Uka and Comcare
[2004] AATA 893
•26 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 893
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/110
GENERAL ADMINISTRATIVE DIVISION
Re: JAMES MADUKA UKA
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 26 August 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
COMPENSATION – worker's compensation – workplace stress – schizophrenia – whether employment contributed to the development of or aggravation to a material degree – compensable injury
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
Golds v Comcare (1999 FCA 1481
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Trewin v Comcare (1998) 84 FCR 171
Wiegand v Comcare Australia (2002) 72 ALD 795
REASONS FOR DECISION
26 August 2004 Miss E.A. Shanahan, Member
1. This is an application by James Maduka Uka (the applicant) for review of a decision of a delegate of Comcare (the respondent) rejecting the applicant's claim for compensation for a nervous breakdown (later termed an acute reaction to stress). Following the applicant’s request for reconsideration, the decision was affirmed by an authorised review officer (ARO) on 9 February 2004. The applicant lodged an application for review of the decision by the Tribunal on the same day.
2. The applicant was self‑represented, and the respondent was represented by Mr J. Lenczner of counsel, instructed by Phillips Fox, solicitors. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents), the applicant’s reply to the respondent's statement of facts and contentions (Exhibit A1) and the report of the Mental Health Review Board (Exhibit A2). The respondent tendered its statement of facts and contentions with attachments (Exhibit R1); a supplementary report by Dr Y. Greenberg, psychiatrist, (Exhibit R2); a statement of Mr A. Gilbert, the applicant’s immediate supervisor, (Exhibit R3); a statement of Mr C. Mosele, an officer of the Federal Court of Australia (the Federal Court), (Exhibit R4); a statement of Ms B. Armatys, a solicitor at Phillips Fox (Exhibit R5) and copies of the documents provided to Dr Greenberg for her opinion (Exhibit R6).
BACKGROUND TO THE APPLICATION
3. The applicant was appointed to the position of Administrative Services Officer, Class 3, in the Australian Public Service, effective from 2 November 1992. The applicant was to work in the Victorian District Registry of the Federal Court and his appointment was made under the Equal Employment Opportunity Program. His appointment was subject to a six month probationary period, during which time his employer would assess his conduct, work performance and medical fitness, before his appointment could be confirmed. The applicant was, at the time of appointment, 35 years of age, having been born on 5 November 1957 in Nigeria, and was a permanent resident in Australia.
4. The applicant’s supervisor provided probationary reports on a regular basis, from March to May 1993. All found the applicant’s performance unacceptable due to a lack of knowledge, a high error rate and unacceptable behaviour. The applicant denied all of these negative assessments and blamed them on an in‑house culture of a leisure time concept and conflict with his immediate supervisor, Mr Gilbert. Mr Gilbert had provided a report listing the applicant’s errors and conflict with clients, dated 4 April 1993. The applicant was advised on 22 April 1993 that his appointment would be terminated. On 29 April 1993 the applicant tendered his registration to the District Registrar of the Federal Court. The applicant’s resignation was accepted and took effect from 7 May 1993.
5. On 23 June 2003 the applicant lodged a claim for rehabilitation and compensation on the basis that his currently diagnosed illness of paranoid schizophrenia had arisen from his employment with the Commonwealth Government between November 1992 and May 1993.
6. On 24 July 2003 a delegate of the respondent rejected the application and that decision was affirmed on 9 February 2004 by an ARO.
7. Between 1993 and 2004, the applicant has undergone psychiatric investigation and treatment, and he has been diagnosed as suffering from schizophrenia. He has had several inpatient admissions to hospitals in Victoria, New South Wales and Queensland. He has been involuntarily detained in a psychiatric hospital and is now receiving appropriate medication, without documented evidence of improvement. He admitted to difficulty in controlling his gambling habit and, for the past two years, has had no fixed address. He is essentially homeless.
8. The applicant has been diagnosed by several psychiatric services as suffering from schizophrenia with poor treatment compliance and a poor prognosis.
9. The applicant contended that his psychiatric disorder of paranoid schizophrenia arises from workplace stress in the six‑month period from 1992 to 1993.
