Thomson and Comcare
[2008] AATA 678
•5 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 678
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1228
GENERAL ADMINISTRATIVE DIVISION ) Re ROSS THOMSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Saw Hooi Toh, MemberDate5 August 2008
PlaceSydney
Decision The decision under review is affirmed.
...................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
COMPENSATION – workplace injury claim – schizophrenia or self-diagnosed unipolar disorder – late lodgement of claim – no injury accepted by respondent – consideration of prejudice to respondent caused by lateness of claim – decision affirmed.
Safety, Rehabilitation and CompensationAct 1988 (Cth) ss 4, 5A, 14 and 53
REASONS FOR DECISION
5 August 2008 Ms Robin Hunt, Senior Member
Dr Saw Hooi Toh, Membersummary
1. Mr Ross Thomson has been employed as a scientist by various prestigious organisations. He experienced difficulties with his health during his employment at Australian Government Analytical Laboratory (‘AGAL’) in 1989 and resigned in 1990 while being treated for a mental health disorder. Mr Thomson has claimed compensation for aggravation of his disorder caused by incidents that occurred in his former workplace, AGAL.
2. The reviewable decision, dated 12 February 2007, which affirmed a determination of 20 July 2006, disallowed Mr Thomson’s claim and found no injury for which compensation was payable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’). After considering all the material before us, we have decided that the reviewable decision was correct for the reasons set out below. This means Mr Thomson’s claim is unsuccessful.
background
3. Mr Thomson was self-represented before the tribunal and explained at the hearing that he was claiming aggravation of a disability, which he described as “unipolar depression”. In response to questions, Mr Thomson clarified that he was claiming aggravation of a pre-existing condition, as in 1989, when relevant events occurred, he was suffering from diagnosed schizophrenic illness. While he disagreed with this diagnosis, he acknowledged that he was suffering a mental illness before and during his employment with AGAL.
4. Mr Thomson made an unsworn statement at the commencement of the hearing explaining his work history and the background to his claim. He said he joined AGAL in July 1986 and worked in the trace element section for two years. Then, after passing interview and knowledge tests, he was granted permanency in July 1988. He worked a further year in the trace element section. In 1989 he said he was moved to the forensic drug analysis section. He began to suffer unipolar depression, mainly because the work he was doing was not appropriate for him. He resigned from AGAL in July 1990 and went onto sickness benefits. He was granted a disability support pension in August 1991 and did some casual work before taking a casual temporary job at CSIRO in November 1994. He said he worked for five months in bio sensors, then in high frequency antenna calibration for the National Measurement Laboratory until 1997. Mr Thomson indicated that he intended to rely upon the reports from Dr Michael D McGrath and Dr Robert D Lewin. He did not intend to present any additional medical evidence.
5. Included in the tribunal documents is a report from Dr McGrath, dated 17 June 2006, which he furnished to Comcare in response to a letter requesting a report and accompanied by Mr Thomson’s medical release authority. Comcare also tendered to the tribunal reports from Dr Lewin dated 16 August 2007 and 23 June 2008. As well as these more recent reports, Comcare produced to the tribunal reports about Mr Thomson which Dr McGrath had prepared and forwarded to other doctors and medical professionals who were treating Mr Thomson in 1985 onwards. Before us were several brief reports made by Dr McGrath, including reports dated 18 December 1985, 21 May 1990, 13 December 1990, 3 October 1991, 17 August 1993 and 24 August 2004.
