Vidler and Comcare
[2011] AATA 248
•14 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 248
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2553
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN VIDLER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date14 April 2011
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Mr Vidler is entitled to compensation for medical treatment, incapacity for work and permanent impairment as a result of his accepted Adjustment Disorder injury.
Comcare is to calculate the amounts of compensation that are payable to Mr Vidler in accordance with these reasons.
The parties have 14 days in which to file submissions in relation to orders for costs.
............................[sgd]..................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - Adjustment Disorder injury - liability established by consent decision - construction and scope of consent decision - present liability - subsequent determination to deny liability under specific heads of entitlement at a date preceding consent decision - alleged novus actus interveniens and new cause of action - meaning of 'aggravation' - causal tests for incapacity, medical treatment and permanent impairment – continuing effects of injury – multiple causes of incapacity – no sole cause test – decision set aside
Administrative Appeals Tribunal Act 1975 (Cth) ss 34D, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14, 16, 19, 24, 27, 53, 62, 64, 67, 72
Abrahams v Comcare [2006] FCA 1829
Allianz Australia Insurance v GSF Australia Pty Ltd [2005] HCA 26
Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385
Canute v Comcare [2006] HCA 47
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 19 AAR 1
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626
Fitzgerald v Penn (1954) 91 CLR 268
Frosch v Comcare [2004] FCA 1642
Ilsley v Wattyl Australia Pty Ltd(1997) 75 FCR 1
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Lees v Comcare [1999] FCA 753
March v E & MH Stramare Pty Ltd [1991] HCA 12
McAuliffe v Comcare [2002] FCA 769
Melbourne Steamship Co. Ltd v Moorehead (1912) 15 CLR 333
Mellor v Australian Postal Corporation [2009] FCA 504
Migge v Wormald Bros. Industries Ltd (1972) 2 NSWLR 29
Re Fuad and Telstra Corporation Limited [2004] AATA 1182
Re Sadek and Commonwealth of Australia (1988) 14 ALD 769
Re Smith and Comcare [2008] AATA 248
Rothwell v. Caverswall Stone Co Ltd [1944] 2 All E.R. 350
Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157
Sellick v Australian Postal Corporation [2009] FCAFC 146
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
14 April 2011 Mr S. Webb, Member 1. John Vidler suffers from Bipolar Affective Disorder. As a result of this condition, his former employer, the Department of Veterans’ Affairs (DVA), approved an arrangement whereby he worked from his home for a part of each week. Nevertheless, he experienced increased work stress and suffered from an Adjustment Disorder. He claimed compensation. The claim was initially rejected by Comcare and the matter came before the Tribunal for review. In the course of proceedings, on 23 December 2009, the parties reached agreement and the terms of the agreement were given force in a consent decision of the Tribunal. The Tribunal decision determined liability against Comcare for the Adjustment Disorder, with a deemed injury date of 26 January 2008.
2. Subsequently, in 2010 Comcare determined that Mr Vidler was not entitled to compensation under particular heads of entitlement in respect of the injury with effect from 20 June 2008. The reason for this is said to be that Mr Vidler’s home-based work arrangement was withdrawn and this change in circumstance gave rise to a fresh condition that was the cause of his subsequent incapacity. This decision was affirmed on reconsideration and is the subject of these proceedings.
3. The issue to be decided is Mr Vidler’s entitlement, if any, to compensation for incapacity, medical treatment expenses, permanent impairment and non-economic loss as at 20 June 2008 and presently.
4. Comcare asserts that on 20 June 2008 Mr Vidler had no entitlement to compensation in respect of his accepted Adjustment Disorder, and this state of affairs has not changed. In Comcare’s submission:
·Mr Vidler’s accepted Adjustment Disorder had completely or substantially resolved on or before 20 June 2008;
·the removal of his home-based work arrangement on 20 June 2008 caused a fresh condition – even if the Adjustment Disorder had not resolved entirely, it was overtaken by the new condition;
·the fresh condition has not been the subject of a claim for compensation that is presently, or was previously before the Tribunal on review; and
·any claimed incapacity for work or medical treatment from 20 June 2008 is not the result of his accepted Adjustment Disorder but may be attributed to the fresh condition, although this has not been established;
·no liability has been established against Comcare in respect of the new condition – the new condition appears to arise from administrative actions that may be exclusionary for the purposes of section 5A of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), but this has not been determined.
5. Comcare says that the Tribunal’s decision on 23 December 2009 simply and solely determined liability under section 14 of the SRC Act in respect of the Adjustment Disorder. The fact that the decision sets out a date of injury does not exceed jurisdiction in those proceedings, but the Tribunal did not have power to determine whether or not Mr Vidler’s injury was present on the date of the consent decision. The Tribunal’s use of the word ‘suffers’ in the 23 December 2009 decision should not be construed as a conclusive statement of (then) present fact in respect to Mr Vidler’s Adjustment Disorder.
6. Comcare says that the present proceedings do not disturb the effective parts of the decision on 23 December 2009 and the result for which Comcare contends – that the Adjustment Disorder came to an end or was overtaken by another condition on or before 20 June 2008 – is not inconsistent with the Tribunal’s decision on 23 December 2009.
7. In sum, therefore, Comcare says that any incapacity for work, medical treatment expenses or impairment Mr Vidler suffered on and after 20 June 2008 is not as a result of his accepted Adjustment Disorder injury, but is the result of either his previously existing Bipolar Disorder or the new condition that arose on that date. For this reason, Comcare says that the decision under review should be affirmed.
8. For reasons that follow, I do not agree.
background to the issues
9. In order to understand and address the issues it is necessary to set out the history of Mr Vidler’s claims for compensation and the manner in which they have been dealt with in some detail. It is necessary to do so extensively in order to properly expose the issues that lie at the heart of the dispute.
10. Mr Vidler has a long history of employment by the Commonwealth. He also has a history of psychiatric disease in the form of Bipolar Affective Disorder in relation to which he was treated by Dr Lowden, a psychiatrist, until December 2007. In respect of that disease Mr Vidler had the benefit of a home-based work arrangement from approximately 2003 – he worked part of each week at home and the remaining part of each week in the office premises of DVA. Mr Vidler worked in the Ministerial Section of DVA and experienced an increase in his workload following the change of Government in November 2007.
11. On 26 January 2008, following Dr Lowden’s departure, Mr Vidler consulted Dr May Matias, a psychiatrist, who noted the likely presence of an Adjustment Disorder. On 7 February 2008 Dr Matias certified him unfit for work from 7 to 25 February 2008 as a result of an Adjustment Disorder caused by “work place stress”[1]. On 27 February 2008 Mr Vidler again consulted Dr Matias and discussed a number of work-related issues and stressors, of which DVA’s intention to review his home-based work arrangement was one[2]. In a certificate dated 28 February 2008 Dr Matias certified that Mr Vidler was fit for modified duties with limitations “from 4/3/08 to 6/30/08” [3]. The limitations were in the form of “medications”, “psychiatric review” and “continuation of home based work 3 days a week”. The condition was to be reviewed again on 30 April 2008.
[1] T4 folio 21.
[2] Exhibit R2, page 5.
[3] T4 folio 22.
12. What is to be made of the reference in Dr Matias’ medical certificate to ‘6/30/08’ is far from clear. It appears that Comcare understood this to mean 6 March 2008[4]. It is equally possible, however, that the doctor simply used American date notation or made a sequencing error, in which case the date referred to would be 30 June 2008. Considering the nature of Mr Vidler’s ailment and the content of the certificate, particularly the character of the limitations described and the date nominated for review (30 April 2008), it is unlikely that the doctor would have certified Mr Vidler as fit for modified duties with limitations of the kind nominated for only two days. For this reason it is probable that the certificate covered a period from 4 March 2008 to 30 June 2008. This is consistent with other evidence of Dr Matias[5].
[4] T24 folio 95.
[5] See T110 folios 872, 876, 877 and 878, and Exhibit R2, for example.
