Waldron and Comcare (Compensation)
[2019] AATA 5455
•18 December 2019
Waldron and Comcare (Compensation) [2019] AATA 5455 (18 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2850
Re:Tony Waldron
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:18 December 2019
Place:Brisbane
The decision under review is affirmed.
........................................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – Where lump sum redemption has been paid under section 30 of the Safety, Rehabilitation and Compensation Act 1988 – Where applicant seeks compensation under section 31 – Whether applicant must be totally incapacitated for suitable employment – Where index injury exacerbated by later employment – Whether compensation payable under section 31 in such circumstances – Decision under review affirmed.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988CASES
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Taylor and Comcare [2005] AATA 366
Waldron and Comcare [1994] AATA 610
Waldron v Comcare (1995) ALD 471REASONS FOR DECISION
Deputy President J Sosso
18 December 2019
INTRODUCTION
Mr Tony Waldron (the Applicant) originally sought a review of two decisions of Comcare which were both made on 4 May 2018, namely:
(a)the first (2018/2850), which declined the Applicant’s present entitlement for incapacity payments under ss 19 and 31 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act); and
(b)the second (2018/2851) which declined the Applicant’s claim for permanent impairment and non-economic loss under ss 24 and 27 of the Act.
On 15 May 2019 a Notice of Withdrawal was filed in relation to 2018/2851. Consequently, the only matter before the Tribunal relates to 2018/2850.
The Applicant was born in 1956 and commenced employment as a full-time Police Officer with the Northern Territory Police on 15 May 1978 – Exhibit 3 paras 1, 3.
The Applicant’s time with the Northern Territory Police was marked by instances of confrontations with members of the public including two instances when the Applicant actually became violent towards members of the public. The full accounts of these events are set out at length by Senior Member Muller in Waldron and Comcare [1994] AATA 610 and by Burchett J in Waldron v Comcare (1995) ALD 471 at 472-473.
Despite the turbulence in the Applicant’s Police career, he steadily rose through the ranks until he was promoted to sergeant on 22 October 1984.
On 14 June 1986, whilst on duty, he was involved in a struggle with a person armed with a gun, a machete and a knife. During the course of the struggle, when the Applicant tried to disarm the person, his service firearm discharged and a bullet penetrated his upper left arm.
On 11 July 1986 Comcare accepted liability to compensation for the gunshot wound to the upper left arm – Exhibit 1 T10 p. 18.
It is not contested that the Applicant developed Post Traumatic Stress Disorder (PTSD) as a result of the 14 June 1986 incident - Applicant’s Statement of Issues, Facts and Contentions (ASIFC) para 4 p. 1, Respondent’s Statement of Issues, Facts & Contentions (RSIFC para 3.1.1).
On 15 February 1989 Comcare accepted responsibility to pay compensation in respect of the Applicant’s PTSD condition and he received weekly compensation payments – Exhibit 1 T15 p. 25.
Subsequently, and after protracted litigation, the Applicant and Comcare entered into terms of agreement whereby Comcare agreed to pay an amount of weekly compensation for incapacity pursuant to s 19, a redemption payment pursuant to s 30 and an amount of compensation for physical and psychiatric impairment – Exhibit 1 T32 pp. 127 – 128.
On 6 December 1995 Comcare reduced the Applicant’s weekly compensation payments made pursuant s 19 to $65.99 per week and redeemed that entitlement pursuant to s 30 by the payment of a lump sum of $60,436.62 – Exhibit 1 T34 pp. 131 – 132. As Comcare notes (RSIFC para 3.1.3) the weekly amount of $65.99 that was redeemed represented the statutory rate which was in force under s 301(1) at the time the Determination was made.
Comcare continued to pay for the Applicant’s PTSD treatment as and when it was required – ASFIC para 11 p. 2.
After leaving the Northern Territory Police the Applicant was engaged in a number of positions as well as being unemployed for various periods of time. In a Statement of 30 March 2018, the Applicant stated that he had been employed in the following positions – Exhibit 1 T60 p. 251:
(a)Project Manager;
(b)Tour boat skipper;
(c)Small business operator (dive/fishing charter);
(d)Hardware shop salesperson;
(e)Skipper; and
(f)Port Control Officer.
In another statement prepared in circa 2017 the Applicant added other manual employment including “shovelling rhinoceros shit out of holding compounds at a quarantine station, gardening…” – Exhibit 2 p. 124.
However, of most significance, the Applicant was employed as a Civil Project Officer with the Northern Territory Department of Infrastructure Planning & Logistics (DIPL) on a full-time basis between 2007 – 2017.
On 31 July 2017 the Applicant ceased working for the Northern Territory Government and asserted an incapacity to work as a result of a psychological injury – ASIFC para 15 p. 3.
The Applicant subsequently sought a resumption of his weekly Comcare compensation for incapacity.
The Applicant also made a claim for compensation pursuant to the Northern Territory Workers’ Compensation Scheme. In his undated Northern Territory Claim Form, the Applicant provided the following information – Exhibit 1 T45 p. 165:
“On the morning of the 14th June 1986, I was a NT Police Sergeant on General Duties in Katherine when I attended a complaint of a man indecently dealing with female children. In the process of arresting the offender I was shot in the left arm sustaining serious injuries. As a result of this incident I suffer from Post Traumatic Stress Disorder which in turn caused me to resign from the Police Force for the sake of my health.
In 2007 I got a job as a Project Officer with the NTG Department of Infrastructure Planning & Logistics in the Civil Division. This job has caused my mental health to deteriorate by exacerbating my PTSD condition.”
In addition to the Claim Form, the Applicant, in a lengthy statement, set out his version of events whilst working at the DIPL. The Statement contains a detailed account of the Applicant’s unhappiness with the manner DIPL was managed, the poor attitude of some of his work colleagues, alleged malpractice and instances of bullying. In essence, the Applicant claims that this alleged toxic workplace had an ongoing deleterious impact on his health and exacerbated his PTSD. The following extracts are illustrative of this – Exhibit 2 pp. 125 – 126:
“I soon realized my mental health was declining so I sought the help of a psychiatrist. Having suffered from PTSD for nearly 20 years I was able to recognise when I am on a downward turn. As a result of the workplace I was suffering from, amongst other things, twitches in the face, tremors, especially in my hands and stomach, nervousness, anxiety and depression…
As time progressed, things got worse. I was taking my troubles home which caused disruption with my home life. I would go home in a bad mood and whinge about work. I had difficulty relaxing and was suffering with insomnia. One day I went for my morning jog and ended up in a fight with another person. Police were called and I was threatened with arrest. I was on edge and had a short fuse…
I had fall-outs with two Procurement Directors and on one occasion I was so distraught I left work and went home sick. I was reprimanded by my Director on both occasions and he would not listen to my point of view. On one occasion I faced prosecution from the Department’s Chief Executive for conduct unbecoming of a public officer but received a reprimand from him instead. These incidents affected my health greatly.
I had numerous arguments with another senior procurement officer whom was pushing the party line rather than enforcing established procurement processes and rules. She caused me lots of anguish…
I was suffering from many symptoms of PTSD. My depression got so bad I was having regular thoughts of suicide. Amongst other things, I had difficulty sleeping, I was depressed and in pain…
Because of work my anxiety got out of control and I suffered a couple of horrifying incidents with phobias. I had a severe anxiety attack on holidays whilst driving though the tunnels under Sydney Harbour and had attacks of claustrophobia so bad that I could not board a plane. Later, back at work at Highway House I could no ride in the elevator for several weeks because of anxiety attacks and had to use the stairs.
