Trumpf and Comcare

[2008] AATA 1024

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1024

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600806

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHAN TRUMPF (formerly STEPHEN FITZSIMMONS)

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Member
Dr M Denovan, Member

Date14 November 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd].............................

Member

CATCHWORDS

COMPENSATION – Claims  – rescission of decision accepting liability for hepatitis B – claim for adjustment disorder – adjustment disorder not due to employment – no aggravation of adjustment disorder – no acceptance of liability to pay compensation – decision under review affirmed.

Compensation (Commonwealth Government Employees) Act 1971 ss 27, 45(2A), 39

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14

Wiegand v Comcare Australia (2002) 72 ALD 795.

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Kirkpatrick v Commonwealth (1985) 9 FCR 36

Re Madden and Australian Postal Corporation (2008) 102 ALD 406

REASONS FOR DECISION

14 November 2008 Mr R G Kenny, Member
Dr M Denovan, Member    

DECISION UNDER REVIEW

1.      On 17 January 2006, Stephan Trumpf, previously known as Stephen Fitzsimmons, submitted a claim to Comcare under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for acceptance of depression as being related to his employment with the Australian Customs Service (ACS).  Comcare rejected that claim on 24 May 2006 and affirmed that decision on 5 September 2006.  The matter is now to be determined by the Administrative Appeals Tribunal (“the Tribunal”).

LEGISLATION

2. In accordance with s 14 of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. The term “injury” is defined to include a “disease”. Relevant definitions in s 4(1) of the Act read:

“aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development

disease means:

(a)       any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

injury means:

(a)       a disease suffered by an employee; or

(b)       an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)       an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

APPLICANT’S CASE

3.      Mr Trumpf began working for ACS in 1987 in various places including Brisbane.  He was based at the Brisbane airport for about 10 years and then was in the central office before he served a 2½ year period with the National Marine Unit (NMU) during which he began to experience lethargy and tiredness.  He returned to office work with ACS but his symptoms continued.  In February 2003, his general practitioner, Dr Richard Kidd, diagnosed hepatitis B and encouraged him to apply for workers compensation.  Dr Kidd was of the opinion that the condition was occupationally caused through contact with foreign boat occupants while Mr Trumpf was with the NMU.  Comcare accepted liability on 8 May 2003 with effect from 19 February 2003.  Comcare paid compensation to Mr Trumpf until, on 5 September 2005, it reversed its decision on liability with effect from 23 August 2005.  Ultimately, Mr Trumpf sought review of that decision by the Tribunal.  However, the matter did not proceed to hearing because the application for review was withdrawn by Mr Trumpf on the advice of his solicitor.

4.      On 5 January 2006, Comcare wrote to Mr Trumpf requesting repayment of the compensation monies which had been paid to him.  The amount was approximately $100,000.  On 13 February 2004, Dr Kidd diagnosed Mr Trumpf as suffering from depression.  As noted above, his claim for compensation in relation to depression was made on 17 January 2006.  In July 2008, Mr Trumpf received a redundancy package from ACS and, at that time, ACS also advised that he did not have to repay the compensation monies previously paid to him.

5.      Mr Trumpf’s wife, Ms Isobel Fitch who is also an employee of ACS, made submissions on behalf of her husband.  She contended that the actions of ACS personnel with whom Mr Trumpf has had dealings in relation to compensation matters materially contributed to the aggravation of Mr Trumpf’s depressive state.  Ms Fitch conceded that aspects of the compensation process itself could not be considered as being causally related to the condition and she purported to distinguish that from the actions of ACS.  These included the following:

·after compensation was paid for 45 weeks, the amount of Mr Trumpf’s compensation payment was to be reduced but the change was not made at the appropriate time with the result that an overpayment in the order of $3,000 was raised against Mr Trumpf by letter dated 5 August 2004;

·in settling arrangements for repayment of the $3,000 debt, ACS staff threatened to impose interest on the outstanding sum, were unsympathetic to the financial difficulties of Mr Trumpf and Ms Fitch at the time and prolonged the negotiations whereby repayments were to be made from Ms Fitch’s wages;

·obstacles were placed in the way by ACS staff when Ms Fitch and Mr Trumpf sought, in mid 2004, to adopt the suggestion of Dr Kidd that they might benefit from relocating from Brisbane to the Gold Coast.  This outcome was eventually achieved and Ms Fitch transferred to Coolangatta Airport;

