Thorpe and Comcare
[2001] AATA 337
•24 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 337
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1113
GENERAL ADMINISTRATIVE DIVISION )
Re VICTOR THORPE
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date24 April 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............(Signed)...............................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
WORKERS' COMPENSATION – pre-existing bipolar affective disorder – was condition aggravated by work
REASONS FOR DECISION
Mr. D.W. Muller, Senior Member
This is an application to review a decision to refuse compensation for the applicant's psychiatric illness of bipolar disorder.
Mr. Thorpe, the applicant, claims that the stresses he experienced whilst working for the Department of Immigration and Multicultural Affairs (DIMA), contributed in a material degree to the aggravation of his pre-existing illness to the extent that he has become permanently impaired and he can no longer engage in remunerative employment.
The applicant was born in Brisbane on 30 December 1952. His first treatment for bipolar disorder occurred when he was studying in England in 1975, when he was 22 years of age. He has suffered from the illness ever since. He has had episodes from time to time which have required medical intervention and hospitalisation. In between his severe episodes, he has been able to live a relatively normal life. The episodes have occasionally been triggered by events which the applicant has found to be stressful.
After graduating from University with a Bachelor of Arts, the applicant returned to Australia. He obtained work in the Department of Industrial Relations. He then worked as a medical records clerk. He joined the then Department of Immigration and Ethnic Affairs (DIEA) (later, the Department of Immigration Local Government and Ethnic Affairs (DILGEA) and then the Department of Immigration and Multicultural Affairs (DIMA)) on 3 September 1979, where he remained until he resigned on 30 October 1992.
During the time that Mr. Thorpe was working for DIMA he was treated and/or hospitalised on the following occasions. The consultation/admission notes contain the following comments.
14 August 1980 to 11 September 1980:
"Victor has apparently been well controlled for the past 10 months on no medication. About 3 weeks ago he became muddled and hyperactive according to his wife and had great difficulty sleeping. ……. On the day prior to admission he became markedly hyperactive, restless, aggressive and talking about strange things connected with religion.
In the past he has been diagnosed as schizophrenic, however, on the last admission this diagnosis was changed to manic depressive psychosis.
His prognosis is favourable in view of his recent 18 months of good adjustment during which he has maintained a job in the public service and was married at the beginning of this year. His wife understands the nature of his illness and is prepared to assist the patient in taking his medications etc."22 May 1985 to 7 August 1985:
"Last week had experienced decrease in sleep, grandiose delusions, frustrated, flight of ideas, gave mouth to mouth resuscitation on premature baby – no indication. Problem with role of his house – believed deal was not being handled properly. Brought in by father-in-law. Apparently poor compliance with medication at home.
Six previous admissions with bipolar affective disorder. Treated with Lithium and berothazine in past.
Lives with wife and two children. Wife just gave birth to premature baby and had just come home.
Flight of ideas, grandiose, animated, moving quickly. Speaking high powered medical jargon."1 November 1986 to 9 January 1987
"Nil stressors identified.
Very good functioning previous year presented to the Casualty Department with the police under Section 26 of the Mental Health Act. His wife had called the police and gave a history of evolution of a relapse of his hypomanic illness over the previous 2 months. This initially began with agitation and decreased sleep progressing to overactivity, moving furniture in the middle of the night, writing letters of complaint to various people and prior to admission he had developed grandiose delusions. He believed he could influence the Federal Ombudsman to change immigration policy and claimed to be a federal agent and a Greek philosopher.