EVIDENCE BEFORE THE TRIBUNAL
Mr James Maduka Uka
10. The applicant agreed with the respondent's statement of facts and contentions with regard to the issues. He identified his injury as paranoid schizophrenia and that there existed a possibility, or probability, that his work in the Federal Court from 1992 to 1993 had contributed to the development of his condition. He denied the vast majority of the incidents recorded in his probationary assessment reports.
Dr Yvonne Greenberg, Psychiatrist
11. Dr Greenberg saw the applicant on 27 April 2004 at the request of the respondent. She had been provided with numerous reports relating to the applicant and these are contained in the T‑documents (T3, T6, T11, T13, T14, T22‑T24), reports from Dr A. Fiedler, general practitioner and the applicant’s reply to the respondent’s statement of issues (Exhibit R6)). Dr Greenberg provided a detailed and lengthy report (Exhibit R1) which she affirmed when giving evidence.
12. In addition to assessing the applicant in person, Dr Greenberg had been asked to comment on the documentation provided to her. In her opening paragraph, Dr Greenberg stated:
…It was not possible to obtain information about any actual traumatic experience at his work place because of the presence of unequivocal thought disorder, illogical thinking and perceptual problems both visual and auditory. His vocabulary, use of words, and understanding of certain concepts was consistent with his education or partial completion of a law degree. (Exhibit R1)
13. Dr Greenberg assessed the documentation as confirming disordered thought processes, hallucinations and paranoia. For example, the applicant felt he was being conspired against by the Federal Court, the Police Force and everyone in Australia.
14. Dr Greenberg assessed the applicant’s impairment at 55 per cent under the Tables of the Guide to the Assessment of the Degree of Permanent Impairment, none of which was work‑related (Exhibit R1).
15. In examination‑in‑chief, Dr Greenberg explained her opinion that the applicant’s work performance and behaviour while employed at the Federal Court were indicative of prodromal symptoms of schizophrenia, by which she meant subtle, but not fully manifest beginnings of the disease (trans p18). Neither the prodromal symptoms nor the fully developed paranoid schizophrenia were, in her opinion, related to his employment. The applicant would not have been aware of the prodromal symptoms at that time.
Mr Andrew Gilbert
16. Mr Gilbert's witness statement (Exhibit R3) identified him as the applicant’s immediate supervisor at the Federal Court Registry. His statement concerned the applicant’s work performance, need for counselling on almost a daily basis and probationary reports. He also detailed an incident wherein the applicant had thrown a marker pen at a co‑worker and another occasion when he was found asleep at his work station. He had noted the applicant’s attitude varied from politeness and cooperativeness to aggression and non‑cooperativeness, and that he frequently muttered offending words audible to co‑workers. Mr Gilbert affirmed his statement in examination‑in‑chief.
17. In cross‑examination, the applicant challenged the episodes of throwing the marker pen and falling asleep at work and denied he had been counselled daily.
18. The Tribunal had difficulty confining the applicant to asking questions of the witness. He tended to make lengthy statements regarding cross‑allegations, Mr Gilbert's negative attitude toward him and asked Mr Gilbert if it made him happy making these reports with regard to him (trans pp23‑30). The Tribunal clarified the issue of the daily counselling with Mr Gilbert. Closer supervision of the applicant had been undertaken after the first probationary report at three months.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Dr Fiedler, General Practitioner's clinical records
19. Dr Fiedler's records dated from 15 September 1999 to 29 March 2004. These records document the applicant’s complaints of stress and negative mental influences on him. Dr Fiedler did not see the applicant between late 1999 and May 2003. On 2 June 2003 the applicant advised that he had attended the Australian Human Rights and Equal Opportunity Commission regarding his claims of discrimination and had been referred for psychiatric assessment at St Vincent's Hospital. On 5 June 2003 Dr Fiedler discussed the applicant with the Psychiatric Registrar at St Vincent's Hospital, who advised that the applicant was frankly psychotic. Dr Fiedler repeatedly advised the applicant to return to a psychiatric clinic and to take the medication that he and others had provided to the applicant.
20. Dr Fiedler provided a report dated 3 February 2004 to Comcare (T32), diagnosing a psychotic disorder with paranoid ideation. He opined that the stress of work may have contributed to, or aggravated, a pre‑existing condition.