·in 2005, Mr Trumpf became aware that his compensation payments did not include a marine allowance.  ACS had not advised him of the allowance which eventually was refused.  Mr Trumpf believed it was payable to him because his hepatitis B was related to his work with the NMU whereas Comcare were of the opinion that Mr Trumpf  began to experience symptoms of hepatitis B after he left the NMU;

·Mr Trumpf was required to repay the compensation monies he had received but was given no information in relation to his options for having the repayment decision reviewed;

·Mr Trumpf was not advised of his eligibility to receive a home assistance allowance as part of his compensation entitlements with the result that it was not granted until June 2004;

·many errors were made in calculating his allowances including the delay of several months in recognising his eligibility for a performance assessment payment  in late 2004;

·initially, there was a refusal to reimburse Mr Trumpf for costs associated with approved counselling sessions which he attended in August 2005 after the decision was made to reverse the compensation decision but before this had been communicated to Mr Trumpf.  These  costs were subsequently met;

·a Commonwealth medical officer, Dr Sowby (specialist in occupational medicine), was unsympathetic to Mr Trumpf’s suffering from hepatitis B and was unwilling to have regard to medical evidence proffered to him by Mr Trumpf when he saw him in 2005;

·there was reluctance to provide Mr Trumpf with Dr Sowby’s report and it would only be released to him through Dr Kidd; and

·his rehabilitation consultants were frequently changed in 2004 and 2005.

6. Mr Trumpf, in his evidence and in documentation before the Tribunal, attributed malice to ACS personnel in their dealings with him in the matters listed above and believed that their actions were taken deliberately in order to defeat his entitlements and to force him to resign from ACS. He described all of the matters as being stressful and was unable to rank them in any order of severity. Ms Fitch submitted that each of the identified matters had a detrimental effect on Mr Trumpf in that they aggravated his depression but that, in any event, the cumulative effect of them should be considered. She submitted that only one contributing factor need be demonstrated in order to satisfy the causal provisions of the Act and that, even if there was a degree of irrationality in her husband’s perception of the intentions of the CSA personnel, this did not defeat the causal association. For those propositions, Ms Fitch relied upon the Federal Court decision of Wiegand v Comcare Australia[1].  She also submitted that the persuasive medical evidence was that of Dr Kidd because of the extent of his personal knowledge of Mr Trumpf and of the history of the condition as it has impacted upon him.  On that evidence, she submitted, there was an aggravation of Mr Trumpf’s depression by employment-related matters.  

[1] (2002) 72 ALD 795.

MEDICAL EVIDENCE

7.      Evidence was given and reports provided by specialist in occupational medicine Dr Steve Buckland, psychiatrists Dr Greg Apel and Dr Jill Reddan and Mr Trumpf’s general practitioner Dr Richard Kidd.  Other reports in evidence were from psychiatrists Dr Christopher Danesi and Dr Norman Rose and from treating psychologist Leonie Bennett. 

Dr Kidd

8.      Dr Kidd has treated Mr Trumpf for over 10 years.  His opinion was that Mr Trumpf’s hepatitis B was acquired during his employment with ACS through exposure to unsanitary conditions, in particular, while on board foreign fishing vessels.  He referred to tests performed on 14 February 2003 which enabled him to make the diagnosis of hepatitis B.  As a result of the condition, Mr Trumpf had been unfit for work.  He commenced a return to work program in August 2003.  By October 2003, he was not coping and his hours were reduced though these built up again in November 2003.  At that time, Dr Kidd noted increasing loss of energy and other features which resulted in him diagnosing adjustment disorder in February 2004. 

9.      Dr Kidd agreed that perceptions by Mr Trumpf that ACS was biased against him, lying to him, dragging its feet and trying to undermine his health could all perpetuate and worsen depression.  However, he considered that these matters of process were not the real cause of the condition as it started beforehand with the diagnosis of hepatitis B. 