13. On 12 March 2008 Mr Vidler claimed compensation in relation to “aggravation of bipolar affective disorder resulting in adjustment disorder” that purportedly arose in 1995 and was exacerbated by a defamatory website in 2006 and increasing work stress following the change in Government in 2007[6]. It is clear from the claim form and the attached documents and medical certificate[7] that Mr Vidler was claiming compensation for incapacity and medical treatment.
[6] T4 folios 8-9.
[7] T4 folios 21 and 22.
14. Comcare initiated a number of investigations in response to the claim. Medical reports were obtained from Dr Matias (Mr Vidler’s treating psychiatrist)[8], Dr Saboisky (treating psychiatrist in 1996)[9], Dr George (a consultant psychiatrist)[10], Dr Zsadanyi (a consultant psychiatrist)[11], Dr Morrison (Mr Vidler’s treating general practitioner)[12] and subsequently from Dr Rose (a consultant psychiatrist)[13]. Additionally, a number of witness statements and departmental records were obtained.
[8] T30a, T105, T110; also see Exhibit A2.
[9] T22, T22a and T22b.
[10] T33.
[11] T102
[12] T30b.
[13] T103 and Exhibit R1.
15. Mr Vidler provided two detailed statements addressing his claim[14]. In the first of these, attached to his claim form, Mr Vidler made but a passing reference to the home-based work arrangement[15]. In the second statement on 3 September 2008, however, Mr Vidler responded to the proposition that the review of his home-based work arrangement was “a likely cause of the psychiatric problems that I have suffered as a result of my work with DVA”[16], and he said
“At the time I lodged my claim, I had provided DVA with Dr Matias’ report dated 28 February 2008. In view of that report I believed that DVA would have no alternative to continuing to allow me to work from home for three days a week as I had done for some time. That is the reason that cessation of HBW was not a factor that I mentioned in my claim for compensation.
It seems clear to me that it is DVA’s intention to bring the cessation of my HBW into this matter as a failure to obtain a “promotion, reclassification, transfer or benefit or to retain a benefit, in connection with his or her employment” for the purposes of paragraph 5A(2)(f) of the SRC Act.
Please allow me to repeat that HBW had nothing to do with my decision to claim compensation in March 2008 because it was not a matter that was of any concern to me at that time.”[17]
[14] T4 folios 32-39 and T41 folios 142-148, for example.
[15] T4 folio 33.
[16] T41 folio 144.
[17] T41 folio 144.
16. As can be seen, Mr Vidler was at pains to suggest that any threat to remove his home-based work arrangement was not a matter relating to his compensation claim; it is very clear that this was not the case. Even though Mr Vidler did not expressly refer to the home-based work arrangement in his claim form, he perceived a threat to the continuation of this arrangement and this featured in his presentation and in the progress of his Adjustment Disorder from February 2008 – prior to the claim. There are two salient points: the home-based work arrangement was a medical restriction certified by Dr Matias in respect of Mr Vidler’s Adjustment Disorder on 28 February 2008; and on the basis of Dr Matias’ reports on 1 May 2008 and 4 June 2008 the threatened removal of this arrangement was a stressor that was an operative factor in the progress of his Adjustment Disorder from February 2008[18].
[18] T110 folios 867-876.
17. Comcare says that this specific element or stressor was not present as an operative factor on 26 January 2008 when Mr Vidler first consulted Dr Matias (in place of his former psychiatrist Dr Lowden). It is true that the work stresses about which he complained at that time arose when there was no apparent threat to the home-based work arrangement. It is relevant to note, however, that the home-based work arrangement was medically recommended by Dr Lowden, and Mr Vidler relied upon it for his continuing ability to perform his duties in employment from 2003. To my mind it matters not that this aspect of Mr Vidler’s case arose after 26 January 2008, as it was an integral and operative factor in the emergence and progress of his Adjustment Disorder from February 2008.
18. The contemporaneous notes and reports of Dr Matias confirm this assessment. On 26 January 2008 Dr Matias noted a likely Adjustment Disorder and reported that Mr Vidler was working from home for 2 days each week but he was struggling to cope with the work stresses he was under[19]. On 13 February 2008 Dr Matias recommended that Mr Vidler’s “[home-based] work arrangement remain unchanged as it has been necessary in keeping Mr Vidler’s medical condition stable”[20]. On 28 February 2008 Dr Matias certified Mr Vidler was suffering from an Adjustment Disorder and his fitness for work from 4 March 2008 was subject to a home-based work arrangement at the level of 3 days per week. Dr Matias explained in her oral evidence that this was a necessary restriction in respect of the Adjustment Disorder, and not simply a continuation of previous arrangements in relation to Mr Vidler’s Bipolar Affective Disorder. On her evidence any change in Mr Vidler’s work arrangements would be likely to irritate his Adjustment Disorder and result in additional incapacity for work.
[19] T110 folio 880.
[20] T110 folio 878.
19. It is very clear, therefore, despite Mr Vidler’s protestations to the contrary, that the threatened removal of his home-based work arrangement on or before 13 February 2008 was closely related to the stressors that gave rise to the Adjustment Disorder; it was but one strand among many. It was simply another work stress that fed into his emerging Adjustment Disorder. It was perhaps a stress that was sharpened by reliance in the context of injury and previously existing disease.
20. It appears that DVA was aware that Mr Vidler’s home-based work arrangement was supported (and required) by medical certificates of Dr Matias in respect of his claimed Adjustment Disorder injury. But this did not deter DVA from terminating the arrangement. On 12 June 2008, in a letter to Mr Vidler, Ms Drescher (a DVA Human Resources Manager) said
“Dr Matias in her report has essentially indicated that you are not fit for duty if you are not able to work from home for at least 3 days per week. She has specifically indicated that she believes that should home based work not be available, ‘that it would be extremely difficult for you to continue employment and this would result in your likely mental decompensation due to chronic stress’.
…
Your home based work arrangement clearly needs to be reassessed. Home based work is not an automatic right for employees, and ill health does not alter this situation. All staff have to be fit to work in a normal office working environment, and your treating psychiatrist is clearly indicating that you are not fit to work in a normal office environment.
It is also clear that we need to refer you for further medical assessment under the Department’s fitness for duty processes in order to clarify matters further, and to determine whether you are, or are not fit for continued duty.
We are already experiencing a range of difficulties in managing your work and your workload, and this is exacerbated by your home based work arrangements. Your home based work arrangements need to be reviewed, and this is particularly so with your Claim for Rehabilitation and Compensation for exacerbation of a psychological condition. As it stands, we essentially have no say or control of your home based work arrangements, and this includes your hours of duty. A home based work arrangement that can never be reviewed or altered is far outside our home based work policy.
…
The following decisions have been made regarding your employment arrangements:
…
· Your home based work arrangement will cease when you return from your prearranged Recreation Leave. The date of effect of that cessation of home based work will be 21 July 2008.
…”[21]
[21] T44m folios 234-235.
21. It appears that this letter and the rather surprising decision it conveyed was given to Mr Vidler on 17 June 2008 in a meeting with Ms Drescher and others[22]. It is clear enough that at that time a “medical retirement process” for Mr Vidler was under active consideration[23].
[22] T44o folio 238.
[23] T44o folio 240.
22. This aspect of the case cannot pass without comment. The termination of Mr Vidler’s home-based work arrangement was done in the full knowledge that doing so was contrary to medical advice (and certification) and that his fitness for work depended upon it. Action of this kind by a Department of the Crown is troubling. It raises a number of serious issues, not least in relation to the Occupational Health and Safety Act 1991 and the Public Service Act 1999. These are matters for others to consider; I can only address them insofar as they are relevant in these proceedings. Furthermore, Comcare has responsibilities in relation to occupational health and safety, and yet this aspect of Mr Vidler’s case appears to have passed unnoticed. Mr Vidler had claimed an injury in respect of which he was obtaining medical treatment, and that claim had not been determined when DVA decided to cancel the home-based work arrangement contrary to explicit medical advice and restrictions. Evidence concerning this aspect of his case was before Comcare decision-makers at the primary and reconsideration levels.