Probationer Reports
21. The first probationary report is undated and unsigned, but is headed Probationer Report - 3 month. Mr Gilbert, in his evidence, confirmed that he was the author of this report. The report stated that the applicant had difficulty in communicating and liaising with his co‑workers, he showed aggressive reactions to co‑workers' comments, such as Hi. How is your day going?; he refused to follow his supervisor's directions and he failed to complete assigned tasks. The applicant made numerous errors in filing and indexing legal documents. Data processing, which normally took 5 to 7 minutes, took the applicant 30 minutes and he failed to delete adjourned cases from the database. The public and the legal profession had complained about the applicant’s behaviour and his delay in dealing with inquiries. The report noted that the applicant’s speech …is often difficult to understand and his meanings are ambiguous.
22. On 4 April 1993 a Follow‑up Report had been provided by Mr Gilbert, indicating that there had been no improvement in the applicant’s performance of his duties and detailing further deficiencies, such as keying on to a Cash Register an amount of $42,000 instead of $4200.
23. On 14 April 1993 Ms C. Miller, manager of Client Services, provided a further assessment, observing that the applicant had …a lack of technical knowledge…His error rate is at an unacceptable level…[and] incidents…involving unacceptable behaviour.
24. The applicant had replied to these probationary reports in 1993, denying all the criticisms and stating that clients had praised his work (reply of 11 March 1993). The applicant’s reply of 7 April 1993 stated that he had made efforts to talk to his co‑workers, with improvement in relationships. He requested more co‑operation and fair treatment from Mr Gilbert.
25. On 22 April 1993 the District Registrar notified the applicant that his employment would be terminated on the recommendation of the Director of Court Services. In response the applicant lodged his resignation, effective 7 May 1993. The applicant’s resignation was accepted.
Statement of Mr Christopher Mosele
26. Mr Mosele provided a statement dated 15 June 2004 (Exhibit R4). Mr Mosele had been acting as a counter supervisor in the Victorian Registry of the Federal Court from February 1992 until December 1996 and worked with the applicant from November 1992 until April 1993. He recounted the applicant’s response to a query of how are you going as being a fit of rage.
Statement of Beatta Armatys dated 9 June 2004
27. Ms Armatys outlined her efforts to locate former Registry employees of the Federal Court (Victoria), most of which were unsuccessful given the passage of time.
Psychiatric Reports
St Vincent's Hospital Clinical Notes
28. On 5 April 2003 the applicant was seen at St Vincent's Hospital in the Accident and Emergency Department and was then referred to the psychiatric unit (St Vincent's Mental Health Service) where a diagnosis of probable schizophrenia was made. This was noted to be of approximately 10 years duration. The psychiatric unit lost contact with the applicant when he moved to Sydney. However, the clinical records contain evidence of various contacts made with the Department regarding the applicant. These indicated that the applicant was psychotic and needed hospital admission. The applicant was then referred to a psychiatrist at Redfern Centrelink as a matter of urgency and was officially discharged from the St Vincent's Hospital unit.
Mental Board of Victoria
29. On 14 May 2004 the Mental Health Review Board of Victoria (the Board) found the applicant’s detention as an involuntary patient to be unnecessary and ordered his release from detention. The Board also noted that the applicant was homeless, delusional, had been treated in Sydney, Townsville, and St Vincent's Hospital, Melbourne and had outstanding charges against him for shoplifting. He was assessed as being incapable of giving informed consent to treatment.
The T‑documents
30. The T‑documents contain numerous file notes of telephone conversations with the applicant, the majority of which evidence continuing thought disorder.
Comcare Documents
31. The Comcare computer data notes indicate that an extraordinary amount of effort was undertaken to assist the applicant to obtain treatment.
32. The Tribunal notes that the applicant has sought payment of airfares and other expenses from his general practitioner, Comcare, the District Registrar of the Victorian Registry of the Administrative Appeals Tribunal and other persons. All requests have been refused. Throughout the hearing, it was apparent that the applicant continued to suffer from disordered thought processes as described by Dr Greenberg.
RELEVANT LEGISLATION
33. The relevant legislation is contained in s 4(1) and s 14(1) of the Safety, Rehabilitation and Compensation Act1988 (the Act):
4.(1) In this Act, unless the contrary intention appears:
…
"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.