6. Mr Thomson submitted a claim for compensation under the SRC Act dated 30 January 2006 for “stress and anxiety disorder, manic depression, unipolar” which he said arose out of “work deadlines” and being “verbally abused”. By determination dated 20 July 2006, Comcare rejected any liability for “schizophrenic disorders” on the basis that there was insufficient evidence that Mr Thomson’s condition was contributed to in a material degree by his employment pursuant to section 4 of the SRC Act. As well, Mr Thomson had not complied with section 53 of the SRC Act in not making any claim until over 16 years after the period when he thought he had suffered an injury. Comcare reconsidered and affirmed the determination dated 20 July 2006, making the reviewable decision dated 12 February 2007. It is this reviewable decision which is the subject of the present review.
issues
7. The issues for our decision included not only whether Mr Thomson suffered an injury pursuant to section 4 of the SRC Act and whether any such injury gave rise to compensation pursuant to section 14, but also whether Mr Thomson had given notice in writing to his employer as soon as practicable after he became aware of the alleged injury, in accordance with section 53 of the SRC Act.
consideration
8. Medical records before us substantiate Mr Thomson’s history of chronic mental illness, which preceded his employment at AGAL. Mr Thomson told us that, in his opinion, he had suffered an episode of schizophrenia before 1989 but this had not affected his ability to work until there was an accident in the AGAL laboratory in 1989. He underwent treatment after the accident and resigned from AGAL in 1990. He said he did not take any steps at that time to claim compensation as he was unaware that he might do this. He became aware of the possibility of claiming compensation some time later.
9. In view of the medical records available to us, which show Mr Thomson’s previous and continuing history of treatment for chronic schizophrenia, we accept that it is appropriate to consider Mr Thomson’s case on the basis of a claim for aggravation of a mental injury rather than an injury simpliciter. Mr Thomson was clearly suffering a mental disorder at the time he commenced work at AGAL and continues to do so although he was able to present his case ably before the tribunal. From the medical records available, his diagnosis was chronic schizophrenia and when asked who had diagnosed “stress and anxiety disorder, manic depression, unipolar”, he told the tribunal that it was his self diagnosis.
did mr thomson fail to give notice as soon as practicable?
10. The respondent’s documents show that Mr Thomson lodged his claim for compensation with the respondent on 30 January 2006. In response to questions about why he did not commence his action for compensation sooner, Mr Thomson gave evidence to the effect that he was unaware in 1989 and 1990 that he could make such a claim.
11. Mr Thomson said he had been advised to bring a compensation claim by someone at the CSIRO. He gave further evidence that after he resigned from AGAL in 1990, he did not work for a time but later commenced to work for the CSIRO on a casual or part time basis. He had ceased to work with the CSIRO in about 1997. Mr Thomson told the tribunal that someone at CSIRO suggested he might have grounds for a claim against Comcare in connection with his former employment at AGAL. He thought he decided to bring a workers’ compensation claim some time after that discussion. Mr Thomson’s evidence was that he had discussions around the time he retired from the CSIRO about bringing a claim for compensation against Comcare in respect of the problems that led to his retirement from AGAL.
12. However, Mr Thomson did not notify Comcare of any claim until 9 years after he left the CSIRO, in 2006. In his formal claim for compensation, dated 30 January 2006, Mr Thomson set out that he was claiming compensation for “stress and anxiety disorder, manic depression, unipolar” due to his employment at AGAL in 1989.
13. Pursuant to subsection 53(1), an employee must give notice in writing of the claimed injury to the relevant authority “as soon as practicable” after the employee becomes aware of the injury. Failing suitable notice, the compensation provisions of the SRC Act do not apply. The subsection reads, in part:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury;
14. Assuming Mr Thomson did suffer a workplace injury in 1989, he was aware of it in 1990, according to records of discussion he had with doctors treating him. The clinical notes of Hornsby and Ku-Ring-Gai Hospital made on 8 July 1990 record that he told the person making these notes that he found his employment “stressful over the last few months”. On 16 July 1990, the hospital notes make another reference, saying that Mr Thomson “(S)ees his job resignation as the only solution to the problem he had at work”. As well, the report of Dr McGrath, consultant psychiatrist, dated 17 August 1993, noted that Mr Thomson felt at that stage that feeling depressed “may have been coming on since he ceased work a few years ago”. However, he did not take any steps to make AGAL aware of any injury or claim of injury until he submitted his claim for compensation on 30 January 2006.