My attitude got very negative because of the feeling of my workplace. At home I talked negatively about work and envied my wife for having an occupation she liked…
There are many incidents that have occurred in the workplace that have impacted on my PTSD. I cannot recall them all as I did not record them. I have been at many meetings where I have been unable to talk because my hands have been trembling and my voice has gone strange. I have had severe headaches that last for days brought on by a workplace incident. Some days I develop a headache on the way to work from the thought of the day ahead…”
In 2015 the Applicant and his wife separated and were officially divorced in December 2017. In his Statement of 30 March 2018, the Applicant blamed his workplace experiences at DIPL for this situation – Exhibit 1 T60 p. 249:
“My divorce occurred as a direct result of the DIPL workplace exacerbating the symptoms of my PTSD. Cathy left me because my symptoms got too much for her to bare. She had been able to cope previously but it got too much for her…”
At the request of Comcare, the Applicant was examined and assessed on 11 January 2018 by Dr Riccardo Caniato, Psychiatrist. In his report of 23 January 2018, Dr Caniato diagnosed the Applicant as suffering from PTSD with “reasonably chronic symptoms since the index injury. He describes some reduction in the core symptoms of Post-Traumatic Stress Disorder including nightmares and anxiety” – Exhibit 1 T52 p. 221. In addition, Dr Caniato noted a previous diagnosis of personality disorder, but had insufficient information to confirm the diagnosis – Exhibit 1 T52 p. 222.
Dr Caniato opined that the Applicant’s PTSD was relatively stationary, and may have even improved – Exhibit 1 T52 p. 222:
“Mr Waldron does not describe any intense reliving experiences. In comparing his current symptoms to early assessments it appears that there has been some improvement of his symptoms. It appears they have been stable and stationary for the last few years.
It does appear that there have been some more recent stressors with his relationship stressor breakup and his issues at work.”
In response to a Question as to the prognosis of the Applicant’s psychiatric condition, Dr Caniato opined – Exhibit 1 T52 p. 222:
“Mr Waldron’s condition has been reasonably chronic but he has been able to function at an acceptable level. He has been able to maintain employment and have a reasonably good quality of life with ongoing long term psychiatric management. The prognosis is that the condition will likely continue for the foreseeable future.”
Dr Caniato agreed that the Applicant’s psychiatric condition was related to the firearm incident of 14 June 1986 but was also related to other factors including “work stressors in his job in the Northern Territory and a relationship breakup and movement from the Northern Territory to Cairns” – Exhibit 1 T52 p. 222.
Apart from a possible vulnerability or personality disorder, Dr Caniato opined that the Applicant suffered from no other health issues. He also opined that the treatment for the Applicant’s PTSD would “likely be indefinite”. Despite this, Dr Caniato was of the view that the Applicant was currently fit to engage in work, but noted his dissatisfaction with his Northern Territory employer and suggested retraining, part-time work or even early retirement – Exhibit 1 T52 p. 223. As to the type of duties the Applicant was medically fit to undertake, Dr Caniato opined as follows – Exhibit 1 T52 p. 224:
“The type of work Mr Waldron can perform has not changed. He remains able to partake in the sort of employment that he has engaged in over the last twenty years or so.
In regards to what type of work would be most appropriate for him input from an Occupational Therapist might be appropriate if it is considered that looking at new work is appropriate.
In regards to the number of hours per week I would leave that to his discretion. It may be appropriate for him now to look at reduced hours or even think about the possibility of early retirement.”
Finally, Dr Caniato opined that the Applicant suffered from a permanent impairment. He said: “I consider however that he does suffer from impairment. It will likely be indefinite. It is stable” – Exhibit 1 T52 p. 224. Dr Caniato opined that the PTSD condition was chronic and could not be further improved and, referring to Table 5.1 of the Guide, suggested an impairment of 10% as the Applicant is able to perform activities independently and does not require supervision for activities of daily living – Exhibit 1 T52 p. 225.
In 2011, the Applicant was referred by his then General Practitioner to Dr Petros Markou, Psychiatrist. Dr Markou has been treating the Applicant on a fairly regular basis since that time. Dr Markou provided a report dated 16 January 2018 – Exhibit 1 T50 pp. 196 – 198.
In his report, Dr Markou opined that the Applicant suffers from PTSD which arose from the firearm incident and he outlined the symptoms the Applicant experiences, including repeated flashbacks, distressing nightmares, onset of worsened anxiety when exposed to triggers that remind him of events and a generalised state of tension in everyday life – Exhibit 1 T50 p. 197.
Dr Markou opined that the Applicant’s current symptoms (Exhibit 1 T50 p. 198):
“represent an aggravation/exacerbation of a pre-existing condition.”
In addition, Dr Markou opined that while the Applicant will experience some amelioration of his symptoms “he will continue to experience symptoms permanently. He is not fit to return to work and I do not anticipate any return to work in future” – Exhibit 1 T50 p. 198.
The Applicant was also examined and assessed by Dr Saddichha Sahoo, Psychiatrist on 19 January 2018 and he provided a report dated 22 January 2019 – Exhibit 1 T51 pp. 199 – 212.
Dr Sahoo diagnosed the Applicant as suffering from PTSD along with Unspecified Anxiety Disorder – Exhibit 1 T51 p. 204.
In addition Dr Sahoo opined that there were no non-work factors contributing to his condition – Exhibit 1 T51 p. 207:
“I also do not find that there are any non-work related factors that have contributed to Mr Waldron’s condition because I find his condition to be quite stable right now. This is also corroborated by his treating psychiatrist’s letter which indicates that he has now reached total stability of his symptoms.”
Dr Sahoo also discounted the impact of workplace incidents when assessing the Applicant’s condition – Exhibit 1 T51 p. 202:
“When asked about the duration of symptoms, he said that the symptoms have been there for the last several years and some of the symptoms have improved and some of the symptoms have worsened. However, on the whole, it appears that symptoms have stabilised and there doesn’t seem to have been any recent deterioration in the last two to three years. This is also corroborated by the recent report by his treating Psychiatrist. Further, the incidents that he describes at his workplace appear more to be inter-personal conflicts and do not amount to contributing in any manner.”
Accordingly, Dr Sahoo opined that the Applicant had not suffered a work-related injury on or about 31 July 2017 – Exhibit 1 T51 p. 207.
Unlike Dr Markou, Dr Sahoo opined that the Applicant “should be able to return to his pre-injury duties and this should occur within the next three to six months.” However, he then qualified this opinion as follows: “he will only be able to work in a partial role rather than a fulltime role, primarily because most of his symptoms have reached stability.” Consequently, Dr Sahoo was of the view that the Applicant could only work part-time up to 20 hours per week – Exhibit 1 T51 pp. 207 – 208.
On 2 February 2018, Mr Alan Bradley, Comcare Delegate, determined that Comcare had no present liability for incapacity payments under s 19 of the Act – Exhibit 1 T54 pp. 232 – 233.
In rejecting the Applicant’s claim, Mr Bradley gave the following reasons – Exhibit 1 T54 p. 233:
·“In 1995 you were paid a lump sum redemption of her incapacity benefits under Section 30 of the SRC Act. You can claim further incapacity payments for under section 31 of the SRC Act if your level of incapacity increases after the redemption payment is made. Under section 31 of the SRC Act the following conditions must be met for a resumption of payments:
oThe employee’s incapacity results in them being unable to engage in suitable employment; and
oThe incapacity is likely to continue indefinitely.
·Dr Caniato stated in his report: ‘Mr Waldron is currently fit to engage in work. It is noted that there re [sic] work issues and work dissatisfaction. He would likely now need to look at alternative employment. This may present a challenge. Consideration may be given to part time work or even considering early retirement.’
·The report of Dr Saddichha Sahoo stated: ‘I believe that Mr Waldron will always continue to have difficulties working in an environment where he has to interact with others, primarily because of the low grade of symptoms of posttraumatic stress disorder that he continues to experience.’
·The report of Dr Petros Markou stated: ‘He is not fit to work and I do not anticipate any return to work in future.’
·Evaluating the available medical information, I am not satisfied that your incapacity results in you being unable to engage in suitable employment, on an indefinite basis.”