…
14.(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
SUBMISSIONS
34. The respondent submitted that the applicant’s schizophrenia was a pre‑existing disorder which led to his failure to meet the required work performance standard while on probationary employment with the Victorian Registry of the Federal Court, between November 1992 and May 1993. The respondent conceded that the applicant suffered from paranoid schizophrenia and therefore the only issue was whether his employment with the Commonwealth contributed to the applicant’s condition, to a material degree (trans p32).
35. The respondent relied upon the authorities of Re Wiegand and Comcare Australia (2002) 72 ALD 795, Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 and Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42, which considered the phrase material degree.
36. In her detailed report and evidence, Dr Greenberg had clearly opined that there was no relationship between the applicant's employment and the disease of schizophrenia. She viewed his poor work performance and unusual behaviour at the Federal Court Registry as indicative of prodromal symptoms of schizophrenia.
37. Dr Fiedler stated that stress at work may have contributed to aggravate his pre‑existing condition… but that …it is impossible to state to what degree his employment is a contributing factor. The respondent submitted that Dr Greenberg’s opinion was to be preferred, given that she was a consultant psychiatrist.
38. Similarly, the respondent submitted that Mr Gilbert's recollection of the applicant’s work performance and behaviour was to be preferred to that of the applicant, as Mr Gilbert's recollections were consistent with the contents of the probationary reports.
39. The question of whether the applicant’s condition was sustained as a result of a failure by the employee to obtain a promotion, transfer or benefit in connection with his employment was not pursued at the hearing, but had been addressed in the respondent's statement of facts and contentions, which had quoted the authorities Trewin v Comcare (1998) 84 FCR 171 and Golds v Comcare (1999) FCA 1481.
40. The applicant submitted that he had a disease and there existed the possibility, or probability, that his employment had contributed to this disease. He relied on the evidence of Dr Greenberg to support his submission. He had interpreted Dr Greenberg's impairment rating of 55 per cent not related to employment as a probability estimate, and deduced that there was a 45 per cent probability that his work had contributed to the development of the schizophrenia. The Tribunal discussed this interpretation with the applicant, pointing out the significance of the 55 per cent impairment rating (trans p36). The applicant acknowledged he had misinterpreted Dr Greenberg's assessment as being in his favour.
41. The applicant acknowledged he had received written notification that his probationary appointment was to be terminated (letter from Mr P. Seccombe dated 22 April 1993) on the recommendation of the Director of Court Services. He had also been advised that the Public Service Act does not provide a right of appeal against such a termination. The applicant had asked to resign rather than be terminated. The applicant appeared to understand and agreed that, in the circumstances of his initial appointment, obtaining a permanent position was not a right and was dependent upon his work performance in the probationary six month period.
APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE
THE TRIBUNAL
42. There is no doubt that the applicant suffered from paranoid schizophrenia and continues to do so. The evidence, particularly that of Dr Greenberg, points to there being prodromal symptoms of schizophrenia during the time the applicant worked at the Federal Court Registry, from November 1992 to May 1993 (Exhibits R1 and R2). The applicant’s ongoing psychiatric disorder was evident at the hearing and is documented in the transcript.
43. Dr Greenberg advised that current psychiatric research suggests that schizophrenia is a genetically‑based condition. The only medical literature evidence to support any contribution to the manifestation of schizophrenia by employment factors is …that a cataclysmic shock or very major frightening event might precipitate an acute episode [of psychosis] (Exhibit R2). There is no evidence that such an event occurred in the applicant’s workplace during the period under consideration.
DECISION
44. The Tribunal is satisfied that the applicant suffers from severe paranoid schizophrenia with poor response to treatment and a poor prognosis. His thought disorder persists and his insight into his condition is limited.
45. Dr Greenberg's evidence that the applicant’s behaviour and unsatisfactory work performance in 1992 and 1993 were prodromal symptoms of his schizophrenia is compelling.
46. The Tribunal finds that the applicant’s employment with the Commonwealth did not contribute in any way to the development of his disease. The evidence indicates a reverse causal relationship, that is, the early symptoms of schizophrenia resulted in his poor work performance to such a degree that termination of his appointment was recommended.
47. The Tribunal affirms the decision under review.
I certify that the forty‑seven [47] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd): Catherine Thomas
ClerkDate of Hearing: 16 June 2004
Date of Decision: 26 August 2004
Solicitor for the applicant: Self‑represented
Counsel for the respondent: Mr J. LencznerSolicitors for the respondent: Phillips Fox
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