23. It appears that Mr Vidler was due to return to work on 23 July 2008, following a period of leave, but he did not do so. He consulted Dr Matias on that day and was certified medically unfit for work[24]. On 28 July 2008 Dr George reported that Mr Vidler suffered from an Adjustment Disorder precipitated by removal of his home-based work arrangement and “Mr Vidler does have a capacity to engage in some work at this stage”, “he is capable of full-time hours provided this includes home-based work”[25]. On 2 October 2008 Dr Zsadanyi reported that Mr Vidler suffered from an Adjustment Disorder that was partly attributable to the “termination of his home based work arrangements” and that he was “not fit to perform the duties of an APS6 in his workplace”[26].
[24] T110 folio 866.
[25] T33 folio 128.
[26] T102 folio 443.
24. These matters were all apparent in the documents that were before Comcare when it made a primary determination in respect of Mr Vidler’s compensation claim on 7 October 2008[27]. As can be seen, the primary decision-maker rejected Mr Vidler’s claim purportedly under section 14 of the Act, but the reasons make clear that the claim was rejected for want of proper notice under section 53 of the Act[28]. Mr Vidler requested reconsideration of the determination[29]. In so doing he commented upon Dr George’s report to Comcare[30] and observed that
“Briefly, Dr George’s conclusion that my psychiatric condition is probably a result of the withdrawal of my continued access to a long-standing home based work arrangement is not borne out by the facts of my case. More than that, I believe that Dr George’s report was deliberately prepared in a manner which he believed would allow Comcare to avoid its liability to me under the SRC Act. In this regard, it is crucial to note that I did not hear any suggestion of a review of my home based work arrangement until late February 2008. By that time, I had been on sick leave for nearly a month due to the stressful nature of my work, particularly after the change of Government in November 2007.”[31]
[27] T45.
[28] T45 folios 283-284.
[29] T47.
[30] T33.
[31] T47 folio 294.
25. There are two points to make about this. First, as I have said, it is clear enough that issues concerning Mr Vidler’s home-based work arrangement were operative in the emergence and progress of his Adjustment Disorder from 13 February 2008. Secondly, these were live issues at that time and were squarely being raised for consideration, albeit in the negative, in the context of his claim for compensation.
26. To the extent that Comcare takes the legal point that these matters were not subjects of Mr Vidler’s claim, I do not agree. It is abundantly clear that Mr Vidler did not expressly raise issues concerning a threat to remove his home-based work arrangement in the claim form he submitted. Nevertheless, the medical evidence is sufficient to establish that this factor was an operative element of his psychological presentation and his Adjustment Disorder when he made the claim. Mr Vidler’s efforts to disavow any relevance of this factor in his claim and to excuse it from consideration must be treated with abundant caution. He was not psychologically well at the time. His statements and assertions on this point were clearly intended to avoid exclusion of his claim, and they were contrary to the medical opinion of his treating psychiatrist. To my mind his statements do not limit his claim. Comcare is not bound to limit its assessment of a claim in relation to an injury to only certain operative issues identified by a claimant and not others[32]. To my mind, despite Mr Vidler’s protestations to the contrary, issues concerning his home-based work arrangement were operative factors in his claimed injury and they were live issues for the reconsideration decision-maker to consider. That is what she did. So, too, they were live issues in the Tribunal proceedings that followed her decision.
[32] Sellick v Australian Postal Corporation [2009] FCAFC 146 per Mansfield and McKerracher JJ at [7], per Buchanan J at [23].
27. Comcare had before it a report by Dr Matias, dated 4 June 2008, in which the doctor clearly identifies an increase in Mr Vidler’s “distress” in the latter part of February 2008 “Because of the possibility of his home based work not being available to him”[33]. As can be seen, Dr Matias reported that she had recommended continuation of Mr Vidler’s home-based work arrangement for medical reasons[34]. She also reported that “Mr Vidler reports that he was still finding increasing stress at work, stemming from the threat of the removal of his home based work arrangement but despite of this he was still attending work five days a week, three days at home and two days in the office”[35].
[33] T30a folio 110.
[34] T110 folios 877 and 878 refer.
[35] T30a folio 111.
28. Mr Vidler’s incapacity for work continued until he was retired on grounds of invalidity on 5 December 2008[36]. It appears that Mr Vidler’s psychological condition did not improve thereafter[37].
[36] T110 folios 858-865
[37] T105 folio 466
29. All these matters are apparent in documents that were before Comcare when the reconsideration decision in respect of Mr Vidler’s claim was made on 5 March 2009[38]. Having regard to what has been said about requirements for notice and claim in respect of an injury in Abrahams v Comcare[39] and Sellick v Australian Postal Corporation[40], it is arguable, at least, that the information before Comcare when it reconsidered Mr Vidler’s initial claim was sufficient to constitute notice and claim in respect of a new or aggravation injury arising as a result of the termination of Mr Vidler’s home-based work arrangement.
[38] T59.
[39] [2006] FCA 1829 at [18] and [21].
[40] [2009] FCAFC 146 per Mansfield and McKerracher JJ at [7].
30. The reconsideration decision-maker addressed issues concerning the removal of his home-based work arrangement in her decision, with reference to the reports of Dr Matias, Dr George and Dr Morrison, as well as a variety of other materials. As can be seen, the 5 March 2009 reviewable decision was expressed operatively in two paragraphs[41]. In the first paragraph, the decision-maker determined “that the Employee is entitled to compensation for ‘anxiety disorder’ sustained on 1 November 1995, which resolved long ago”. The second paragraph is in the following terms:
“I also determine that the Employee is not entitled to compensation for Adjustment Disorder sustained on 8 February 2008 on the basis that it resulted from reasonable administrative action within the meaning of section 5A of the Act.”
The reconsideration decision-maker dealt with the issue of Mr Vidler’s home-based work arrangements in the following way:
“Although it appears that the changes to the Employee’s home based work arrangement contributed to a worsening of his condition, it appears as though he sustained his injury before he was informed of those proposed changes. I note the employee’s letter of 31 October 2008, where he wrote that the first time he heard about a review of his home based work arrangement was in late February 2008, nearly a month after he had already been on sick leave. I therefore do not consider the failure to retain the benefit of his home based work arrangement is relevant to the onset of the Employee’s injury.”[42]
[41] T59 folio 325.
[42] T59 folio 325.
31. Mr Vidler was not happy with this result and applied for review. In the course of the consequent proceedings before the Tribunal alternative dispute resolution processes were undertaken: a conciliation conference was held. Negotiations between the parties resulted in an agreement that was reduced to writing. The terms of the agreement were given force in a consent decision of the Tribunal under section 34D of the Administrative Appeals Tribunal Act 1975. Under that section the Tribunal must be satisfied that it has the power to make a decision in the terms agreed by the parties. By its decision on 23 December 2009[43] the Tribunal decided that:
1. paragraph two under the heading “decision” of the reviewable decision dated 5 March 2009 is varied as follows:
(a) the Applicant suffers from an Adjustment Disorder contributed to, to a significant degree, by his employment sustained on 26 January 2008…;
(b) liability is accepted under section 14 of the [SRC Act]…
[43] T71 folios 346-347.
It was on this basis that the proceedings were concluded without the need for a hearing to be conducted.