Treatment and Progress in Hospital:
Because of his initial extreme agitation and aggression he was neuroleptised, using intravenous Haloperidol and Diazepam. With continued treatment, including Lithium Carbonate, Haloperidol and Clonazepam, he showed a slow improvement in his mental state. A change from Haloperidol to Chlorpromazine produced a more significant improvement after approximately 3 weeks of admission, but he was not well enough for week-end leave until the middle of December, having been in hospital for 6 weeks. His mental state showed further deterioration shortly after this, requiring an increase in Chlorpromazine, to 800mgs/day, and his Lithium Carbonate was increased to 750mgs/day. At this stage his Serum Lithium was 0.8MMOL/L. His mental state again showed improvement and he had successful leave over Christmas. At this stage, Chlorpromazine was reduced to 600mgs/day and the Lithium Carbonate reduced to 1,500mgs/day. He remained well and at the time of discharge his Lithium level was 0.9MMOL/L this was prior to reducing his Lithium to 1,500mgs/day. He has requested follow-up at the Stones Corner Psychiatric Clinic and an appointment was made prior to discharge."January 1987
"Currently claims to be coping well at work: neatly dressed bearded man: good insight, judgment, orientation and fully conscious. No signs or symptoms of psychosis, depression, not suicidal. Well controlled bi-polar affective illness."18 February 1987
"Expecting 2nd child: expecting in Sept.
Ambivalent about this – otherwise well."15 April 1987
"Remains well on correct Px."18 July 1987
"Li 1.0 – 18/6/87 – this seems to be the constant level
denies C2 H5 intake or recent ingestion, but is suffering a mild polyuria and polydipsia."30 September 1987
"remains well on current Px. polyuria ? polydipsia ?"16 December 1987
"remains well Li 0.6 6/12 see 4/12"6 April 1988
"remains well Px – Lithium 500mg, 250 mg nocte"21 September 1988
"Se Lithium 0.8 28/8
Well: cont Px – see 6/12"8 March 1989
"Well: euthymic: no symptoms or signs of psychosis: continue and see 3/12"12 July 1989
Se Lithium March 89 0.4: well, no symptoms or signs of psychosis.
See 3/12 continue Px as per 6/4/88 above."4 October 1989
"Well: continue med see 2/12"10 December 1989 to 12 January 1990
"The patient was referred from Princess Alexandra Hospital suffering a hypomanic swing of his bipolar affective disorder. He had been noted to be restless and irritable for 3 weeks prior to admission with a marked deterioration in behaviour for 3 days. This was associated with non-compliance with his lithium. He demonstrated increased agitation and psychomotor activity and reported decreased sleep at the time with marked disorganised behaviour."22 January 1990
"Seems well – not hypomanic now – going to work on Wed – sleep 3 appetite 3 wt 3 energy 3 concentration 314 February 1990
"Recent se L: 0.6 well now but a little insightless – warned to take Px."14 March 1990
"Remains well on Px : no signs or symptoms of psychosis or depression: continue Px as above."30 May 1990
"Claims to be well but very non communicative continue Px and see 3/12"8 August 1990
"Mentally well with L: 1.0"28 September 1990
"Remains well on Lithium ----
No longer takes holopsidol ? Li slightly to 500mg : bd His son has developed juvenile insulin dependant diabetes, which is stressful."28 October 1990 to 7 December 1990
"This 37 year old married clerk has a long history of bipolar disorder. He presented at the Accident and Emergency Department with a history of one week's duration of increasing irritability, decreased need for sleep, elevated mood, grandiosity, increasing disorganisation, impulsivity, and persecutory beliefs surrounding his work with the Immigration Department. This work seemed to be a significant stressor, as was the diagnosis of his son as diabetic."14 December 1990
"Recently discharged PAPM following an admission for hypomania. Currently well on Lithium 500mg bd and holopsidol 1.5mg nocte"14 January 1991
"Remains reasonably well – continue Px as above without holopsidol which P does not like for some reason"13 February 1991
"Long history of BAD
Recent hypomanic swing
Pressure at work/home seems v. relevant
Seems slightly elevated but relates feeling uncomfortable
Try chlorazepam 0.25 mg nocte."20 February 1991
"Discussed at case conference : stable but very chronic
continue and see 6/12"13 March 1991
"Seems a little agitated
Describes work pressure Recheck Li
Improved on chlorazepam"3 April 1991
"Less agitated
Work pressure has settled"29 August 1991
"Fairly settled – Work pressure lessened
A little subdued but denies problems"24 September 1991 to 25 September 1991
"This well known patient with bipolar mood disorder presented in a manic phase with flight of ideas, marked formal thought disorder, grandiose thought content elevated mood and labile affect with increased range. This was despite good compliance with his normal treatment of Lithium carbonate 500 mg bd and Clorazepam 0.5 mg nocte. Apparent recent stressors include increased work load and conflict at his job. In addition there was ongoing stress from his 8 year old son who has IDDM. The patient needs to give his son the injections. This same son is also deaf in one ear and this concerned the patient."1 October 1991
"Ceased halopsidol on discharge main complaint relates to lack of sedativeness.