15. Mr Thomson gave evidence that he was overseas for three weeks when he had a holiday in Hawaii and that might have delayed his lodging a claim. He gave further evidence that he was seeing an orthomolecular psychiatrist by the name of Dr Chris Reading around 1997 and 2004. When asked, Mr Thomson thought he might have talked to Dr Reading about bringing a claim for compensation but that it would have been difficult to discuss legal matters with him.
16. Before us is a copy of a typed note addressed to Mr A Griffith of Brock Partners, which is “About Workers Compensation For Mr R. W. Thomson”. This note lists events in Mr Thomson’s life under the heading, “Chronological chart of education and employment and health”, and bears a fax transmission line dated March 2004. Mr Thomson was unsure if he had forwarded this fax but thought he might have mailed the chronology as well as faxed it to Mr Griffith.
17. Mr Thomson gave oral evidence that he started communicating with the firm of solicitors, Brock Partners, in 2004, probably by March 2004, and went back to see Dr McGrath in late July 2004 when he was thinking about making a claim. A letter among the tribunal documents, dated 26 August 2004, from Brock Partners addressed to Dr McGrath, sets out:
Our client believes his employment with AGL (sic) between 1986 and 1990 caused his illness, caused it to reoccur or aggravated his illness.
18. The letter states that an authority is enclosed and a brief chronology that was prepared by Mr Thomson. The above chronology with the transmission line dated March 2004 was attached to the letter. The writer of the letter seeks an opportunity to discuss the matter with Dr McGrath before making a formal request for a report and explains that the writer holds no funds in trust to pay the doctor’s fees. Mr Thomson agreed in response to a question that this must have been something he discussed with Mr Griffith of Brock Partners.
19. Mr Thomson gave further evidence that he discontinued any action through Brock Partners some time towards the end of 2004 after the date of the letter of 26 August 2004. He admitted that he knew at that time that he was entitled to bring a claim against Comcare in respect of the injury he thought he had suffered. He qualified this by saying it might have been that he did not realise he could proceed without a solicitor. He accounted for the lapse of almost a further two years until he made his claim in 2006 by saying, “I had hoped … that I would have been able to do some more work with the CSIRO and I hoped that I might have been retained for a lot longer than I was”. Mr Thomson also suggested the difficult conditions in which he was living, in shared accommodation with other residents, “in a madhouse”, might have been another reason for the delay.
20. When asked if he made any attempts to ring Comcare between 1997 and 2004 to ask them about bringing a claim for compensation, Mr Thomson thought he would have done. However, he gave further evidence that he was not sure when he actually made the original application because he had trouble with memory sometimes. Taking all the material before us as well as Mr Thomson’s evidence about the advice he was given around 1997 and the preliminary enquiries he instructed solicitors to make in 2004, we find, on balance, that Mr Thomson did not make his claim as soon as practicable. He was aware of his entitlements in at least 1997 and again took steps in 2004 to commence a claim but chose not to proceed. We therefore find he does not satisfy the requirements of subsection 53(1).
prejudice caused by delay
21. As well as requiring a claimant to give notice as soon as practicable after he or she is aware of an injury, section 53 limits any claim where the agency involved suffers prejudice or other criteria are not met. Subsection 53(3) further provides that notice shall be taken as given to the relevant authority in compliance with the requirements of section 53, only if the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from ignorance, from a mistake or from any other reasonable cause. This provision reads:
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
22. Mr Thomson gave evidence to the effect that he became aware of having suffered an aggravation of his mental disorder, whether unipolar disorder, unipolar depression, schizophrenia or some other disorder, when he was being treated in July 1990. Mr Thomson’s further evidence was that he did not speak to anyone at work about it. Mr Thomson also said that he felt he could not confide in his co-workers or in his supervisors and found oral communication with them difficult. Nor did he speak to Dr McGrath or any doctor about it. He said:
I tended to separate my work from my emotions and the things that the doctor was dealing with.