On the same day Mr Bradley decided that Comcare was not liable to pay compensation to the Applicant in respect of a psychiatric condition under s 24 of the Act.
Mr Bradley referred to s 25(4) of the Act, which provides that where Comcare has made a final assessment of the degree of permanent impairment, no further lump sum compensation is payable unless there has been an increase in the level of permanent impairment of 10% or greater. Reference was also made to the assessment of Dr Caniato outlined above and Mr Bradley concluded that there had been no increase in the level of impairment.
Consequently Mr Bradley decided that there was no liability for Comcare to pay compensation for additional permanent impairment either under s 24 or s 27 of the Act.
The Applicant, first, requested an independent review of the determination declining his entitlement for incapacity payments under ss 19 and 31.
In a decision of 4 May 2018, Ms Jennifer Waterhouse, Senior Review Officer affirmed the earlier Determination. In reaching this conclusion, Ms Waterhouse summarised the various conclusions of Drs Markou, Sahoo and Caniato. Ms Waterhouse then said – Exhibit 1 T62 pp. 263 – 264:
“The above evidence does not demonstrate that have an incapacity for employment which is likely to continue indefinitely, with both Associate Professor Sahoo and Dr Caniato foreseeing that you will be able to return to suitable employment, albeit working reduced hours, at some future point.
The evidence suggests that while you may have difficulties interacting with other people you have been able to maintain your employment with NT Govt for almost 10 years on a full time basis. It was not until issues within this employment, which prompted an exacerbation of your condition and which you claimed was caused by your employment at NT Govt, occurred that you became unfit. This is further supported by the current restriction on returning to employment to NT Govt and the evidence of Associate Professor Sahoo, Dr Caniato and even Dr Markou who reported on his medical certificates that your incapacity was related to your NT Govt employment.
Even if the evidence supported your contention that you are incapacitated indefinitely, it is clear that there have been issued [sic] within your employment as a Project Officer with the NT Govt and these issues caused an exacerbation of the previously stable condition. Your current incapacity is caused by the exacerbation and not as a result of the accepted condition acknowledging that you are still experiencing some effects of this condition.”
The Applicant also sought a review of the decision declining his claim for permanent impairment and non-economic loss. In a decision also of 4 May 2018, Ms Waterhouse affirmed the Determination under review.
Ms Waterhouse noted that the Applicant previously received an award for 10% whole person impairment (WPI) for his psychological impairment, and if further compensation is to be payable, there must be evidence that he has sustained permanent WPI of 20% or greater Exhibit 1 T63 p. 267.
Whilst there was medical consensus that the Applicant suffers from PTSD, Ms Waterhouse stated that the evidence did not support the proposition that the Applicant had a 20% WPI as a result of any psychological impairment, compensable or otherwise – Exhibit 1 T63 p. 267.
Subsequent to the commencement of review proceedings in the Tribunal further medical reports were prepared.
First, the legal representatives for the Applicant sought a report from Dr Mary Ellen O’Hare, Psychiatrist. Dr O’Hare examined and assessed the Applicant on 20 August 2018 and prepared a detailed report dated 5 September 2018 – Exhibit 2 pp. 9 – 34.
Dr O’Hare provided the following diagnosis of the Applicant – Exhibit 2 p. 27:
“It is my professional opinion, held to a reasonable degree of medical certainty that he is suffering from
1.Post Traumatic stress disorder, in partial remission, since original diagnosis 1986 – 1995 when he left the police force, exacerbated again in 2017,now chronic and disabling.
2.Major depressive disorder, in remission, original diagnosis 1987, episodic throughout 1987-1997, episode in 2017, now in remission.
3.Alcohol Use Disorder in remission. Original diagnosis in 1986-1995. Intermittent episodes of sickness since then.
Mr Waldron has obsessional and narcissistic personality traits and a strong moral compass and sense of vigilante justice. These do not meet the criteria for personality disorder but help to explain his persistence despite years of symptoms in the police force and later in the NT Government for a further 10 years.”
Dr O’Hare’s report provides a considered and detailed analysis of the Applicant’s mental health history.
Dr O’Hare opined that the Applicant presented with a history of PTSD and major depressive disorder since the 1986 firearm incident. She also observed – Exhibit 2 p. 28:
“He went on to be employed in the NT Govt in another role for a further 10 years until ongoing PTSD symptoms exacerbated by stressors in the new workplace replayed the stressors of the original injury and rendered him unable to work from 31 July 2017.”
Dr O’Hare opined that the Applicant is predisposed to psychiatric illness by virtue of biological risks. It was noted that the Applicant had a strong moral compass with a rigid adherence to rules which resulted in him finding himself in conflict with work peers who he perceived were less principled. Dr O’Hare was of the view that the Applicant’s strengths had been exhausted in a setting of 30 years chronic PTSD and “his ability to adhere to the requirements of a workplace is now spent” – Exhibit 2 pp. 29 – 30.
The Applicant, in Dr O’Hare’s opinion, has chronic symptoms which appear to have stabilised. She opined that perpetuating factors that have led to continuing symptoms included – Exhibit 2 p. 30:
“the limited treatment he received early in the course of his disease, his failure to link the vulnerabilities of his genetics and early life to his risk for chronic psychiatric disturbance and his inadvertent ongoing exposure to triggers and stressors which have perpetuated symptoms.”
In addition, Dr O’Hare opined that the Applicant is unable to engage in employment – Exhibit 2 p. 30.
Finally, Dr O’Hare opined that the Applicant’s employment with DIPL played a role in worsening his symptoms – Exhibit 2 p. 32.
A supplementary report dated 9 November 2018 was obtained from Dr Caniato. Dr Caniato was briefed with additional material, namely:
(a)Psychiatric notes from Dr Markou;
(b)Clinical notes from Territory Medical;
(c)Historical health records for the Applicant from the Northern Territory Department of Health and Cooktown Medical Centre; and
(d)The report of Dr O’Hare discussed above.
Dr Caniato dealt in some detail with the clinical notes of Dr Markou dating from 2011. From reviewing the notes Dr Caniato was unable to find reference to any incidents or issues that might be considered to constitute a work-related injury, and was unable to find any references in 2017 to any work injury. Further, he was “unable to see any change in his impairment or functioning” – Exhibit 2 p. 52.
The conclusion reached by Dr Caniato after reviewing all of the extra briefed material was as follows – Exhibit 2 p. 55:
“I consider the primary diagnosis of Post-Traumatic Stress Disorder chronic and there is no workplace exacerbation or worsening attributed to any incidents with his employment with the Department of Infrastructure, Planning and Logistics. I consider that Mr Waldron’s level of impairment remains at 10% and is unchanged.” (emphasis in original)
Dr Caniato opined that the extra briefed material did not (Exhibit 2 p. 55):
“support the contention that there was a work related injury associated with his employment with the Department of Infrastructure Planning and Logistics. The collateral notes do not indicate there has been a change in impairment attributed to his work with the Department of Infrastructure Planning and Logistics.”
Instead, Dr Caniato was of the opinion that the extra briefed material drew attention to the presence in the Applicant of possible personality dysfunction. Dr Caniato noted the assessment of O’Hare of narcissistic and obsessive personality traits and entries of Dr Markou referring to possible personal issues and dysfunctions – Exhibit 2 pp. 55 – 56.
In short, Dr Caniato, formed the view that the Applicant continued to suffer from PTSD dating back to 1986 and that there had been no aggravation or exacerbation of that condition whilst the Applicant was employed by DIPL – Exhibit 2 p. 56.
ISSUES
The Tribunal agrees with Comcare that the issues in the contention can be expressed as follows:
(a)Did the Applicant’s accepted conditions result in the Applicant being incapacitated for work to the extent that he is not able to engage in suitable employment within the meaning of s 31 of the Act?
(b)If so, is that incapacity likely to continue indefinitely?