Try small dose of Melleril 25mg nocte
Euthymic
Insight poor re : this recent episode ie degree of disturbance"October 1991
"Settled
Try smaller dose of Melleril – 10 mg nocte"8 January 1992
"Off thioridazine – 2/12 (took himself off because "no effect").
Counselled re relapse rates etc
Despite this appears well and euthymic
Nil psychotic
Work going well
Off to Perth (in 4/7) for 2/52 holiday"18 March 1992
"Settled still avoiding thioridazine
nil psychotic mood 3 sleep 3
Planning 1/52 holiday to China in 5/52"22 April 1992 to 20 May 1992
"This 39 year old married man who is known to suffer with bipolar affective disorder was admitted in a hypermanic phase. He reported poor sleep for 4 days, racing thoughts and overactivity. He had booked a holiday to Manila the weekend after admission. Collateral from his brothers revealed that he had been irritable and driving around in his car in the early hours of the morning. He had not been eating and had had pressure of speech. They reported that he had odd ideas such as the gas mains were going to blow up and spread flammable items around the yard. Recent stressor included occupational promotional difficulties."27 May 1992
"Euthymic relatively insightless ie has stopped holopsidol
suicidal ideation psychosis"10 June 1992
Definitely unwilling to continue holopsidol – c/o
Uncord c ? & anxiety"1 July 1992
"Seen c wife Better"11 August 1992
"Reviewed on CRISIS
Concerned that he has been interviewed re: work ….. & concerned he would relapse"26 August 1992
"Much improved euthymic
Stress of work – Canberra people i/v'd him c tape recorder & took statement re a mistake he made over an illegal immigrant
Nil psychotic"7 October 1992
"Fragile BAD"14 October 1992
"Settled although has shifted sections at work. Got a poor work report. Given letter re: medical condition to explain sick leave."
Mr. Thorpe tendered his resignation in late October 1992. His supervisors attempted to talk him out of resigning. They explored various options in an effort to assist him, including a medical and psychosocial assessment for superannuation purposes. Nevertheless, Mr. Thorpe remained adamant that he wished to resign. His resignation was accepted on 11 November 1992 and took effect from 30 October 1992.
On 11 November 1992, Mr. Thorpe applied for the Social Security disability support pension. It was granted.
Mr. Thorpe made no further contact with DIMA until January 1997. On 6 January 1997, Mr. Thorpe initiated his claim for compensation. In March 1997, Mr. Thorpe was contacted by a representative of Client Affairs who suggested that Mr. Thorpe apply for the issue of a retrospective Invalidity Retirement Certificate as at 30 October 1992. The suggested claim was made and subsequently granted on 25 August 1997. On 4 September 1997, Comsuper granted Mr. Thorpe the status of total and permanent incapacity pursuant to the provisions of the relevant Superannuation Act.
On 15 July 1998, Mr. Thorpe made his official claim on Comcare for compensation for permanent injury.
In the months following Mr. Thorpe's resignation in October 1992 he continued to be treated for his psychiatric illness and he was hospitalised. His hospital and medical records reveal the following:
3 November 1992
"Mood somewhat "glum" understandably
Thoughts racing/poor sleep
Nil suicidal
Not wishing to consider alternative options to resignation
Seeking legal advice."5 November 1992 to 2 December 1992
"Victor reported a 2-week history of poor sleep, irritability and inability to concentrate, with increased psychomotor activities, increased thought stream and feelings of being out of control. Recent stressors included resignation from a job in the Immigration Department because of what he described as undue pressure placed on him by a team which was investigating him over the entrance into Australia of an illegal immigrant.