23. The time between his resignation in July 1990 and the date of application made on 30 January 2006, is almost fifteen and a half years, a significant delay. There is no record before us of any notice given by Mr Thomson to AGAL or to Comcare before January 2006. To our way of thinking, AGAL and Comcare have suffered significant prejudice and difficulty in investigating Mr Thomson’s claim. Such a long passage of time since Mr Thomson was employed by AGAL has resulted in loss of opportunity to speak to people who were familiar with Mr Thomson and events around the time of the claim.
24. Taking all these circumstances into account, on balance, we find that the respondent would be unduly prejudiced if Mr Thomson’s notice to Comcare in 2006 were treated as sufficient notice. Further, his failure to give sufficient notice did not result from the death, or absence from Australia, of Mr Thomson or of any person, nor is there evidence that the failure arose from ignorance, from a mistake or from any other reasonable cause. The evidence before us is that Mr Thomson was aware in 1997 that he might make a claim and that he considered doing so in 2004, if not sooner, but that he did not take action to serve any notice of his intentions until 2006. It follows that we find that Mr Thomson has not satisfied the requirements of section 53 and therefore cannot make a claim under the SRC Act.
25. Mr Thomson told us he was absent from Australia for a few weeks holiday in Hawaii but an absence of this length does not account for the long delay in making a claim or at least giving some notice that he had a work-related injury or intended to make a claim. Mr Thomson has no explanation in our view that excuses his failure to give notice. We have already found, on balance, that Mr Thomson does not satisfy the requirements of subsection 53(1). We also find, on balance, that Mr Thomson does not meet the exceptions set out in subsection 53(3). This means the SRC Act does not apply in relation to any injury he may have suffered. This is sufficient basis for us to affirm the decision under review unless the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause.
merits of claim
26. In the event that we are wrong about the failure to give sufficient notice, we have also briefly considered the merits of the claim. Comcare has made a valiant effort in locating some personnel records going back to 1988 which it has produced for the tribunal’s assistance. These records do not give rise to the slightest suggestion of any of the problems which Mr Thomson complains that he suffered at work. On the contrary, a confidential report named the “Speers report”, was very positive. Mr Thomson’s initial employment was on a trial basis and was followed by this performance report. The Speers report was prepared at the request of a Commonwealth Medical Officer, following re-examination of Mr Thomson, on 22 June 1988, and praises Mr Thomson.
27. Mr Thomson told us he was badly affected by two accidents at work. In one incident, as we understand his explanation, he had left a magnetic stirrer operating overnight and mercury in a container spilt as a result. In another incident, he burnt his hand with bromide. Mr Thomson said that the incidents led to the onset of depression which became an impairment and an injury for which he was compensable. This onset of depression he said “was determined at the time to be occupational health and safety issues in the trace element section in late 1989, including and the magnetic stirrer incident and the bromide accident”.
28. He gave further evidence that he was troubled by disrespectful younger workers at AGAL. He also said he was moved to the forensic section after these incidents. He liked the forensic work but did not find being asked to give evidence in connection with his forensic work agreeable. However, the Speers report, prepared on 22 August 1988, gives no indication of any problems with Mr Thomson’s performance or relationship with other workers or supervisors. It praises Mr Thomson’s punctuality, speed, reliability, efficiency and initiative. It says he relates well to other workers. It further noted that Mr Thomson participated in various recreational activities with AGAL staff. The report concluded with a statement that Mr Thomson was a highly valued employee. In the final paragraph, it went on to say that he had built up a reputation for good solid work in an area which requires skill and consistent attention to detail. He was regarded as “most suitable for development outside his present areas of expertise”.
29. The personnel file located by Comcare does not contain any incident reports or the like regarding the events which troubled Mr Thomson in 1989, according to his evidence, that is, the magnetic stirrer incident, the bromide burn, or personal conflicts he had with laboratory assistants or other staff. The Speers report of August 1988 says he was a highly regarded, highly competent employee capable of performing work in the forensic analysis section and also capable of being transferred into another section.