32. At this point, it is convenient to address issues relating to the Tribunal’s consent decision. On any fair reading Mr Vidler’s claim for compensation in March 2008 was not limited to section 14 liability alone, but it was also directed to compensation for incapacity for work and medical treatment. It was open for the primary decision-maker to determine those issues, but that did not occur because the decision-maker rejected the claim under section 53 of the Act, for want of notice. The reconsideration decision-maker was not confined to that specific issue, however. Under section 62 of the Act she had power to reconsider all of the matters that were put before the original decision-maker and to “make a decision affirming or revoking or varying the determination in such manner as the person thinks fit”. As can be seen, the resulting decision, in effect, accepted liability for an injury in 1995 and rejected liability for an injury in February 2008. The reconsideration decision-maker did not address issues concerning compensation for incapacity or medical treatment expenses in relation to either injury. Even so, the reconsideration decision-maker had power to do so.
33. As Downes J said in Re Fuad and Telstra Corporation Limited “the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant”[44]. That is the case here. The powers that were exercisable by the person who made the reconsideration were available to be exercised by the Tribunal for the purposes of reviewing the decision in respect of Mr Vidler’s compensation claim[45]. Thus, to my mind, the Tribunal’s jurisdiction in those earlier proceedings was not confined solely to issues of threshold liability for the purposes of section 14 of the SRC Act, but extended to include sections 16 and 19 of that Act.
[44] [2004] AATA 1182 at [4]-[5].
[45] Section 43(1), Administrative Appeals Tribunal Act 1975.
34. Thus, when dealing with Mr Vidler’s application in 2009 the Tribunal was required to make the correct or preferable decision on the materials that were before it, having regard to the relevant circumstances pertaining at the time of its decision[46]. I do not accept Comcare’s submission to the contrary.
[46] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, per Kirby J at 299 to 303.
35. To my mind the SRC Act did not confine the review of Mr Vidler’s case in 2009 to consideration of the evidence at a particular point in time. To be clear, when determining issues of liability in relation to an injury under claim for the purposes of section 14 of the SRC Act the Tribunal must examine the present evidence concerning the claimed injury. In so doing the Tribunal is not confined to the evidence that was before Comcare at first instance or on reconsideration of the claim.
36. Furthermore, a section 14 determination involves five essential components concerning: the giving of notice; the making of a claim; the status of the ‘employee’; the occurrence of an ‘injury’; and whether the injury results in death, incapacity for work, or impairment[47]. For liability to be enlivened under section 14 each of these components must be satisfied. While the legislation does not impose a temporal limit, it is clear enough that consideration of section 14 issues requires consideration of past events and related evidence. Clearly there are temporal elements in respect of the giving of notice and the making of a claim that may require one to consider the state of the evidence at a particular time. Nevertheless, one should not too readily assume a rigid approach. The giving of notice and the making of a claim may take a number of forms and may occur at various times[48]. This does not limit the Tribunal’s consideration, on review, to the particular time when the earlier decisions were made, or to the dates that were determined by earlier decision-makers.
[47] Lees v Comcare [1999] FCA 753 at [35].
[48] Sellick v Australian Postal Corporation [2009] FCAFC 146, per Mansfield and McKerracher JJ at [7]; Frosch v Comcare [2004] FCA 1642 at [8]; Abrahams v Comcare [2006] FCA 1829 at [18].
37. There are temporal considerations in respect of a claimant’s status as an ‘employee’ and the occurrence of an ‘injury’. The defined meaning of ‘injury’ at section 5A is inclusive of a ‘disease’ as defined at section 5B. While these definitions are silent in temporal terms, it is clear enough that an ‘injury’, whether arising out of or in the course of the employment pursuant to section 6, or in the form of a ‘disease’, is located in time by its very occurrence. Any temporal uncertainty concerning the occurrence of an injury in the form of a disease is addressed by a deeming provision: the date of an injury of that kind is to be determined under section 7(4) of the SRC Act. Thus, the injury component of a section 14 determination has a temporal element, but this does not limit the Tribunal, on review, to consideration of the state of the evidence at the time of the injury or any related decision prior to review.
38. The final element under section 14, concerning impairment, incapacity or death resulting from the claimed injury, also involves consideration of past events and evidence. But this, too, is not confined to the date of an injury. It is noted that medical treatment is not one of the preconditioning factors for liability under section 14. While it may be commonplace for an injury to be attended immediately by impairment or incapacity for work, that does not always follow and it cannot be assumed. This is perhaps most obvious in respect of a disease that may require medical treatment without attendant impairment or incapacity.
39. Thus, to my mind, the Tribunal is not confined to a date of injury when considering issues of liability for the purposes of section 14.
40. That said, the Tribunal’s jurisdiction is limited to that conferred upon it by section 64. Thus, when deciding whether the requirements for liability under section 14 in respect of an injury under claim are satisfied at any point in time, it must not exceed jurisdiction or power. Similar considerations arise in relation to medical treatment, incapacity for work and impairment – these are questions of fact that may arise at any point in time in respect to a claim. This approach is consistent with the review and decision-making functions and powers of the Tribunal, stepping into the shoes of the earlier decision-maker to make a fresh decision in substitution of the decision under review.
41. As issues of liability under sections 14, 16 and 19 (and related sections) were before the Tribunal in Mr Vidler’s earlier proceedings, the significance of the tense used in the terms of agreement and in the Tribunal’s consent decision can be seen. It appears that this issue was the subject of negotiations and some complaint by those representing Mr Vidler, presumably on instructions. Nevertheless, the precise wording was agreed. Comcare cannot simply side step the issue after the fact by saying that it was not a relevant or operative issue in the Tribunal proceedings. It was a relevant issue for the purposes of section 14 of the SRC Act, as well as in relation to sections 16 and 19. Comcare was legally represented in those proceedings and at all relevant times, and one must assume, in the absence of evidence to the contrary, that it proceeded, properly informed and in good faith, to agreement and settlement of those proceedings.
42. Thus, as at 23 December 2009, the Tribunal decided that Mr Vidler suffered from an Adjustment Disorder to which his employment contributed to a significant degree, in satisfaction of an ‘injury’ under sections 5A and 5B of the SRC Act. Furthermore, the Tribunal decided that the deemed date of that injury, pursuant to section 7(4) was 26 January 2008. Clearly enough, the Tribunal decided that the preconditions for liability under section 14 of the SRC Act were satisfied. The decision did not go further to specify a date on which section 14 liability commenced. It may have commenced on 26 January 2008, the date on which Mr Vidler first consulted Dr Matias and an Adjustment Disorder was first diagnosed; this is probable if one accepts that the adjustment disorder indicated the presence of impairment on that day. The Tribunal agreement did not expressly address any issues of entitlement under sections 16 or 19, although there was power to do so. But it did indicate the presence of the Adjustment Disorder injury on the date the decision was made.
43. There the matter rested, but only for a short period.
44. Six weeks later, on 9 February 2010 Mr Vidler made a compensation claim for permanent impairment[49]. In an email to Mr Vidler on 16 March 2010 a Comcare delegate explained the reason for a delay in processing the claim: Comcare was intending to use documents that had been obtained in the earlier Tribunal proceedings for the purpose of determining Mr Vidler’s permanent impairment claim[50], but it was precluded from doing so without authorisation from the Tribunal.
[49] T74.
[50] T77 folio 367.
45. Nevertheless, on 26 March 2010 the Comcare delegate informed Mr Vidler that:
“The medical and other evidence available on your claim file suggests that your current psychological condition, namely an adjustment disorder with depressed and anxious mood, has been significantly contributed to by the removal of your home based work arrangements in June 2008, rather than by the work pressures which led to the development of your compensable condition in January 2008.
Therefore compensation may not be payable pursuant to sections 16, 19, 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, on and from 20 June 2008 to the present date.
This letter provides you with the opportunity to present further medical evidence supporting your claims for compensation…”[51]
[51] T79 folio 382.
46. On 1 April 2010, the delegate informed Mr Vidler that a copy of the Tribunal’s decision of 23 December 2009 “is held on your claim file and was considered in the review that established that you do not presently suffer from the effects of your compensable injury”[52]. It appears that this conclusion was reached without reference to the large amount of material that had been obtained for the purposes of the earlier Tribunal proceedings, as at this date the Tribunal had not authorised Comcare to use those materials for any other purpose.