Victor was admitted to the ward for ongoing treatment. He was commenced on small doses of Largactil and his Lithium was maintained. He settled slowly in hospital over a period of a number of weeks, with a return to normal of his mood. It was suggested to Victor on a number of occasions that he would withdraw his resignation from the Public Service and apply for a pension. He refused to do this and maintained his resignation.
It was felt that due to the number of episodes that Victor had had in the last 12 – 18 months that institution of some Tegretol would be of benefit to him. Victor, however, was keen to leave before this was instituted, but was happy to look at it as an alternative to help him in staying well. He was discharged, to be followed up by Dr. Thomson at Stones Corner Psychiatry Clinic."17 December 1992
"Rang up ? alcohol ? Li toxicity
Rang ambulance ? PAH."20 December 1992 to 1 February 1993
"This 40 year old man with a long history of bipolar affective disorder was admitted on transfer from the PA Hospital with a manic episode.
The patient had apparently been compliant with his Lithium therapy but had a three day history of insomnia, irritable mood and fatigue. Recent stressors included resignation from work and his up coming 40th birthday.
The patient is normally followed up by Dr Sandra Thompson at Stones Corner Clinic. He was first diagnosed as having bipolar affective disorder in 1975 and has been on prophylactic Lithium since that time. He has had several admissions to the PA Hospital in that time with similar presentations. He has tended to be extremely sensitive to the sedative, extra pyramidal and anticholinergic side effects to the neuroleptic medications. At times he had become delirious and oversedated while remaining manic underneath.
Mental state examination at the PA Hospital revealed the patient to be alternatively irritable and overfamiliar. His thoughts were mildly tangential and circumstantial. He had delusions which were predominantly persecutory. He believed he was being bribed by Tiawanese people and that too many aborigines had died in custody recently. However he had some insight, realising that he was having a "psychotic episode" and was agreeable to voluntary admission to this hospital.
The patient became aggressive on arrival here and required neuroleptising and seclusion. This continued for several days with the patient being uncooperative and aggressive while intermittently oversedated. In view of his sensitivity to antipsychotics he was changed from Haloperidol to Melleril. He improved very slowly continuing to be over sedated and yet hypomanic. He required re-regulation and transfer back to the locked ward for several days. His Lithium level was maintained between 1 and 1.2. The patient was mildly confused at times but never frankly delirious. Tegretol was added and this was thought to contribute to his oversedation. Additionally, his liver function tests became mildly deranged and so this medication was ceased. The patient gradually improved and went on some periods of leave with his wife who was very sensible and supportive. They were keen for him to be discharged and he was allowed home after decreasing the Lithium by 1 tablet."17 February 1993
"Quite elevated Poor sleep good insight
Marked mouth muts & dryness
Looking at hospitalisation if doesn't improve soon"22 March 1993
"Some episodes of shakiness this pm but claims was able to drive here without problem. No ? tremor, nausea or vomiting but feels quite sedated.31 March 1993
"Reviewed
Settled but pursuing FOI for work records
Note ? LFT's"
Between March 1993 and July 1998, the applicant was admitted to psychiatric units in Brisbane with elevated mood on four occasions for periods from three to four weeks. He was admitted in November 1993, August 1995, January 1997 and June 1998. The great majority of Mr. Thorpe's admissions have been for periods of elevated mood, manic episodes. Periods of depressed mood have been less of a problem from the therapeutic point of view.
Mr. Thorpe has attended the Coorparoo Adult Mental Health Clinic for regular review of his condition on a monthly or bi-monthly basis. His treatment at the clinic includes advice on and prescription of relevant medication and supportive psychotherapy.
There is no dispute between the parties that Mr. Thorpe suffers from a permanent psychiatric impairment which makes it unlikely that in the future he will be able to cope with any work which involves the pressures of making difficult decisions or the pressures of time constraints.
