comcare (“Manuel”) [5] such was the case.  The evidence in Manuel was that the applicant had schizophrenia prior to the motor vehicle accident (which was compensable) but the effect of the accident aggravated the condition to a material degree.  Following the motor vehicle accident, the applicant’s condition in Manuel deteriorated dramatically and at the time of the assessment was totally incapacitated for any employment.  However, here we do not have such a dramatic identifiable incident but rather, incidents occurring in what the relatively contemporaneous evidence would describe as a normal office setting and similar incidents having occurred previously with regard to the paranoia that was noted pre-employment.

    [5] [2009] AATA 848.

    Application

46. The medical evidence before the Tribunal which deals with the specific issues of causation is that of Dr Hundertmark.  It does not support the applicant, as noted above.

47. The current application is the review of the same incident that has been dealt with previously and arising almost 40 years ago.

48. Providing weight to the medical expert evidence as it stands at the time of the consideration of the power under s 42B(1) of the AAT Act is necessary. [6]  The evidence of course is that of Dr Hundertmark as described above.

    [6]  Carvalho and Comcare (Compensation) [2022] AAT 1081, [28].

49. The applicant made a conscious decision not to adduce additional evidence and there was no contradictory evidence to that of Dr Hundertmark.  One practical reason for this was the significant time that had elapsed and the number of medical assessments that were made between the original complaints and the actual hearing were not conclusive in the applicant’s favour, which caused an issue where there needed to be an assessment of that evidence and the evidence of Dr Hundertmark.  Dr Hundertmark also had significant amounts of information before him in the form of medical reports dating from July 1986 to July 2021.  He also had factual information before him in the form of statements of various co-employees.  However, his reasoning as the Tribunal found, was not on a factual dispute as to whether the incidents actually took place but on the medical basis that the condition existed, and that whilst Mr Shulten might perceive incidents arising from negative workplace interactions, that was a symptom of his condition rather than a cause of his condition.

50. Referring to the decision in Carvalho v Comcare, a forensic decision was made by the applicant not to lead medical evidence. In this matter, in the absence of evidence contradicting the views reached by Dr Hundertmark, the applicant has no prospect of success.  The reasoning - “If the substantive hearing was to proceed, there was no evidence to connect [his] claimed condition and [his] former employment with the Commonwealth”. 

51. A similar situation arose in cases brought to the Tribunal’s attention such as Oliver and Comcare (Compensation).[7]

    [7] [2018] AATA 1964.

52. In making its determination, the Tribunal does not consider the case was inappropriately put forward by Mr Shulten.  It was not frivolous, vexatious or misconceived by him.  His beliefs are found to be genuinely held but that cannot impact on the medical evidence which, while it understands his condition, it does not provide the sufficient link to employment.  The Tribunal proceeds on the basis that there is no reasonable prospect of success.

1. The Tribunal is mindful that due to the clear medical evidence, it cannot substitute a lay inference.  There was no contest of the medical evidence.  There is ample guidance from Superior Courts on this issue.  This is the position with respect to the Compensation (Commonwealth Government Employees) Act 1971, ss 27(1) and 29(1)-(2) and the operation of ss 124(1), 1A and (2)(c) of the Safety Rehabilitation and Compensation Act 1988.

2. With no contradictory medical evidence for the tribunal to consider, the claim has no reasonable prospect of success. The Tribunal applies s 42B(1)(c) of the AAT Act.

3. The Tribunal does not find that this was a vexatious proceeding on the part of the applicant.  He genuinely holds his views.

4. However, this is essentially a re-litigation of issues that have been dealt with previously.  The respondent has raised the issues as to the difficulties and prejudice it faces with regards to the very long period of time, which is self-evident. 

   DECISION

5. In the circumstances described above, and in so far as it is necessary, the reviewable decision is affirmed. 

58.     I certify that the preceding fifty-seven [57] paragraphs are a true copy of the reasons for the decision herein of Member A Ward

.............................[sgnd]..................................

Associate

Date of Decision:

10 October 2023

Date of Hearing:

4 September 2023

Representative for the Applicant:

Self-represented

Solicitor for the Respondent:

Counsel for the Respondent:

Rosemary Waldron-Hartfield
Moray & Agnew

Peter Woulfe