[52] T82 folio 390.
47. Also on 1 April 2010, the Comcare Director of Claims Management Services wrote a letter to the Office of the Commonwealth Ombudsman in relation to a complaint made to that Office by Mr Vidler in respect of his dealings with Comcare. The Director said:
“To assess Mr Vidler’s claim for permanent impairment, Comcare undertook a review of his claim file. Current medical evidence held on Mr Vidler’s claim file indicates that he does not presently suffer from the effects of his work related injury “unspecified adjustment disorder”. The medical and other evidence available on his claim file suggests that his current psychological condition, namely an adjustment disorder with depressed and anxious mood, is significantly contributed to by non-work related factors.”[53]
[53] T85 folios 402-403.
The precise nature and content of the medical evidence on Mr Vidler’s claim file at that time, to which the Director refers, is not clear from this distance.
48. On 19 April 2010 the Tribunal gave orders authorising the parties to use documents obtained in the course of the earlier Tribunal proceedings (with one exception) for the purposes of assessing Mr Vidler’s further compensation claims[54].
[54] T101 folio 435.
49. On 20 April 2010, the Director wrote another letter to the Commonwealth Ombudsman’s Office stating:
“The only issue for consideration by the AAT [in the earlier proceedings that were resolved by consent] was whether Comcare was liable to pay compensation under section 14 of the SRC Act in respect of Mr Vidler’s claimed psychiatric condition.
…
Following the conciliation conference in Mr Vidler’s matter, terms were provided to his solicitors in which it was noted that he had suffered an adjustment disorder on 26 January 2008 (being the date he first sought medical treatment) which was significantly contributed to by his employment. Mr Vidler’s solicitors made a complaint to our solicitors, to General Counsel of Comcare and the Tribunal following provision of those terms. In essence the complaint centred around the use of the word suffered as opposed to suffers. As the issue of present liability was not in issue before the Tribunal, Comcare took the view that nothing turned on the tense of the word for the purpose of whether compensation liability under section 14 arose on 26 January 2008. On that basis the Tribunal’s decision reflects the word suffers.
The Tribunal’s decision does not impact on Comcare’s ability to make appropriate decisions regarding the various other liability provisions (such as medical treatment and/or incapacity) at any time following the acceptance of section 14 liability – nor can it have such effect. The Tribunal’s role in conducting a merit review is to take the place of the decision maker in conducting an independent review of Comcare’s decision – it has no power to bind Comcare into the future…”[55]
[55] T87 folios 406-407.
50. In an undated letter, Mr Vidler claimed weekly compensation for incapacity from 2 September 2008 and provided supporting medical certificates of Dr Matias[56].
[56] T81.
51. On 10 May 2010 the Comcare delegate issued a determination “that on and from 20 June 2008 to the present date you do not suffer a compensable injury as defined” and denied present liability under sections 16, 19, 24 and 27 of the SRC Act. The reason for this determination was said to be that
“The available evidence indicates that your current psychological condition, namely a major depressive disorder, has been significantly contributed to by the removal of the home based working arrangements rather than by the work pressures which led to the development of your compensable adjustment disorder in January 2008, as referred to in the Administrative Appeals Tribunal decision of 23 December 2009. This removal of the home based work arrangement constitutes a failure to obtain or retain a benefit within the meaning of Sections 5A(1) and 5A(2)(f) of the [SRC Act]. As such, your major depressive disorder does not qualify as an injury for the purposes of the Act.”[57]
[57] T90 folio 413.
52. On 11 June 2010, without further evidence, the determination was affirmed on reconsideration in a reviewable decision[58]. It is this decision that is presently before the Tribunal for review.
[58] T96.
53. Having regard to this history, I will now address the specific issues that arise for determination.
did mr vidler’s accepted injury resolve prior to 20 june 2008?
54. The answer to this question is No.
55. As I have said, I am reasonably satisfied that Dr Matias certified that Mr Vidler was fit for duties on the basis of restrictions and limitations that included working from home for 3 days per week in the period from 4 March 2008 to 30 June 2008.
56. On 1 May 2008 Dr Matias reported that “Mr Vidler’s home based work arrangement is being threatened and this is also bringing about considerable stress on him” – “Mr Vidler’s symptoms present as anxiety, anger, depressed mood and frustration”; “These symptoms impact on Mr Vidler’s family life and his productivity”; and “This decrease in productivity further impacts on his mood and adds to the cycle of ill health”[59]. It is very clear that the cycle of ill health to which the doctor refers includes increases in stress that result from the perceived threat to Mr Vidler’s home-based work arrangement, which supported his ongoing productivity. In this manner, and on the evidence of Dr Matias, it appears likely that Mr Vidler’s Adjustment Disorder followed a fluctuating course from 26 January 2008 to June 2008. During this period it appears that Mr Vidler’s fitness for work was predicated upon the continuation of his home-based work arrangement for 3 days each week[60]. Mr Vidler suffered a period of incapacity for work as a result of the Adjustment Disorder from 7 February to 13 March 2008. Thereafter to June 2008, subject to periods of unrelated leave, he continued to work his full duties but with medical restrictions that included working 3 days per week from home.
[59] T110 folio 875.
[60] T110 folio 876.
57. It can be accepted that an adjustment disorder is a reactive condition in which one or more stressors cause clinically significant emotional or behavioural symptoms in the sufferer and, on Dr Matias’ evidence, increased susceptibility to other stresses. In Mr Vidler’s case the symptoms of his Adjustment Disorder were reactive to work stresses that were variable and not static. It is quite clear that Mr Vidler’s perceptions about the removal of his home-based work arrangement were enmeshed with previously existing concerns about his ability to cope and maintain his productivity and performance at work, especially following the change of Government in 2007. By his own account, he perceived the possibility that his home-based work arrangement may be reviewed or terminated as a threat. The perception reinforced his concerns about his ability to cope with his workload and it was a conduit for continuation of work-related stress and anxiety, and the symptoms of his Disorder. As the perceived threat of removal of this beneficial arrangement continued, so, too, did his Adjustment Disorder.
58. In the usual course, and by definition[61], one would expect an adjustment disorder to resolve within six months following the removal of the aetiological stressor or stressors and the consequences of those stressors. The contrary holds: where the stressors are prolonged or have enduring consequences, so too the symptoms of the adjustment disorder may continue. On the evidence of Dr Matias, Mr Vidler’s case conforms to the latter and his accepted Adjustment Disorder injury had not resolved on or before 20 June 2008. I accept Dr Matias’ evidence and so find.
[61] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision. Washington, DC, American Psychiatric Association, 2000) at p. 679.
did removal of mr vidler’s home-based work arrangement cause a fresh injury?
59. It is clear enough from Dr Matias’ report on 25 August 2008 that the removal of Mr Vidler’s home-based work arrangement was “now another cause of distress for Mr Vidler, therefore causing an Ongoing Adjustment disorder with Depressed and Anxious mood”[62]. Her oral evidence suggests that a new Adjustment Disorder arose on the back of Mr Vidler’s existing Adjustment Disorder – the first rendering him more susceptible to the second.
[62] T110 folio 864.
60. Whether Mr Vidler’s changed symptomatology after 20 June 2008 is properly characterised as involving one or two Adjustment Disorders is not entirely clear. It is very clear, nevertheless, that this change in circumstances exacerbated Mr Vidler’s symptoms, in the form of panic attacks for example[63].
[63] T110 folio 866.
61. Under the SRC Act ‘aggravation’ is defined to include acceleration or recurrence. It is well established that aggravation is synonymous with exacerbation, in the sense that the ailment is made worse[64] or the experience of the ailment is “increased or intensified by an increase or intensifying of symptoms"[65] – “Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act”[66].
[64] Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157; Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385.
[65] Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626, per Kitto J at 634-635.
[66] Mellor v Australian Postal Corporation [2009] FCA 504 at [26].