Mr. Thorpe concedes that he has experienced stressful events in his private life which have led to manic episodes but he claims that the work environment at DIMA in the late 1980s and early 1990s contributed to his current condition. Domestic stressors included the following:
January 1980 - Father's sudden death
1981 - Wife had a miscarriage
July 1982 - Mother-in-law died1984 - Wife had another miscarriage
January 1985 - Child born prematurely, contracted potentiallylethal virus
August 1990 - Son diagnosed as having diabetes
Work stressors were described by Mr. Thorpe in the following terms:
(In 1985)
"A co-worker and I were subjected to a false complaint of racism from a client. The only reaction we received from the department was a stern letter from Canberra warning that we would face 'stern disciplinary action' if the matter wasn't resolved. No legal help offered. In the end I commenced a suit for defamation against the client, then received a retraction and unreserved apology thus exonerating me and my co-worker. This saved her skin as well but took a lot out of me.
This was the turning point. From late 1985 onwards I worked in the Citizenship section. There was one episode of my illness in 1986 (1.11.86-9.1.87) which followed a short stint at Brisbane Airport. Shift work took its toll.1988 was the "year of Citizenship" and the pressure of meeting harsh work deadlines affected everyone in my section over the next 4 years. For example Brisbane (citizenship) had a staff of 7 compared to our Perth office with fewer applications who had 13 workers.
In the late 80's and early 90's a transformation came over the department. Countless reorganizations, re-shuffling of staff and management supervisors occurred. The 'family atmosphere' was stifled and the 'corporate plan', 'development strategies' and 'multi-skilling' overtook us. Staff morale plummeted.
Managers became less 'people-oriented' and more 'efficiency' and 'budget conscious'.
With the awareness of accountability and FOI laws there was an increasing reluctance for managers to even support their own staff.
I further point out that I was placed under a great deal of stress by the referee's report shown to me on the 13th April, 1992, and that resulted in me being admitted to the Princess Alexandra Hospital on the 22nd April, 1992.
In August, 1992, two men and one woman from the internal investigation section of the immigration department in Canberra came to interview me during working hours at my office, in the course of my employment. They asked me about the processes required to approve a citizenship certificate and then they claimed that checks should be carried out on every application for a citizenship certificate. They did not seem to realise the numbers of citizenship applications that were made every day. They then asked me if I knew certain people (whose names I cannot now recall and that I never knew), with the obvious implication that they suspected me of being in a conspiracy and/or that I had been bribed. They also claimed that the illegal immigrant to whom I had granted a citizenship certificate did not speak English to which I replied words to the effect that if he had won Gold Lotto they would quickly find out that he could speak English. Investigators continued to question my integrity and intimate that I was somehow involved in it.
As a result of this interview I was extremely upset. I recall that on the Tuesday prior to the 30th October, 1992 (when I resigned) there was a presentation in the department with respect to illegal immigrants, which was staged by one of the investigators who had interviewed me. I felt that the presentation was directed towards me. On the Thursday the same investigator who had given the presentation spoke to me and insinuated that he might have found some more irregularities with respect to me. I simply said words to the effect "fine, I am available if you want to talk to me", but I became extremely upset and that resulted in my resignation the next day. I note that out of the thousands and thousands of citizenship applications that I was involved in, it would hardly be surprising that an audit of all the files might find one or two irregularities.
When I resigned I was in a completely manic state, and from my experience with my psychiatric disorder I can say without doubt that the manic state was contributed to by the implications that I was involved in some conspiracy, and the implication on the day before I resigned that some evidence had been found that would or might be used to implicate me in some conspiracy."
The Tribunal heard evidence from two psychiatrists, Dr. Schneider and Dr. Byth.
Dr. Schneider first saw Mr. Thorpe on 1 July 1997. He has relied on Mr. Thorpe's account of the various stressors to form his opinion. Dr. Schnieder gave evidence that bi-polar disorder is very sensitive to stress and that there can be an "additive effect of stressors". He said that the result can be that the illness becomes more severe with additional stressors, or the patient can become resistant to medication. Dr. Schneider believes that the work stressors described by Mr. Thorpe would have been significant factors in the worsening of Mr. Thorpe's bipolar disorder.
Dr. Byth made the following points about Mr. Thorpe during the course of his evidence.
"He Said that he currently feels well, and he usually makes a full recovery between manic episodes. He does not have any symptoms between episodes i.e. no elevated moods, disinhibited behaviour, rapid speech or grandiose ideas.