30. Material from Dr Honway Louie also conflicts with the applicant’s contentions as to interpersonal problems with his co-workers. Dr Louie’s letter, forwarding a request from Mr Thomson to Lyn Walsh, refers to lack of any complaints by Mr Thomson in respect of stress or illness caused by work related pressure. Dr Louie wrote on 16 February 2006 that he had received Mr Thomson’s claim for workers’ compensation but thought he was not a suitable person to do what Mr Thomson asked of him. The request to which Dr Louie referred was contained in a letter dated 10 February 2006 from Mr Thomson addressed to Dr Louie asking him to complete the employer section of a claim for compensation for psychological injuries suffered at AGAL in 1989-1990. Dr Louie’s letter of 16 February 2006 gave a brief history of Mr Thomson as having worked in the trace elements section for a while in 1989-1990 as a temporary employee. He recalled that Mr Thomson was happy and got on well with people. Later he gained permanent employment in another section where a previous director of AGAL thought he was more suitable with his chemistry qualification. Since then, Dr Louie had lost contact as Mr Thomson no longer worked under his supervision. Dr Louie said he had no idea of what he did nor any stress or illness he had experienced. He said no one had ever mentioned that he had a problem. He added that Mr Thomson had left the job on his own free will.
31. Although there is a lack of contemporaneous documentation of any injury at or arising out of employment, we have medical opinions of doctors and psychiatrists who have treated Mr Thomson or examined him more recently. Mr Thomson, in his written form of claim for compensation, claimed he had suffered stress and anxiety disorder, manic depression, and unipolar depression, as a consequence of things that happened at work with AGAL between 1986 and 1990. However, Dr Lewin, consultant psychiatrist, examined Mr Thomson at Comcare’s request and made a psychiatric assessment on 9 August 2007 which does not support Mr Thomson’s claim.
32. Dr Lewin issued a report on 16 August 2007 in which he concluded that Mr Thomson’s schizophrenic illness was evident before he commenced working for the Commonwealth and there was no history to suggest any material contribution to his psychotic illness from Mr Thomson’s employment. He noted that depressive symptoms and anxiety symptoms were common symptoms observed in schizophrenia.
33. Dr Lewin reiterated his opinion in a supplementary report dated 23 June 2008 after he was furnished contemporaneous hospital notes which Comcare had since obtained and to which we have referred earlier in our reasons. These notes did not cause Dr Lewin to change his opinion.
34. In oral evidence to the tribunal, Dr Lewin said:
The tribunal needs to be aware that I have a particular reservation about the capacity that Mr Thomson had at the relevant time for insight. It appears likely on the facts that he was deluded as a result of the schizophrenic condition, and that delusion affected his judgment….
35. When asked by counsel for the respondent about the importance of contemporaneous clinical material in forming an opinion about Mr Thomson’s state in 1989/1990 and possible contribution arising from the employment, Dr Lewin responded:
This is particularly an issue in a case of this nature because there appears little doubt in my mind that Mr Thomson’s understanding of these matters is now very markedly affected by a set of delusional and bizarre ideas.
36. Mr Thomson told the tribunal that he had been referred to Dr McGrath, who had treated him for some years for his mental condition. The first report of Dr McGrath available to us is one dated 18 December 1985, written to a nursing sister at a community centre. Dr McGrath writes that Mr Thomson has been under hospital care for schizophrenic illness and was currently “fairly well maintained on a regime of Modecate 12.5 mgm intramuscularly each fortnight”.
37. On 21 May 1990, Dr McGrath advised that the dose should be increased to 25 mgms per month. The clinical notes of Hornsby and Ku-Ring-Gai hospital made on 31 July 1990 show the dosage administered at that time was 12.5 mgms and that Mr Thomson was “reluctant” to see Dr McGrath and unhappy about the increased dose.