(c)Should the reviewable decision of 4 May 2018 be affirmed?
THE HEARING
A Hearing was convened in Brisbane on 18 September 2019 and concluded on 20 September 2019. The Applicant appeared in person and was represented by Mr Littlejohn of Counsel. Comcare was represented by Mr Berger.
Dr Markou, Dr O’Hare, and Dr Sahoo were called to give evidence by the Applicant.
Dr Caniato was called to give evidence on behalf of Comcare.
PROPER INTERPRETATION OF SECTION 31
At the heart of the legal dispute in this matter is the proper interpretation of s 31 of the Act.
It is self-evident when construing s 31 that it is necessary that the interpretation given is consistent with the text of the provision and the context in which that provision appears – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [690].
It is important, then, to first consider the operation of s 30 which deals with redemption of compensation.
When Comcare is liable to make weekly compensation payments under ss 19, 20, 21 or 21A to an employee in respect of an injury resulting in incapacity for an amount of (currently, indexed by virtue of s 13 of the Act) $118.37 per week or less it is mandatory in some circumstances for a lump sum payment to be made.
The reference in s 30 to an injury resulting in an incapacity, needs to be read in conjunction with s 4(9) which provides:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
As will be seen the incapacity referred to in s 30 can be a total incapacity (s 4(9)(a)) or a partial incapacity (s 4(9)(b)).
Next, s 30(1)(c) requires Comcare to be satisfied that the employee’s incapacity is unlikely to change.
The amount of the lump sum paid is calculated in accordance with a formula which is contained in s 30(2).
When a lump sum payment is made pursuant to s 30, no further compensation for incapacity is paid to an employee under ss 19, 20, 21 or 21A in respect of that injury unless the requirements of s 31 are met.
Mr Berger assisted the Tribunal with a document he provided entitled Respondent’s Written Submission on the Interpretation of s 31 of the SRC Act (RWS).
Mr Berger submitted (RWS para 5), and the Tribunal agrees, that ss 30 and 31 evince an intention to avoid the administrative burdens and costs, for both Comcare and employees, that would be associated with the long-term payment of modest amounts of compensation that are likely to be disproportionate to the compensation in question.
Section 31 provides for recurrent payments after the payment of a lump sum under s 30. Accordingly, s 31 deals with circumstances confronting an employee at a time after that employee has been paid a lump sum under s 30.
Subsection 30(1) contains three elements:
(a)the compensable injury results in the employee being incapacitated for work;
(b)to the extent that the employee is not able to engage in suitable employment; and
(c)the incapacity is likely to continue indefinitely.
The term “suitable employment” is defined in s 4(1) as follows:
“suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed – employment by the Commonwealth or the licensed corporation, as the case may be for which the employee is suited having regard to:
(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place or residence – whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter…”
Mr Littlejohn also assisted the Tribunal by the provision of a document entitled Applicant’s Written Submissions (AWS). He focused on the words “results in” in s 31(1)(a) and made the following submission (AWS para 5):
“There is no requirement within section 31 for the compensable condition to be the sole or even primary cause. Nor does the relevant provision require any significant contribution from the Post Traumatic Stress Disorder. It is enough that the injury is one of the ongoing factors causing the incapacity. The applicant must only show that his Post Traumatic Stress Disorder is an operative cause of any incapacity suffered. To apply the standard of ‘significant contribution’ or similar would be to apply an impermissible gloss to the otherwise plain words of the section.”
The Tribunal is unable to accept this interpretation of s 31.
As previously discussed, it is essential to view the operation of s 31 in the broader context of the operation of the Act. The clear policy underpinning ss 30 and 31 is simply this. When Comcare has accepted responsibility to pay compensation to an employee for an injury and is satisfied that the degree of incapacity is unlikely to change then a lump sum payment shall be made when the recurrent compensation payments are relatively small. This has, as Mr Berger submitted, the advantage of reducing ongoing administrative costs for Comcare while at the same time ensuring that an employee who is receiving small sums of money gets the benefit of a “one-off” sizeable payment.
Viewed from that perspective, s 31 is clearly aimed at dealing with a situation when an employee’s injury has worsened. The extent of the incapacitation is dealt with below. However, it would make no sense if the cause of the worsening of the injury was substantially divorced from the original compensable injury.
Mr Littlejohn’s submission, with due respect, starts from an incorrect premise. The starting point for the payment of compensation under s 31 is that the employee continues to suffer from the compensable injury. The focus on a decision-maker then is twofold: first, the cause of the worsening of the ailment and second, the nature of the worsening.
If the worsening of the ailment is not related back to the index injury but is produced by a new cause or causes, then compensation is not payable. In short the question is whether there has been an intervening new act that has exacerbated the underlying injury, or, perhaps, resulted in a further mental ailment. Of course these are matters of degree, and it may be that the original condition has been steadily worsening and a minor trigger has activated what would have occurred in due course. In such a case, prima facie, compensation is payable under s 31. It is not sensible to try and speculate about the plethora of scenarios that are possible. However, it is critical to recognise that the worsening of the condition, for the purposes of s 31, must have its genesis in the index injury and its natural progression. The Tribunal rejects the proposition that as long as an index injury is still the operative cause of the incapacity the requirements of s 31 are met.
To advance a submission that compensation is payable under s 31 in the present case simply because the Applicant’s PTSD has become worse per se would lead to unfair and potentially ludicrous results. If supervening events that have resulted in the exacerbation of the PTSD have no relation to the Applicant’s Northern Territory Police employment then s 31 is not enlivened. There must be an ongoing causal link between the worsening of the condition and the causes of the original injury. If it were otherwise, then Comcare would be liable to pay compensation under s 31 no matter what caused the worsening of the Applicant’s condition. That, with due respect, is an interpretation that cannot be sustained and would be productive of potential “double-dipping”. The interpretation advanced by Mr Littlejohn leaves open the possibility of an employee commencing proceedings against both Comcare and a subsequent employer or employers for the same condition. An interpretation which advanced that course of action carries with it a range of deleterious outcomes and would be potentially subversive of the workers’ compensation regime.
The Tribunal’s attention, however, is directed to the phrase in s 31(1)(a) “the injury results in the employee being incapacitated for work to the extent that the employee is not able to engage in suitable employment”.
As Mr Berger correctly submitted (RWS para 6) there are a number of possible constructions that are open to the Tribunal. It is also the case that the only time this matter has been considered by the Tribunal is Taylor and Comcare [2005] AATA 366 (Taylor), a decision of Senior Member McDermott (as he then was).
The question to be determined in Taylor was whether an applicant must be totally incapacitated for suitable employment in order to satisfy the requirements of s 31(1)(a) of the Act – Taylor at [2].
Senior Member McDermott made the following observations:
“17. There is, in my opinion, no warrant for reading into s 31(1)(a) any requirement that the employee must be ‘totally incapacitated for work’. If that was the intention of Parliament then Parliament could have used the language of s 50 of the Compensation (Commonwealth Employees) Act 1971 which refers to the employee ‘being totally incapacitated for work’.
18. The Act in referring in s 31(1)(a) to ‘suitable employment’ is using a quite different test which requires the consideration of those matters in the definition of ‘suitable employment’ in s 4.
19. I also make the observation that s 31(1)(a) in referring to ‘the employee being incapacitated for work to the extent that the employee is not able to engage in suitable employment’ is not apt to refer to a situation where the employee is not capable of being employed at all. Rather the use of the phrase ‘to the extent’ is not appropriate to refer to a case of total incapacity for work.
20. The applicant also points to the fact that s 31(1) enables a payment to be made ‘during the period of the incapacity’. The applicant has submitted that this does not contemplate total incapacity and/or permanent incapacity.”