10.     Dr Kidd described an overwhelming, very distressed and tearful reaction by Mr Trumpf to the cancellation of his compensation payments.  He recommended that Mr Trumpf and his wife move to the Gold Coast from Brisbane and, although Ms Fitch was eventually able to transfer to Coolangatta airport with ACS, Mr Trumpf experienced much frustration with ACS because of what he believed to be measures obstructing the move.  Dr Kidd also described Mr Trumpf as being “very distressed” and “angry” when he learned that he had been overpaid in his compensation payments by about $3,000 which had to be repaid.  This was because he received no apology from ACS and was unable to find closure concerning his health issues.  Dr Kidd agreed that he did not always distinguish between the actions of ACS and Comcare.  He also agreed that he had become an advocate for Mr Trumpf but considered that this was the case with all general practitioners and their patients. 

Leonie Bennet

11.     Mr Trumpf was referred by Dr Kidd to psychologist Leonie Bennet who produced a report dated 26 September 2005.  By then, she had seen him for 18 counselling sessions.  In her report, she noted that the referral letter from Dr Kidd included his opinion that Mr Trumpf‘s depression had come about as a reaction to the diagnosis of hepatitis B.  Ms Bennet expressed the same opinion.  She also described matters which presented Mr Trumpf with problems which brought about fluctuations in his emotions.  These included negative comments and lack of assistance in arranging the transfer to the Gold Coast; perceptions that there was a lack of flexibility in his work program; and the termination of his compensation payments.   

Dr Apel

12.     Dr Apel interviewed Mr Trumpf on two occasions and completed reports on 13 September 2006 and 13 February 2008.  On the first occasion, he diagnosed Mr Trumpf as having an adjustment disorder with depressed mood.  He considered that an event of major significance was necessary in order to precipitate depression and he distinguished such events from minor incidents which would cause mere frustration in an individual.  Although, in his second report, Dr Apel was unclear of the cause of Mr Trumpf’s depression, in his evidence he attributed it to Mr Trumpf’s learning of the diagnosis of hepatitis B; to the manner in which his compensation claim for that condition was dealt with, in particular, to the claim for repayment of the compensation monies; and to lack of contact with former ACS workers after he had left work in 2003. 

13.     Despite his reference to the role played by being diagnosed with hepatitis B in the development of depression, Dr Apel’s opinion was that hepatitis B itself was not responsible for the continuing clinical symptoms of depression.  Dr Apel agreed that the actions of ACS employees were a continuing source of concern to Mr Trumpf in the sense that there was no resolution of the hepatitis B claim.  However, his opinion was that, while Mr Trumpf’s psychiatric state continued from its onset in early 2004 to when he last saw him, it did not get worse than it had been but, rather, was perpetuated by events which occurred to him.

Dr Rose

14.     In his report, dated 5 April 2005, Dr Rose considered that Mr Trumpf suffered from dysthymic disorder, a depressive condition of less severity than major depressive disorder.  He attributed it to Mr Trumpf’s reaction to being diagnosed with hepatitis B. He saw Mr Trumpf in March 2005 and considered that the condition was continuing and had not been superseded by another episode.

Dr Reddan

15.     Dr Reddan’s opinion was that Mr Trumpf suffered from adjustment disorder which had its onset in early 2004.  She said there was no real difference between that and the diagnosis of dysthymic disorder made by Dr Rose.  She considered the primary determinants of this to be uncertainties in relation to the cause and progress of his hepatitis B, symptoms of possible sleep apnoea, his dissatisfaction with the compensation and return to work processes and his personality style.  She considered that the presence of hepatitis B and the duties he had performed with ACS were not causally associated with his adjustment disorder.  Dr Reddan noted Dr Rose’s opinion that reaction to being diagnosed with hepatitis B precipitated the depressive condition and said that, when Dr Rose saw Mr Trumpf in 2005, concern may have been more with the initial cause of it.  She said that, when she saw him 2 years later, her concern was with the reasons for the condition persisting.  Her opinion was that the initial psychiatric condition had not been aggravated or worsened since its onset but had been perpetuated by a range of factors in particular Mr Trumpf’s personality style, his preoccupation with the compensation process and the development of some paranoid thinking. 

Dr Danesi

16.     In his report, dated 13 October 2008, Dr Danesi referred to a sleep study conducted on Mr Trumpf on 15 May 2008 which showed no evidence of sleep apnoea.

Dr Buckland

17.     Dr Buckland completed a report on 10 March 2008.  He saw Mr Trumpf in relation to his capacity to return to work and concluded that, because of his depression, he was unfit to return to work at that time.  His opinion was that being diagnosed with hepatitis B was the initial cause of Mr Trumpf’s depression and that the condition had continued because of the $100,000 debt which had been raised against him.  