38. On 13 December 1990, Dr McGrath wrote to a Ms Birch that Mr Thomson wanted to reduce the dosage and suggesting he might go on a lower dose for a trial period before review in the new year. On 3 October 1991, Dr McGrath wrote to a Mr Chambers, observing that Mr Thomson was a chronic schizophrenic but that he agreed with Mr Thomson’s request to reduce the dosage to 12.5 mgms each 6 weeks but would keep this under review. On 17 August 1993, Dr McGrath thanked the person to whom he was writing for drawing to his attention some problems Mr Thomson was experiencing and suggesting a different medication with review in 2 weeks time.
39. On 24 August 2004, Dr McGrath replied to a letter from Mr Thomson’s then solicitor, in which he wrote that he saw Mr Thomson on 28 July 2004, which was the first time he had seen him for many, possibly, 10 years. Dr McGrath observed that Mr Thomson suffered long standing schizophrenic illness but is very intelligent and able to work at different times. He said he had been treating Mr Thomson since his late twenties. He believed another psychiatrist was currently treating Mr Thomson and that he had “responded well to a novel anti-psychotic drug–Clozapine and is now in a position to pursue his entitlements”.
40. He further stated:
Mr Thomson’s last employment was curtailed due, I presume, to his deteriorating mental health.
41. From the personnel records available to us it is plain that Mr Thomson’s employment was not as Dr MrGrath presumed and that AGAL did not curtail his employment. AGAL was happy with his performance and Mr Thomson decided to resign when he was unwell. Also, Dr Angus Cottee who was the applicant’s general practitioner at the relevant time, reported on 16 March 2006, in a referral letter to Dr McGrath:
I have not seen Ross for many years. He presented with a request to fill out a compensation form relating to his illness of 1990. I thought as the treating doctor that this would be best performed by you. I do not think I have any records in our archives for this illness.
42. In his report dated 17 June 2006, in response to Comcare’s letter asking him if he might be able to furnish some information about Mr Thomson’s illness, Dr McGrath wrote:
I have not seen Mr Ross Thomson for a considerable period of time until he visited my rooms in Bowral.
43. Dr McGrath further indicated that he no longer had records, saying:
He had transferred his care to the local community centre and I had not retained his records and medical records are particularly hard to obtain from what was Mt St Margaret’s Hospital, Ryde. You will therefore appreciate that some of my responses to your specific questions are somewhat fragmentary.
44. Nevertheless, Dr McGrath stated that the specific diagnosis was one of chronic schizophrenia in which there were periodically acute symptoms of psychosis with paranoid delusions necessitating hospitalisation from time to time. He further commented that Mr Thomson was an intelligent man but lacked insight. Dr McGrath could not think of any new aggravating factor although he may have been concerned about his aging parents. The doctor thought “the natural history of his disorder is for some degree of permanent change” although recent medication had some beneficial effect.
45. We can find no support in the medical opinions before us for Mr Thomson’s claim that his mental illness, however diagnosed, was aggravated by incidents at work. Section 14 of the SRC Act requires us to decide whether Comcare is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment. An “injury” is defined in section 5A to mean a disease or other injury arising out of or in the course of employment. The definition also includes an aggravation of an injury arising in the same circumstances. Having considered Mr Thomson’s evidence and the medical opinions before us, on balance, we find that Mr Thomson suffered no injury, disease or aggravation of an injury or disease that arose out of or in the course of his employment at AGAL.
conclusion
46. For the above reasons, we find that Mr Thomson suffered no work-related mental injury, whether described as schizophrenia, unipolar depression, unipolar disorder or the conditions set out in Mr Thomson’s claim form, being stress and anxiety disorder, manic depression and unipolar. We also restate our first finding that Mr Thomson’s late claim does not meet the requirements of section 53 of the SRC Act and is therefore not sufficient to ground a claim under the said Act. Mr Thomson’s case founders on both counts.
decision
47. The decision under review is affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Saw Hooi Toh, Member
Signed: ........................[Sgd]..............................
Jennifer Wong, AssociateDate/s of Hearing 23-24 June 2008
Date of Decision 5 August 2008
Solicitor for the Applicant Self-represented
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Ms A Bortone, Sparke Helmore Lawyers
0
0
0