Senior Member McDermott also referred to s 4(9) and noted that while s 4(9)(a) was apposite when there was a total incapacity for work, s4(9)(b) was not, and observed:
“24. The reference in this definition in s 4(9)(b) to ‘an incapacity to engage in work at the same level’ is, in my opinion, not referring to a situation where an employee is in a situation of total incapacity for work…
25. Because of the definition in s 4(9)(b) I am of the opinion that the reference in this definition to ‘an incapacity to engage in work at the same level’ is applicable to the reference in s 31(1)(a) to ‘the employee being incapacitated for work’.
26. I accordingly consider that an applicant does not have to be totally incapacitated for suitable employment in order to satisfy the requirements of s 31(1)(a) of the Act,”
Both Mr Littlejohn (AWS para 10) and Mr Berger (RWS para 8) submit that the Tribunal should follow Taylor and find that an applicant does not have to be totally incapacitated for suitable employment in order to satisfy the requirements of s 31(1)(a). Mr Berger, in addition, outlined six cogent reasons for adopting Taylor. The Tribunal sees no reason to adopt a different approach to Senior Member McDermott who clearly explained in the reasons quoted above why this is the preferable approach.
There are at least three good reasons to adopt this approach.
First, as was explained in Taylor, the predecessor to s 31 was s 50 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required an employee to be “totally incapacitated for work”. If the framers of the Act intended to retain this high threshold then it was plainly open to them to use the terminology of the 1971 Act. The fact that it was abandoned suggests that the framers of the Act intended to give it a more beneficial operation for injured workers.
Second, s 4(9) of the Act, which is the governing definition provision for “incapacity suffered by an employee”, has been specifically drafted to cover both total and partial incapacity. There is no obvious reason why this should not also flow on to the interpretation of “incapacitated for work” in s 31(1).
Third, the insertion of the phrase “to the extent that” before “suitable employment” in s 31(1)(a) is more suggestive of the subsection applying to partial incapacity for employment rather than total incapacity.
Having determined that a total incapacity interpretation is inapposite, two alternative interpretations are open:
(a)incapacity for work to the extent that the employee is not able to engage in suitable employment at the same level they were when a lump sum was paid to them under s 30; or
(b)incapacity for work to the extent the employee is not able to fully engage in suitable employment (i.e. the employee is partially incapacitated for suitable employment regardless of whether their incapacity has increased since they were paid a lump sum pursuant to s 30 or not).
It appears to the Tribunal that the preferable interpretation is (a). The evident purpose of s 31 is to provide a safety net for an employee who, having received a lump sum payout under s 30, is rendered by the compensable injury unable to engage in suitable employment at the same level. Section 30 contemplates that an injured worker has a condition that is “unlikely to change”. In short, at the time of the lump sum payment the injury has not resolved and is likely to continue into the future. Section 31 contemplates the all too common situation that with the passage of time the underlying ailment worsens, and, as a result, the employee’s work capacity is diminished. In those circumstances the policy underpinning s 31 is that the employee should not be precluded from further compensation when there has been a deterioration in the employee’s work capacity.
The alternative interpretation is not consistent with the operation of ss 30 and 31 and could result in Comcare being required to make payments, as Mr Berger submitted (RWS para 7), every time an employee received a minor pay rise. The Tribunal agrees with the thrust of Mr Berger’s submissions as outlined in RWS para 7.
CONSIDERATION
Introduction
It is not contested, as previously mentioned, that the Applicant continues to be afflicted by PTSD which was brought about by his employment with the Northern Territory Police.
The Tribunal agrees with Mr Littlejohn’s submission (AWS para 6.1) that the evidence supports the proposition that the symptoms of PTSD have never ceased and continue to impact on the Applicant’s capacity in the workplace.
Mr Littlejohn (AWS para 6.2) drew the Tribunal’s attention to the 9 January 2013, 19 March 2016 and 16 January 2018 reports of Dr Markou where he opined that the Applicant was continuing to suffer from the symptoms of PTSD. As will be evident from the discussion below, the Tribunal was impressed with the evidence of Dr Markou, notes that as he has been treating the Applicant over a long period of time, and notes he is in a unique position to provide professional evidence on how his mental health has changed with the passage of time.
Mr Littlejohn (RWS 6.3) also drew the Tribunal’s attention to the report of Dr O’Hare and her oral evidence of 18 September 2019 where she also opined that the index (1986) injury continues to contribute to the Applicant’s incapacity and how those symptoms have been reactivated and replayed throughout the Applicant’s subsequent employment.
The starting point in this matter is that the Applicant continues to suffer from the symptoms of his employment-caused PTSD. The lump sum payout provided to the Applicant was predicated on the assumption that his PTSD was not a temporary phenomenon but an ailment that would continue to afflict him, possibly for the remaining days of his life. The fact that the Applicant continues to suffer from the symptoms of PTSD is, then, not surprising when viewed from the prism of Comcare having determined to make a lump sum payout on that very assumption.
In his summing up, Mr Berger made the following submission – Transcript (Tr. 20 September 2019 p. 31:
“The question we say for the Deputy President is: has that level of incapacity worsened not because of matters related to the DIPL or marriage breakups or anything but has it worsened simply because of or has it resulted from the index injury? If the index injury has led to a worsening in the level of incapacity the terms of section 31 are met. If the index injury has not resulted in an increased level of incapacity, then we submit it’s not.”
The Tribunal agrees with Mr Berger’s summation of the task required for the resolution of this matter.
Mr Berger then submitted (Tr. 20 September p. 32) that the issues that the Tribunal had to resolve were as follows:
(a)has there been a worsening of the Applicant’s incapacity since 1995?;
(b)if yes, what is the cause of the worsening?;
(c)is the Applicant not able to engage in suitable employment?; and
(d)is the worsening of the incapacity likely to continue indefinitely?
Again, the Tribunal agrees with Mr Berger’s summation of the issues requiring resolution.
Before dealing with those issues it is appropriate to deal with one matter. The Tribunal had the benefit of observing and listening to the Applicant giving evidence. The Tribunal found the Applicant to be a straightforward person who answered the many difficult questions asked of him by Mr Berger directly and without unnecessary adornment. In this regard, Mr Berger made the following comments in his closing address, with which the Tribunal agrees – Tr. 20 September 32:
“The applicant, we contend, was very frank and forthright and we make no submissions at all that he wasn’t a credible witness. He’s to be commended for the frank and forthright manner in which he gave his evidence. "
Has there been a worsening in the Applicant’s incapacity
Introduction
The Tribunal has before it conflicting opinions on this threshold question.
Medical Evidence
Dr Caniato was strongly of the opinion that the Applicant’s condition was chronic, that there had been no workplace exacerbations of his underlying PTSD condition and that his level of impairment was unchanged – Exhibit 2 p. 55.
Basically, Dr Caniato was of the view that the Applicant’s PTSD had an ongoing predisposition brought about by personality vulnerabilities. Dr Caniato opined that the Applicant’ underlying condition was contributed to by non-workplace factors, including personality problems, childhood trauma, marital breakdown and the death of the Applicant’s mother – Exhibit 2 pp. 56 – 57.
In his report of 23 January 2018, Dr Caniato opined that although the Applicant’s condition was chronic he had been able to function at an acceptable level – Exhibit 1 T52 p. 222. When asked by Mr Berger what being able to function at an acceptable level meant, Dr Caniato provided the following answer – Tr. 20 September 2019 p. 6:
“For functioning we usually look at a number of aspects that includes work functioning, interpersonal functioning, activities of daily living, financial functioning. So he’s been able to hold down a relationship, he’s been independent of activities of daily living. So he can function independently, he does his own banking, he does his own shopping and finances, so he’s independent financially and in activities of daily living. He’s independent in social activities. So he’s no ended up in hospital, he’s not ended up in prison so from a functional point of view, in terms of how he functions, it would seem to be an acceptable level of functioning, but keeping in mind ‘acceptable’ obviously is a value judgment. But I would perhaps word it that there’s a reasonable level of functioning without obvious impairment, that would probably be better wording.”