62. In Mr Vidler’s case, the elevated symptoms of the Adjustment Disorder he experienced as a result of the removal of his home-based work arrangement are, in all likelihood, within the meaning of ‘aggravation’ for the purposes of the SRC Act.
63. It is the occurrence of this aggravation that Comcare says constitutes a novus actus interveniens that intrudes upon and overrides Mr Vidler’s previous Adjustment Disorder injury and disentitles him to payments of compensation for incapacity, impairment and medical treatment in relation to his accepted injury. As will appear, that submission is not made out.
incapacity and medical treatment
64. Comcare says that Mr Vidler’s aggravation in June 2008, or his previously existing Bipolar Affective Disorder, are the cause of subsequent incapacity for work and impairment, and it is in relation to those conditions that he subsequently obtained medical treatment. In Comcare’s submission Mr Vidler’s accepted injury was not the cause, in any meaningful sense, of incapacity or impairment, and it did not reasonably require medical treatment, after 20 June 2008.
65. I do not accept that submission.
66. As I have said, Mr Vidler’s accepted Adjustment Disorder injury did not resolve on or before 20 June 2008 and at that date it was productive of partial incapacity for work, impairment and it required medical treatment. Mr Vidler’s employer was aware of Dr Matias’ medical recommendations and certified restrictions concerning continuation of Mr Vidler’s home-based work arrangement when the decision to terminate the home-based work arrangement was taken on or about 12 June 2008. The termination of this arrangement rendered Mr Vidler unfit for work under the medical certification then in force in relation to his accepted Adjustment Disorder. In effect, by this action, DVA ceased providing Mr Vidler with suitable employment that was consistent with his injury.
67. Under section 19 of the SRC Act, an injured worker’s entitlement to compensation for incapacity is determined, in part, in relation to the availability to that person of ‘suitable employment’ as defined in section 4(1). By terminating Mr Vidler’s home-based work arrangement, contrary to medical advice in respect of his Adjustment Disorder injury, DVA withdrew suitable employment during a period of compensable incapacity for work, albeit only partial incapacity. This is a matter that bears upon Mr Vidler’s entitlement to compensation for incapacity resulting from his accepted Adjustment Disorder injury even though that action, unsurprisingly, appears to have aggravated Mr Vidler’s condition.
68. The question posed by Comcare, however, is whether the causal link between incapacity, impairment and medical treatment after 20 June 2008 and Mr Vidler’s accepted injury was broken or supplanted by the aggravation of his disorder when his home-based work arrangement was terminated contrary to medical advice.
69. Sections 16, 19, 24 and 27 of the SRC Act adopt slightly different forms of words to signify the requisite connection with injury: “in relation to” (section 16); “as a result of” (section 19); “results in” (sections 24 and 27). The variations in language between section 19 and sections 24 and 27 are, to my mind, of little moment; the words convey a clear meaning that is well understood in workers compensation law[67]. Terms of this kind have been understood to refer to a relationship of cause and effect that is less direct or proximate than the term ‘caused by’. The word ‘result’ emphasises effect and is less concerned with the proximity of cause and effect[68]. Furthermore, while issues of causation should be determined upon a practical commonsense basis[69], such issues should not be determined on the basis of commonsense alone – one should consider the point of the issue by reference to the statutory subject, scope and purpose and have regard to expert evidence[70].
[67] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464; Ilsley v Wattyl Australia Pty Ltd(1997) 75 FCR 1 at 6; McAuliffe v Comcare [2002] FCA 769 at [11]-[12].
[68] Allianz Australia Insurance v GSF Australia Pty Ltd [2005] HCA 26, per McHugh J at [38].
[69] March v E & MH Stramare Pty Ltd [1991] HCA 12, per Mason CJ at [17]-[18], per Deane J at [6] quoting Lord Reid in Stapley v Gypsum Mines Ltd (1953) AC 663 at 681; Fitzgerald v Penn (1954) 91 CLR 268 at 277.
[70] Allianz Australia Insurance v GSF Australia Pty Ltd [2005] HCA 26, per Gummow, Hayne and Heydon JJ at [96]-[99].
70. The proposition that Mr Vidler’s incapacity for work after 20 June 2008 is attributable to the aggravation of his accepted injury and not to the accepted injury itself requires careful consideration. Reliance has been placed, and much has been said, about Migge v Wormald Bros. Industries Ltd[71] and the oft cited words of du Parcq LJ in Rothwell v. Caverswall Stone Co Ltd[72] concerning novus actus interveniens:
“an existing incapacity ‘results from’ the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though but for the original injury, there would have been no incapacity”
That passage was applied in Re Sadek and Commonwealth of Australia[73], where it was said:
Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause.”[74]
[71] (1972) 2 NSWLR 29, per Sugerman P at 36, per Mason JA at 43-44.
[72] [1944] 2 All E.R. 350 at 365.
[73] (1988) 14 ALD 769.
[74] Re Sadek (1988) 14 ALD 769 at 771.
71. Plainly enough, on these and more recent authorities, if an injury is an “effective and operative” cause of incapacity despite supervening events or subsequent injuries, the resulting incapacity may truly be said to result from the injury[75].
[75] Ilsley v Wattyl Australia Pty Ltd(1997) 75 FCR 1 at 6; McAuliffe v Comcare [2002] FCA 769 at [11]-[12]; ReSmith and Comcare [2008] AATA 248.
72. On the evidence of Dr Matias, Dr Zsadanyi[76] and Dr Morrison[77], I am reasonably satisfied that Mr Vidler’s injury was an effective and operative cause of incapacity when the aggravation of his Disorder occurred, and it continued to be effective and operative thereafter. There is no requirement under the SRC Act to apply a sole cause test when assessing the required connexion between incapacity or impairment and an injury. Furthermore, I am reasonably satisfied, as I have said, that Mr Vidler’s Adjustment Disorder had not resolved prior to the aggravation that occurred when his home-based work arrangement was terminated: the Disorder was aggravated by that occurrence, but it was not entirely displaced or supplanted by it. The causal strands that fed the Disorder prior to the aggravation included the threat of removal of the home-based work arrangements, and these continued after the aggravation, albeit with the threat realised.
[76] T102.
[77] T30b folios 116-117.
73. On this point and related matters I prefer the evidence of Dr Matias and Dr Zsadanyi to that of Dr Rose and Dr George. Dr Matias treated Mr Vidler over an extended period and she was familiar with the full history and details of his psychiatric presentation from January 2008. Dr Zsadanyi reported a detailed history and arrived at very similar conclusions to those of Dr Matias. This should not be interpreted in any way that is critical of Dr George or Dr Rose. Certainly, Dr George’s evidence in substantial part at least is consistent with that of Dr Matias and Dr Zsadanyi – Dr George reported that the removal of the home-based work arrangement “probably precipitated some form of adjustment disorder as a result”[78], but for reasons that are not clear this did not form part of his formal diagnosis[79]. Dr George did not squarely address the earlier onset of an adjustment disorder in or about January 2008. The doctor concluded that Mr Vidler had some capacity for work but this was dependent upon a home-based work arrangement. It will be recalled that Dr Matias had been of that opinion since February 2008 and had gone to some efforts to inform Mr Vidler’s former employer of that requirement. Dr Rose reported difficulty diagnosing a separate adjustment disorder in the context of ongoing Bipolar Disorder and Social Phobia; Dr Rose is of the opinion that these conditions were aggravated by “multiple stressors” in 2008[80].
[78] T33 folio 126.
[79] T33 folio 124.
[80] Exhibit R1, page 2.