"He said that his recurrent manic episodes are easily triggered by stress or changing circumstances. Their frequency is unpredictable, although he believed they were more frequent when he was working at the Immigration Department, than since he left work."
"He has never suffered from depressive episodes."
"He has continued to have recurrent manic episodes since he left work in 1992. He believed that some of these recurrences were triggered by the stress of legal and compensation proceedings, concerning his past work at the Immigration Department."
"He is likely to continue to suffer from a similar pattern of recurrent manic episodes. He has only a partial preventative action from mood stabiliser medications."
"He is likely to have a continuing pattern of recurrent hospital admissions for treatment of mania."
"He will need to continue specialist psychiatric follow-up on an ongoing basis indefinitely."
"Although bi-polar affective disorder is likely to become manifest when Mr. Thorpe is put under pressure, there are variations. He has had episodes which were apparently spontaneous and not stress related."
"He has had a similar pattern of recurrent manic episodes before and after his period of employment with the Immigration Department. I did not believe that the work he performed in the Immigration Department permanently or temporarily worsened his Bipolar Affective Disorder."
"Any possible contribution from his employment would have ceased when he left work in 1992. His manic episodes, after he left work, were not caused by the work he performed."
There is no doubt that Mr. Thorpe suffered from his current condition for many years before he joined DIMA. The material placed before the Tribunal does not show the pattern of episodes and treatment before Mr. Thorpe began his employment with DIMA but it does show the pattern after he commenced with DIMA. The pattern seems to have been constant from 1980 to the present. Mr. Thorpe has been subject to constant monitoring with periodical reviews. There have been episodes requiring hospitalisation which have variously been associated with stressors originating in family matters and in work matters. There have been episodes which have not been related to any stressors at all, and one, 10 December 1989, which was associated with a failure to take medication. In between the episodes, Mr. Thorpe has been able to live a relatively normal life, albeit with constant medication. Mr. Thorpe has a bipolar affective disorder which is kept in check by medication. Nevertheless, according to Dr. Schneider, patients can become resistant to medication over a long period of use. Episodes can be triggered by stress or occur spontaneously.
I accept that Mr. Thorpe felt the pressure of his work from time to time. No doubt he felt annoyed when a customer complained about him. No doubt he was disappointed when a supervisor was critical of him. Nevertheless, the only really stressful event which emerges from the evidence is the internal enquiry to which Mr. Thorpe was subjected in August 1992. He took it badly. He resigned from DIMA in a fit of anger or pique. I believe that he later deeply regretted having acted so rashly. There was no need for him to resign. The Department did not seek it. The resignation saga apparently brought on a manic episode. He subsequently recovered from that episode and did not have another episode until twelve months later, November 1993.
I accept the opinion of Dr. Byth, which is clearly supported by the objective facts, that the pattern of Mr. Thorpe's hospitalisation and treatment over the last twenty or more years has remained fairly consistent, irrespective of whether or not he was suffering stress at his work for three or four years at DIMA from 1989 to 1992. He had episodes which required hospitalisation in August 1995, January 1997 and June 1998. If these later episodes were triggered by stressors, there is no evidence before the Tribunal on the point, they had nothing to do with work at DIMA.
I accept the view of Dr. Byth that Mr. Thorpe's Bipolar Affective Disorder has not been aggravated by the work he performed at DIMA nor by any events that occurred during the course of his employment with DIMA.
During the course of Counsel's submissions, points were made about the so-called unfavourable referee's report of April 1992 and the internal enquiry about the illegal migrant in August 1992. Questions arose as to whether or not Mr. Thorpe's displeasure abut the referee's report amounted to stress occasioned by his failure to obtain promotion or a benefit, and whether his distress occasioned by the internal review amounted to a reaction to reasonable disciplinary action. In the light of my decision I find it unnecessary to deal with these matters.
The decision to reject the claim for compensation is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 5, 20 March 2001
Date of Decision 24 April 2001
Counsel for the Applicant Mr. K. Geraghty
Solicitor for the Applicant John C. Potts & Co.
Counsel for the Respondent Mr. C. Clarke
Solicitor for the Respondent Dibbs Barker Gosling
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