Dr Caniato was also questioned about the observation in his supplementary report that when reviewing Dr Markou’s notes he was unable to see any change in the Applicant’s impairment or functioning. The following evidence was given by Dr Caniato – Tr. 20 September 2019 p. 7:
“Well, let’s say in terms of impairment or functioning from the post-traumatic disorder what we’d look for is the progress of the symptoms. So when one is doing treatment for PTSD one would document the symptoms of PTSD at intervals and then be able to measure whether the symptoms are – you know, how well the symptoms are improving, so how quickly are the – are the flashbacks reducing, how’s the avoidance, how’s the hyperarousal, all the core symptoms and they can be measured in a number of different ways. So in my view of the notes I didn’t see any change in the post-traumatic stress disorder symptoms or any change in the impairment. But keep in mind on re-reading the notes again I’m not really sure that there was any focus on treating the post-traumatic stress disorder symptoms. But certainly I could see no changes in those symptoms, no changes in the severity of those symptoms and no changes in the effect on his functioning from those symptoms.”
Dr Sahoo also testified that the Applicant had not suffered any exacerbation in his PTSD in the last three years and that his employment at the DIPL had not worsened his condition.
Mr Littlejohn drew Dr Sahoo’s attention to his report wherein he had opined that the DIPL workplace incidents appeared to be no more than interpersonal conflicts which did not amount to a contribution in any manner. Dr Sahoo gave the following evidence – Tr. 19 September 2019 p. 4:
“Now, these are more of an interpersonal conflict about – with his work colleagues. To be a stressor that re-traumatises himself that – this needs to be of a level that kind of replaces the stress as the original injury. So, none of the incidents that he described at that time, which is, you know, in January 2018, appear to be of any such – so there was no description either in his interview or from the notes provided that pointed to any significant event that replayed those stressors.”
Later, when being questioned by Mr Berger, Dr Sahoo said – Tr. 19 September 2019 p. 8:
“So I have reported what he continues to suffer from. So post-traumatic stress disorder is a conglomeration of symptoms, you know there are about seven or eight symptoms that a person can reasonably experience. When I meant stability, I mean that some of his symptoms have kind of remitted. Some of the symptoms are ongoing but none of these symptoms have shown an exacerbation. So in that sense, even though they are present, they have become stable. So they are a matter of clinical significance but I did not note any recent exacerbation of these symptoms over the last two or three years, which is corroborated by the report by his treating psychiatrist.”
In contrast to the views expressed by Dr Caniato and Dr Sahoo, Dr O’Hare gave very clear and quite compelling testimony that the Applicant’s employment at the DIPL had a significant and deleterious impact on his underlying PTSD condition.
Mr Littlejohn drew Dr O’Hare’s attention to her report of 5 September 2018, and, in particular to that part of the report (Exhibit 2 pp. 29 – 30) where she opined that the Applicant’s strengths had been exhausted in the setting of 30 years of chronic PTSD. Dr O’Hare gave the following response – Tr. 18 September 2019 p. 69:
“So when somebody has 30-plus years of post-traumatic stress disorder, they develop a dysregulation of their affect, of their mood and their ability to tolerate stressors, even normal stressors. They completely lose the capacity to appropriately respond to them, so Mr Waldron, for example, is chronically irritable, quite intolerant of others’ behaviour and particularly found it difficult to tolerate groups of people, which was obviously required of him in his employment in that job, whilst he was in Darwin, but this occurred not only in occupational settings, but also in social settings.”
Under questioning from Mr Berger, Dr O’Hare agreed (Tr. 18 September 2019 p. 75) that the Applicant had, since 1986, never been symptom free and his symptoms had fluctuated over time.
Dr O’Hare testified that the Applicant’s employment at the DIPL had a deleterious impact on his mental health. When asked by Mr Berger how stressors in the workplace at the DIPL replayed the incidents that precipitated the onset of PTSD, Dr O’Hare gave this response – Tr. 18 September 2019 pp. 79 – 80:
“When he took up employment with the DIPL he was met with a number of work colleagues that he was expected to work with in group work and beside who in his opinion did not meet the standard, they were not as diligent as him and yet he had no power or authority over these people to alter their behaviour, to comment on it, to make any difference or change, so he found himself repeatedly having to control himself from yelling at them, from making inappropriate comments and in the end he left the employment because he was overwhelmed with feelings of anger, irritability, depression, suicidality, remember he’s had chronically for 30 years. So whilst the exact incident is not replayed the psychological dynamic, the particular interplay of stressors, was very similar to that which he had experienced in the police force which he ultimately left with his PTSD and as I attempted to explain earlier to the dynamic that he grew up in as a child between parents who were very, very unpleasant to each other. So that Mr Waldron’s current sequelae of symptoms is a result of a lifetime of repeated trauma on top of trauma on top of trauma where they become embroiled and enmeshed and it is very difficult to pull one out from another and attribute causality to one particular thing. I hope that answers your question.
Thank you. I think it does, Doctor, but just to make sure we understand I’ll try and paraphrase it and tell me if I’ve got it wrong. The stressors of working with people at the DIPL that Mr Waldron found frustrating for whole range of reasons on top of dealings with police colleagues in the Northern Territory Police on top of being shot in the caravan park and what surrounded that, on top of childhood and personality factors that led to is what contributed to his sequelae from July 2017. Is that an accurate summation of what you just said? --- Yes.”
In response to a further question from Mr Berger, Dr O’Hare expanded on the effect that the Applicant’s employment at the DIPL had on his mental health – Tr. 18 September 2019 p. 80:
“The impression I formed, and it is merely that, was that from the outset the role with the DIPL in Darwin was one that he struggled with, and that he attempted to persist because he has a high work ethic, because he thought that this job was very different from police work and therefore he would be able to do it, and I think that this is a common phenomenon amongst people with PTSD. Part of the reason they develop PTSD in the first place is they persist where others would desist and they continue to re-traumatise and re-expose themselves. So in this instance I think that this is classic re-exposing himself inadvertently in an apparently different guise to exactly the same dynamic, but I can’t answer the question about whether it was a catastrophic decompensation. My impression was that it was a slow dawning that he could not continue and that it was less catastrophic than it had been in the police force.”
Dr O’Hare testified (Tr. 18 September 2019 p. 81) that she agreed with Dr Markou’s opinion that the Applicant’s work at the DIPL aggravated his PTSD.
Finally, consideration needs to be given to the testimony of Dr Markou.
In response to questioning from Mr Berger, Dr Markou agreed that the Applicant’s symptoms of mood and anxiety had never gone away since 1986 but they were sometimes worse and at other times were relatively mild – Tr. 18 September 2019 p. 51. The following exchange then occurred – Tr. 18 September 2019 pp. 51 – 53:
“Would it be fair to characterise the history of Mr Waldron, in light of your experience with him, as having a chronic, entrenched post-traumatic stress disorder that provides a certain base level of dysfunction, if you like, but then within that framework there being some flare-ups of symptoms and then a settling down or stabilising back to that sort of base level symptomology? --- Yes, that is quite true.
If we go through his history we see a series, I suggest, of flare-ups and settling down. Would you agree that is an accurate characterisation of Mr Waldron’s life in the last 24 years? --- Yes. Historically, yes, although I have not known him that long, of course.
Yes. There have been a range of things that have happened in his life that have caused symptoms to become worse, or flare up, so to pick one example, his wife leaving him in 2015. Would you agree with that? Yes, that made things worse…
But to stick with, say, the example of Mr Waldron’s issues with his former wife, you would agree that in 2015, after she left him, he declined significantly from a psychological point of view for a time? --- Yes, that’s right.
And that probably lasted through to sometime in 2016. Would that be accurate? --- I can’t recall exactly, but that is probably correct.