74. The present evidence does not establish, as a matter of probability, that Mr Vidler’s Adjustment Disorder injury was displaced or supplanted by a new disorder or the aggravation of the existing disorder. At this point it is germane to note that an adjustment disorder is not a static entity that is stable once established. It is abundantly clear on the evidence of Dr Matias and Dr Zsadanyi that Mr Vidler’s Adjustment Disorder was reactive to a number of stresses over time. Whether each of those stresses caused a fresh disorder to occur is moot, but it is clear enough that each of the reactions to stressors became enmeshed in the evolution and progress of Mr Vidler’s disordered mental state, as strands in a cable, and fuelled its progress. It does not follow, however, that each new reaction displaced or overrode or supplanted the previously existing disorder and the strands of event and consequence that bind and fuel it. I am reasonably satisfied that the aggravation on or about 20 June 2008 did not have that effect.
75. The threat Mr Vidler perceived to his home-based work arrangement was an operative factor in his disease. It is hardly surprising that the realisation of this perceived threat inflamed his disease, with chronic effect. I accept Dr Matias’ evidence that the significance of the perceived threat in the context of reactive disease is not removed by its realisation – the consequence of the perceived threat persists as an operative factor in the progress of Mr Vidler’s Adjustment Disorder injury.
76. This conclusion is consistent with the Tribunal’s decision on 23 December 2009 which, being cast in the present tense, indicates the presence of the Adjustment Disorder at that time. On 1 September 2010 Dr Rose could not diagnose an adjustment disorder and concluded that Mr Vidler “merely had the residual effects of treated bipolar disorder and social phobia”[81]. Once again, I prefer the evidence of Dr Matias, for reasons already stated; Dr Matias reported on 11 November 2010 that Mr Vidler “has ongoing symptoms of the Adjustment Disorder” and “He continues to be incapacitated for any kind of employment”[82]. I accept that evidence and so find.
[81] Exhibit R1, page 3.
[82] Exhibit A2, page 1.
77. As I have said, I am reasonably satisfied that Mr Vidler was partially incapacitated for work as a result of his accepted injury on 20 June 2008 – he was able to work full hours only on the basis, as certified by Dr Matias, that he could work from home for 3 days each week. At that point in time his Adjustment Disorder injury was active and operative on his incapacity for work, and it required ongoing medical treatment. Withdrawal of the home-based work arrangement resulted, as predicted by Dr Matias, in total incapacity for work, and this event aggravated Mr Vidler’s Adjustment Disorder.
78. The consequences of those events are ongoing despite Mr Vidler’s retirement on invalidity grounds in December 2008. So too, in all likelihood, is the Adjustment Disorder injury. I accept Dr Matias’ evidence that the Adjustment Disorder injury has continued from February 2008 to the present to be an effective and operative cause of incapacity and it has required medical treatment. This causal nexus has not been broken by the aggravation of Mr Vidler’s Disorder in June 2008.
79. I am not able to properly determine the amount of weekly compensation for incapacity to which Mr Vidler is entitled, or the amount of any compensation for medical treatment. Those amounts are to be calculated by Comcare.
permanent impairment
80. There is only scant evidence concerning permanent impairment as a result of Mr Vidler’s accepted Adjustment Disorder injury. Dr Matias reported that Mr Vidler’s impairment is likely to continue indefinitely and is consistent with a rating of 15 percent applying Table 5.1 of the approved Guide to the Assessment of the Degree of Permanent Impairment[83]. Dr Rose reported no impairment[84]. Dr Rose’s opinion arises on his opinion that Mr Vidler does not and has not suffered from an Adjustment Disorder.
[83] T105 folio 468 and Exhibit A2, page 2.
[84] Exhibit R1, page 8.
81. There are some difficulties with this aspect of the case. It is perhaps not surprising that Dr Matias’ evidence, as reported, is not entirely clear, as the questions put to her do not squarely address the requirements of the SRC Act or the approved Guide[85]. The starting point is not the degree of impairment and the relevant question is not whether the degree of impairment is likely to continue indefinitely. Rather, the correct approach is to, first, identify any ‘impairment’ (as defined by section 4(1)) resulting from injury under the SRC Act. Next one must determine whether the impairment is permanent, having regard to the meaning of ‘permanent’ and the matters set out in section 24. Then one must determine the degree of the permanent impairment by applying the relevant provisions of the approved Guide.
[85] T105 folios 467-468 and Exhibit A1, pages 1-2.
82. Dr Matias’ evidence is very brief. She described Mr Vidler’s impairment as a result of injury in the following terms: “His reactions to stresses of daily living has led him to modify his living patterns. He is more isolatory. He remains to have poor self-care, which is a contrast from my initial consultations with him. He is solitary, his behaviour is depressed, affect is restricted, and he is prone to anger”[86]. It is necessary to consider the defined meaning of ‘impairment’ at section 4(1) of the SRC Act:
Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
[86] Exhibit A1, page 2.
As can be seen, the definition is expressed in reference to the effects on bodily parts, systems and functions[87]. How this is intended to apply to psychiatric or mental impairments is not entirely clear. Proceeding on the basis that mental functions and processes of the mind are bodily systems or functions, a mental or psychiatric impairment is one involving the loss, loss of the use, damage or malfunction of mental functions or processes of the mind. I note in passing that the function of the definition is to assist construction of the substantive provisions of the SRC Act containing the defined term, and the meaning of the defined term itself is to be construed in relation to the purpose and object of the applicable substantive provision[88].
[87] Canute v Comcare [2006] HCA 47 at [11].
[88] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 per McHugh J at [12]-[13].
83. Considering Dr Matias’ description of Mr Vidler’s impairment, it is probable that his impairment is in the form of damage to or malfunction of mental functions or processes that regulate emotional or behavioural reactions to stress.
84. Dr Matias reported in November 2009 that the degree of impairment is likely to continue indefinitely despite reporting that further treatment by a clinical psychologist would be beneficial[89]. It appears that Mr Vidler consulted Mr Nomchong, a clinical psychologist in 2010. Mr Nomchong was not called to give evidence. In November 2010 Dr Matias stated that “the impairment would continue indefinitely”[90]. I note that Dr Matias’ psychiatric treatment of Mr Vidler has been ongoing from January 2008, as indicated by her clinical notes and the medical certificates she has issued[91].
[89] T105 folios 468-469.
[90] Exhibit A1, page 2.
[91] Exhibit R2 and T81 folios 386-389.
85. Considering the matters set out in section 24(2) of the SRC Act, I accept Dr Matias’ evidence concerning the chronic nature of Mr Vidler’s Adjustment Disorder injury and aggravation, and the likelihood that his impairment, as described, will continue indefinitely even though clinical psychological treatment has been recommended. I note Dr Matias’ oral evidence that an adjustment disorder may be prolonged and become chronic if the operative stressors or their consequences are ongoing. That is so in Mr Vidler’s case: the consequences of the threatened removal of his home-based work arrangement from February 2008 are presently ongoing and it appears that these consequences are operative in the continuing progress of the Adjustment Disorder and its resulting impairments. It is conceivable that Mr Vidler’s impairment may be reduced if the operative factors and their consequences which have prolonged his Disorder are removed; but, presently, that is no more than a possibility that is not supported by evidence. That being so, I accept that Mr Vidler’s impairment resulting from injury is likely to continue indefinitely and it is permanent for the purposes of section 24.
86. Mr Vidler urged me to accept Dr Matias’ assessment of the degree of his permanent impairment: 15 percent under Table 5.1 of the approved Guide. I do not accept that submission.
87. Dr Matias’ assessment of the degree of Mr Vidler’s impairment is not consistent with the impairment criteria that are set out in Table 5.1 at the 15 percent level. In order to satisfy the criteria at the 15 percent level there is a ‘need for some supervision and direction in Activities of Daily Living’ as well as satisfaction of at least one of the sub-criteria[92]. I accept Dr Matias’ evidence that the sub-criterion requirement is satisfied – Mr Vidler’s “reactions to stressors of daily living” cause “modification to daily living patterns”. But the requirement for ‘some supervision and direction with activities of daily living’ is not established on the present evidence. Dr Matias’ reports that Mr Vidler “is more isolatory” and “He is looking at moving to his isolated property in Victoria, to live on his own” is not consistent with that requirement. Nor is Mr Vidler’s own evidence. His evidence in chief is that his wife would sometimes assist or direct him to shower or shave, but he admitted to a “toxic atmosphere” at home. When cross-examined on this point, it became abundantly clear that there are serious difficulties in the relationship between Mr Vidler and his wife to the extent that Mr Vidler was asked to leave the marital home. It is difficult to reconcile these pieces of evidence with the requirement for some supervision and direction with activities of daily living. Dr Matias’ evidence does not establish any such requirement.