Dr Peter Stevenson

18.     Dr Stevenson, physician, saw Mr Trumpf in April 2005 and completed a report on 29 April 2005.  He confirmed the diagnosis of hepatitis B and considered that he also suffered from adjustment disorder or depression which he described as a not uncommon reaction to being diagnosed with hepatitis.

CONSIDERATION

19.     We do not accept the submission of Ms Fitch that Dr Kidd’s evidence should be preferred over that of the other medical practitioners.  Although, in detailing his qualifications, Dr Kidd said that he has a special interest in psychiatric matters, it remains the case that he is not a psychiatrist.  Also, we have noted his concession that he is an advocate for the cause of Mr Trumpf and have concerns about the extent that may impact on his objectivity.  Dr Apel, Dr Reddan and Dr Rose are specialist psychiatrists and we prefer their evidence to that of Dr Kidd in relation to matters that fall within their specialty. 

20.     We have also noted the reference by Ms Fitch to the decision in Wiegand v Comcare Australia[2].  However, that case was concerned with contribution by work-related factors to the aggravation of the employee’s depression.  That is not the case with Mr Trumpf.  As noted above, the term “aggravation” includes acceleration or recurrence.  In order for a condition to be accelerated, it must be made worse[3].  The evidence of Dr Apel and Dr Reddan is that there was no worsening of Mr Trumpf’s underlying depressive state.  The evidence of Dr Rose was that the initial condition had not been superseded by another episode.  All of them described a continuation or perpetuation of the initial condition.  We are satisfied that there was no aggravation of Mr Trumpf’s underlying adjustment disorder.

[2] (2002) 72 ALD 795.

[3] See Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593.

21.      In his evidence, Mr Trumpf conceded that there were times when he confused the respective roles of ACS and Comcare.  This is reflected in the range of matters listed above.  Some are related to ACS and some to Comcare.  In any event, as we see them, they occurred after Mr Trumpf’s depression was diagnosed.  They made no contribution to its onset.  While we accept that the listed matters had a negative impact on him, any contribution they made to his psychiatric state was to its continuation or perpetuation.   That was the evidence of Dr Apel and Dr Reddan. It was also the evidence of Dr Buckland.

22. As to the initial cause of depression, Dr Rose’s opinion was that it was a reaction to Mr Trumpf being diagnosed with hepatitis B. Dr Apel was also of that opinion. That condition is not employment related and, accordingly, a relationship between adjustment disorder and hepatitis B does not fall within s 14 of the Act. In addition, Dr Apel implicated the compensation process, particularly Comcare’s demand for repayment of the compensation monies, as well as lack of contact with former ACS workers after he had left work in 2003. It was conceded, properly in our view[4], by Ms Fitch and Mr Trumpf that the compensation process itself is not a causal phenomenon for the purposes of s 14 of the Act. We are also satisfied that absence of visitations to Mr Trumpf at his home during his illness is not a matter of causation envisaged by s 14 of the Act. Dr Reddan, in her report, nominated a range of factors as the primary determinants of Mr Trumpf’s condition. One of these was his dissatisfaction with the return to work process. Mr Trumpf had 2 months off work after being diagnosed with hepatitis B and, from August 2003 until February 2004, he engaged in return to work programs. These were not successful and he has not worked since then. No issues relating to those programs have been raised by Mr Trumpf or Ms Fitch as being causally associated with the development of Mr Trumpf’s depression. We also note that, in her evidence, Dr Redden said that, when she saw Mr Trumpf in 2007, her concern was not with the initial cause of his psychiatric state but with the reasons for its persistence.

[4] See Kirkpatrick v Commonwealth (1985) 9 FCR 36 at 40 and Re Madden and Australian Postal Corporation (2008) 102 ALD 406 at 413.

CONCLUSION

23.     We are satisfied that Mr Trumpf’s adjustment disorder is not a disease or injury suffered by him in the course of his employment with ACS.  

DECISION

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member; Dr M Denovan, Member

Signed: ............................[Sgd].................................................
  Elizabeth Young, Research Associate

Date/s of Hearing  20, 21, 22 October 2008
Date of Decision  14 November 2008
The Applicant was assisted by his wife Ms I Fitch
Counsel for the Respondent     Mr J Pappas
Solicitor for the Respondent     Ms F Dempsey, Australian Government Solicitor