And then you have observed a gradual improvement, and then, perhaps in 2017, a further lapse in his psychological state. Is that your understanding? --- I cannot give you an absolute timeframe. What I know is that there have been periods of relative wellness and then periods of relative deterioration. And it has been, throughout the time that I have known him, irrespective of whether his wife has left him or not, but certainly did make things worse. But even after that, and before that, there were periods of significant unwellness.”
Dr Markou agreed (Tr. 18 September 2019 p. 54) that the Applicant’s symptoms had “waxed and waned” over time without a permanent increase in either panic attacks or anxiety. However, Dr Markou also opined that with the passage of time there was an overall worsening in the Applicant’s level of functioning such that he was incapable of working any longer.
Further, Dr Markou opined that the Applicant’s DIPL employment had exacerbated his underlying PTSD – Transcript 18 September 2019 pp. 56 – 57:
“When my learned friend was asking you some questions a moment ago about your report of 16 January 2018 which is found at T50, I think you described what happened in 2017 as a reactivation of the initial injury. Have I recorded that correctly? --- Yes. Exacerbation.
Well, is it a reactivation or an exacerbation, or is there --- ? --- An exacerbation. If you are asking about those two words now, it was incorrect phraseology before. It was an exacerbation, because it hadn’t disappeared and been reactivated, so I used an incorrect word there.
Thank you. Right. So you certainly don’t suggest that the injury had gone into remission and gone away and then suddenly it came back? --- No, it hadn’t.”
Subsequently, Dr Markou expanded on the contribution employment at the DIPL had, in his opinion, on the Applicant’s mental health – Tr. 18 September 2019 p. 59:
“By that you mean the events you have described in the preceding four or five pages whilst he worked at the DIPL exacerbated and made worse his underlying post-traumatic stress disorder that had been in place for some time. Is that right? --- That is right.
You reinforce that in your next paragraph, don’t you, Doctor, by saying:
The factors outlined have perpetuated his anxiety and his sense of insecurity within the workplace has worsened the existing but hitherto manageable post-traumatic stress disorder…
In saying that, Doctor, you are trying to indicate your professional medical opinion that prior to – or without – the events at the DIPL, the post-traumatic stress disorder was manageable but these things have taken it to the point where it has worsened and become less manageable? --- That is right.
And for that reason, is it right that you offer the opinion you do under the paragraph following under the heading Capacity, that any return to his workplace, the Northern Territory Government, is likely to worsen his post-traumatic stress disorder? --- Yes, I agree with that statement.”
Finally, Dr Markou was asked about the Applicant’s mental health following the conclusion of his employment in the Northern Territory Police and his relocation to Queensland – Tr. 18 September 2019 p. 65:
“If we assume that Mr Waldron suffered an exacerbation of his post-traumatic stress disorder in or around July 2017, it would be reasonable to conclude, wouldn’t it, that this was caused primarily by his employment with the DIPL? – Yes, yes, around that time. Yes, correct.
Are you aware from your treatment of Mr Waldron since 2017 that having removed himself from DIPL and the stressors it led to, there has been some improvement in his symptoms or his behaviour and functioning? – Yes, I think so.
He’s referred in various documents to being in a better state of mind than when he was at work some six months earlier and feeling much better in 2018 than he did in 2017. That would be consistent with his presentation to you, would it? --- Yes, that would be consistent….
It would also suggest, wouldn’t it, Doctor, that if there was an exacerbation or a worsening of Dr Waldron’s post-traumatic stress disorder in or around July 2017, this worsening is not likely to continue indefinitely now that the stressor that precipitated the exacerbation has been removed, correct? --- That’s right. It’s not likely to continue, that’s right. Once removed it’s likely to improve.
Now that it’s been removed and he’s moved to Cairns and not subject to those stressors, it’s likely that he will improve and he will return to underlying baseline level, if you like, that’s caused by the incident condition? --- Yes, yes, that’s fair to say, notwithstanding any other issues that might arise, of course.”
Applicant’s Evidence
It is also important to focus on the evidence given by the Applicant at the Hearing. He was cross-examined at length by Mr Berger, and gave, as previously mentioned, clear and compelling evidence.
The Applicant testified that the symptoms of PTSD which continued to the present included difficulty sleeping, flashbacks, irritability, anxiousness, suicidal ideation, reckless behaviour and excessive alcohol consumption – Tr. 18 September 2019 p. 8.
Under questioning, the Applicant agreed that although his symptoms have never gone away and have continued to the present, they have fluctuated with some periods where he has felt worse – Tr. 18 September 2019 p. 10. The Applicant agreed with Mr Berger’s summation that over the past 25 years, basically, there was both periodic worsening and periodic improvement – Tr. 18 September 2019 p. 11.
The dissolution of the Applicant’s marriage in 2015 was particularly stressful for him and the following exchange occurred – Tr. 18 September 2019 p. 11:
“Then you slowly got to the point where you maybe recovered from that disappointment and sadness and resorted to the sort of underlying level that your post-traumatic stress disorder had left you with. Is that right? --- No, I haven’t recovered from that. I am still very upset that she left me because I know why she left me. She left me because of my conditions and basically she’d had enough. She was fed up.
Do you tell the Deputy President you still haven’t recovered to the level you were before your wife left you?—Well, of course I haven’t because I’m still sad that happened, so that’s not fully recovered. I’m not recovered. I’m upset that happened. I mean, I’m not as bad as I was for the first couple of years, but you can’t say that’s a recovery…”
Mr Berger went through a list of stressors that the Applicant had experienced, including (Tr. 18 September 2019 pp. 12 – 13) financial issues, legal issues with Comcare and the Northern Territory Government, physical ailments including back problems, shoulder problems, the death of the Applicant’s mother, stresses with his current partner and the Applicant’s employment with the DIPL.
With respect to the Applicant’s employment with the DIPL, Mr Berger asked the following questions – Tr. 18 September 2019 pp. 13 – 14:
“That was the department you worked with for about 10 years between 2007 and 2017. Correct? – That’s correct, yes.
What typically arose at various times is that something would happen. It would cause you increase in your symptoms from the base level they’d been at. The stressor would stop or circumstances would change. It would settle back down. Then something else would happen and the symptoms would increase again. Is that a broad pattern over the past 25 years? --- In general? Is that what you mean?
In general terms, yes? --- I think so, yes.”
Mr Berger then asked these questions – Tr. 18 September 2019 p. 17:
“You worked full-time rather than part-time, didn’t you? --- Yes.
You didn’t have any significant time off other than annual leave and the occasional period of sick leave. Correct? - Yes, I think that’s right.
In his report of January 2013, which we can find at T40, page 151, Dr Markou told Comcare that you’d been able to continue working on a full-time basis and, whilst there are periods of worsening anxiety in relation to the original traumatic events of 1986, on the whole, your work ability had been exemplary. Do you agree that’s a fair summary of your ability to remain working at the DIPL? – Probably, yes. It probably is a – no, I don’t know whether it is a fair summary. I don’t know whether exemplary. But I told him that, you know, I’d been offered promotion and that short of thing, so obviously I wasn’t doing too bad.”
The Applicant went on to testify that he had “struggled to stay there [DIPL] for 10 years” and that he had only been able to “with the help of my wife and the help of Dr Markou and the help of drugs” – Tr. 18 September 2019 p. 18. Nonetheless, the Applicant agreed (Tr. 18 September 2019 p. 18) that he did not need to take a significant period of time off work while at the DIPL for mental health reasons.
Mr Berger cross-examined the Applicant at length about his workplace experiences at the DIPL, and the Applicant confirmed the views he expressed in his Statement that was attached to his Northern Territory Compensation Claim Form – Exhibit 2 pp. 124 – 127.