[92] The term ‘Activities of Daily Living’ is given content by Figure 5-A on page 45 of the approved Guide.
88. Bearing in mind what Spender J said in Comcare v Emery[93] concerning activities of daily living and the phrase ‘some supervision and direction’, albeit in reference to Table 5.1 under the 1st Edition of the approved Guide, to my mind the criteria at the 15 percent level are not presently satisfied. It should be noted that both elements of this criterion must be satisfied at the 15 percent level under Table 5.1 and the words ‘supervision’ and ‘direction’ are given meaning in the notes to this Table.
[93] Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 19 AAR 1 at 4-6.
89. Even though the criteria at the 15 percent level are not satisfied, one must determine whether the criteria at any other level in that Table are satisfied. The criteria that apply to the 5 percent and 10 percent levels have one significant difference: at the 5 percent level only one sub-criterion is required, whereas at the 10 percent level more than one sub-criterion is required. No supervision or assistance is required with activities of daily living at these levels.
90. Dr Matias’ evidence that Mr Vidler’s “reactions to stresses of daily living has led him to modify his living patterns” satisfies one of the sub-criteria that apply at the 5 percent and 10 percent levels. The remaining criteria are:
· lack of conscience directed behaviour without harm to community or self; and
· minor distortions of thinking.
91. On 1 September 2009 Dr Rose reported that “Mr Vidler has minor problems with memory and concentration”[94] and “Mr Vidler, in an obsessional way, appeared to be preoccupied with issues of injustice and what he believed to be right or wrong”[95]. On 6 November 2009 Dr Matias reported that “[Mr Vidler] reported to be doing “strange things” – this is triggered by reminders of work”, “The thought of work made him drink more” and ”He continued to have increased alcohol intake and he continued to display more thoughts of depression and even suicide”[96]. Mr Vidler gave evidence concerning his ongoing ruminations about his previous employer and the manner in which this dominates his thinking – to the extent of going out of his way to avoid people and places that may trigger adverse thoughts and increased distress[97]. This evidence was not seriously challenged. Dr Matias’ clinical notes from March 2010 to January 2011 indicate that Mr Vidler continued to exhibit low mood, anger, increasing depression and “existential angst”, and that in January 2011 he was consuming alcohol at the rate of “1/2 bottle daily”[98]. To my mind, even though the sub-criteria concerning minor distortions of thinking and lack of conscience directed behaviour have not been squarely addressed in the medical evidence, I am reasonably satisfied that these elements of Mr Vidler’s presentation are consistent with minor distortions of thinking or lack of conscience directed behaviour (without harm). It is also probable that these cognitive and behavioural features are attributable to his Adjustment Disorder injury and the resulting permanent impairment.
[94] T103 folio 450.
[95] T103 folio 452.
[96] T105 folio 465.
[97] Oral evidence; T75 folio 360 refers, for example.
[98] Exhibit R2.
92. In consequence, therefore, I am reasonably satisfied that the assessment criteria at the 10 percent level under Table 5.1 are satisfied and that the degree of his permanent impairment as a result of the Adjustment Disorder injury is 10 percent.
93. I note that Mr Vidler’s previously existing Bipolar Affective Disorder lies in the background to his claim. In November 2009 Dr Matias reported that this condition, previously in remission, had relapsed[99]. It is not clear what effect, if any, this relapse had on the presentational and functional features of Mr Vidler’s ongoing Adjustment Disorder injury and resulting impairment. Nor it is clear whether the Adjustment Disorder injury was an operative factor in the relapse. As I have said, Dr Rose is of the opinion that Mr Vidler’s underlying Bipolar Disorder and Social Phobia were aggravated by multiple stressors in 2008. Dr Matias’ more recent evidence is that the Adjustment Disorder, while still present, has “progressed to a Depressive Disorder”[100]. These considerations do not disturb my conclusions concerning the assessment of the degree of Mr Vidler’s injury-related permanent impairment under Table 5.1 of the approved Guide. They appear to be further expression of the unfortunate continuum of disease that was precipitated by injury in circumstances that could have been avoided if Dr Matias’ medical certificates and restrictions had been properly heeded and complied with.
[99] T105 folio 466.
[100] T105 folio 467.
94. Thus, in sum on this point, I am reasonably satisfied that the degree of Mr Vidler’s permanent impairment is 10 percent. It follows that he is entitled to payment of compensation for permanent impairment under section 24 of the SRC Act. That being so, he is also entitled to compensation for non-economic loss under section 27.
95. I am not able, on the present evidence, to properly determine the amount of compensation for permanent impairment and non-economic loss to which Mr Vidler is entitled. Those amounts are to be calculated by Comcare.
conclusion and decision
96. The decision under review is set aside and in place thereof the Tribunal decides that Mr Vidler is entitled to compensation for incapacity and medical treatment in respect of his accepted Adjustment Disorder injury from 20 June 2008 to the present. He is also entitled to compensation for permanent impairment and non-economic loss as a result of that injury.
97. Comcare is to calculate the amounts of compensation to which Mr Vidler is entitled pursuant to this decision.
98. The parties have not been heard in relation to orders for costs pursuant to section 67 of the SRC Act. As the matter is decided in a manner that is favourable to Mr Vidler, I am minded to order Comcare to pay his reasonable costs in these proceedings as agreed or taxed in a manner that is consistent with the Tribunal’s Guidelines to the Compensation Jurisdiction. The parties have 14 days from this date to file written submissions on this point. If no submissions are received orders will be made in the terms I have outlined.
99. Even though these reasons are already lengthy, there is one final matter to address. Mr Vidler asserts that Comcare has not behaved as a model litigant in its dealings with him.
100. From this distance I cannot determine the content of the discussions and negotiations between the parties in the alternative dispute resolution process that gave rise to the Tribunal’s consent decision on 23 December 2009. Nor can I determine Comcare’s rationale for adopting the approach taken, only a few weeks later, in response to Mr Vidler’s consequential claims in respect of permanent impairment and incapacity.
101. Nevertheless, Comcare, being an agent of the Commonwealth, was (and is) required to comply with section 72 of the SRC Act and the Legal Services Directions 2005 under the Judiciary Act 1903 - it is expected to conduct itself as a model litigant, bearing in mind what Griffith CJ said in the oft quoted passage from Melbourne Steamship Co. Ltd v Moorehead concerning “the old fashioned, traditional, and almost instinctive, standard of fair play to be observed by the Crown”[101].
[101] (1912) 15 CLR 333 at 342.
102. While concerns have been raised about the manner in which Mr Vidler’s claims have been dealt with, and it appears that Comcare may have adopted a technical and disaggregated approach, there is no compelling evidence (and it is not established) that Comcare behaved improperly. There is some distance between improper behaviour and exemplary conduct, however. To my mind, adopting a strict or black letter approach may well result in a disaggregated response to the claims of an injured worker in respect of an injury. This may not be the most desirable approach as it may result in delays, technically-based serial disputation and increased costs. To that extent, at least, such an approach may not accord with exemplary conduct or best practice under the remedial compensation scheme the SRC Act provides.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, MemberSigned: ...................[sgd]...........................................................
H. Choi (Associate)Date of Hearing 21 and 22 February 2011
Date of Decision 14 April 2011
Counsel for the Applicant A. Anforth
Solicitor for the Applicant Maurice Blackburn
Counsel for the Respondent M. Gollan
Solicitor for the Respondent Dibbs Barker
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