Mr Berger also asked a series of questions relating to the Applicant’s Statement of 30 March 2018 – Exhibit 1 T60 pp. 247 – 259. The following exchange occurred – Tr. 18 September 2019 pp. 37 – 38:
“You also say that the DIPL workplace and your work aggravated the symptoms of your PTSD to the level that you could no longer carry on working there? --- Yes.
But you agree that, in your view, the DIPL workplace and your work there aggravated the symptoms of your PTSD that you’d had since 1986? – Yes, just like every other workplace I’ve worked in since 1995 and including the police force.
You say perhaps you should not have continued to work for the DIPL and allowed your health to deteriorate to such a low state that your wife left you. That’s something that you continue to wonder about now? --- Yes, that’s right.
You say on page 250 that now you’re away from the impacts of your employment situation, you’re feeling better in some respects. That’s true isn’t it? --- In some respects, yes.
You also say on page 250 that the symptoms of your PTSD were exacerbated by the many problems with the department, and some of the things that impacted on you were low morale, bullies, noisy workplace, allegations of corruption, witnessing corruption, incompetence of others, poor work ethic, inconsistencies in work practices, inconsistencies in staff workloads, dishonest contractors, poor workmanship being accepted by the department, to name a few. They’re all things I think that you referred to in your statement and you’ve agreed were things that frustrated and annoyed you. Is that right? --- Yes, that’s what I said.
You believe that those things and other things at the DIPL exacerbated the symptoms of your post-traumatic stress disorder. Is that right? – Yes.”
It then transpired that the Applicant was in settlement negotiations with the Northern Territory Government about the quantum of compensation payable for the aggravation of his PTSD because of his service at DIPL. The following exchange occurred between Mr Berger and the Applicant – Tr. 18 September 2019 pp. 39 – 40:
“You understand now that your claim against Comcare relates to what happened to you as a police officer in 1986, correct? – Yes. That’s – yes.
Your claim against the Northern Territory Government was a claim that your time at work in the DIPL aggravated the post-traumatic stress disorder you suffered in or about 1986 and increased our symptoms and disabilities? --- Yes…
That’s right. You’ve now resolved our claim against the Northern Territory Government haven’t you? --- I haven’t…
You’re certain about that? --- Yes. I know there’s been discussions.
There’s no in-principle agreement that’s been reached whereby they’ll pay you compensation? --- I think there’s an in-principle agreement, yes…
You’ve provided instruction to your lawyer about reaching an agreement with the Northern Territory Government? --- Several. You know, they came back with some minor sum, and I’ve gone on, and my lawyer has given me advice, and I’ve gone back and gone along with advice, and all that was about this, you know, negotiation.
The negotiation was in relation to payment of a lump sum compensation,, rather than weekly compensation or medical expenses or something of that kind? --- Yes, because they -yes, because they didn’t offer that, and they obviously wanted to what they did last time, was get rid of you.
What’s happened is that you put in your claim with the Northern Territory Government seeking compensation for aggravation of your post-traumatic stress disorder. They’ve offered you a lump sum amount of money. There’s been some negotiation or horse-trading. You’ve asked for more. There have been offers, counter-offers, and an in-principle agreement has been reached. Is that right? – I believe so, yes…
That’s okay. How much compensation have they offered you? --- I think $60,000…
You wouldn’t have agreed to accept a lump sum amount of compensation from the Northern Territory Government unless you genuinely believed that your time at the DIPL had aggravated your post-traumatic stress disorder. Correct? – I wouldn’t –
You wouldn’t accept $60,000 or any money from them if you didn’t believe in your heart of hearts that your time working at the DIPL aggravated, made your post-traumatic stress disorder worse? --- Well, that would be dishonest. No, I wouldn’t agree. Would disagree, sorry.”
Mr Berger concluded by asking questions about the state of the Applicant’s health after he finalised his employment with the DIPL – Tr. 18 September 2019 p. 41:
“Yes. One final issue, Mr Waldron. Since you’ve left the Northern Territory DIPL things have got a little bit better for you psychologically, haven’t they? --- Yes…
In his report of 28 March 2018, which is tendered as exhibit 4, Dr Markou said, and this is at page 4 of the report, ‘Since moving to Cairns, the symptoms have stabilised’. Do you think that’s an accurate assessment of what happened after you left the DIPL and moved to Cairns? Is that it happened because you did not constantly have reminders of your work or contact with work colleagues? --- What date was that again? April?
March 2018? --- Yes, I just – been a couple of months sailing to Cairns and down the Great Barrier Reef and putting myself in my unit, and things looked they might be going to change for me, and I was away from work there. I was feeling better.”
Consideration
The Tribunal had the benefit of closely observing and listening to the Applicant give evidence; in particular the answers he gave during the lengthy and probing cross-examination by Mr Berger. As previously mentioned, the Tribunal found the Applicant to be an honest and forthright gentleman who endeavoured, to apparently the best of his ability, to answer the difficult questions posed in a straightforward manner. The Tribunal noted, in particular, the answers he gave to Mr Berger about his legal proceedings against the DIPL and his honest belief that his PTSD condition had been made worse by his employment with the DIPL.
The Tribunal was also impressed by the evidence of Dr Markou. Whilst the Tribunal has the benefit of the learned interpretations of four psychiatrists, only Dr Markou has the experience of having treated the Applicant over a long period of time.
Psychiatry is an inexact science. It is inherently difficult, no matter how learned and experienced the psychiatrist, for a definitive diagnosis to be made after only one consultation. Certainly in many cases an experienced psychiatrist will be able to diagnose the root cause of a patient’s ailment after an initial examination. However, in workers’ compensation cases where much turns on questions of exacerbation and workplace contribution, and where questions of the degree to which underlying mood or personality issues play a part in a person’s mental health at specific points of time, a definitive diagnosis after one consultation is much more problematic. A tribunal of fact confronted with widely differing psychiatric reports, as in this case, must itself weigh up the degree to which it finds an applicant a witness of credit and which of the psychiatrists has had the most time in treating and assessing the applicant and whose professional assessment can be accepted as objective and dispassionate.
Whilst the Tribunal in no way wishes to criticise the views expressed by Dr Caniato or Dr Sahoo, nonetheless the Tribunal prefers the diagnosis of Dr Markou over those gentlemen because of his undoubted experience in treating the Applicant and because he presented as a professional who gave dispassionate and moderate evidence. In short, in this matter, Dr Markou presented as an objective professional and not an advocate for the Applicant.
I have set out at some length the testimony of the specialists and the Applicant. It seems tolerably clear to the Tribunal that the Applicant’s PTSD condition did worsen whilst he was employed at the DIPL. The Applicant’s underlying PTSD renders him inherently unstable, and this instability combined with his anxiety and mood issues caused ongoing problems throughout his years of service with the DIPL.
The various workplace stressors he experienced increased his underlying symptoms resulting in a diminution of his mental health. Dr Markou described this as an “exacerbation” of his PTSD, and the Tribunal accepts that this is an accurate label. In short, the Applicant’s work at the DIPL made his underlying PTSD condition worse.
It is also the case, as Mr Berger was able to skilfully highlight in his cross-examination of Dr Markou, that the Applicant’s symptomology has waxed and waned over the years. There were times, irrespective of work issues, when he felt better and times when he felt worse. This, it would appear, is a combination of both his chronic PTSD and his underlying personality.
There were also non-work factors at play during the time that the Applicant was employed at the DIPL. Much has been said about the impact of the breakdown of the Applicant’s marriage. It was very clear to the Tribunal after listening to the Applicant give evidence, that the breakdown of his marriage was a major blow to him and the emotional damage caused by that unhappy event continues to trouble him.
It is also the case, as Dr Markou testified, that since the Applicant has left the Northern Territory and moved to Queensland that his mental health has appreciably improved. Again, there is a pattern in the evidence, of the Applicant suffering the ups and downs that ordinary life brings, experiencing crises that have significant and negative impacts on his mental health, and then experiencing a process of recovery.
Dr O’Hare described the Applicant as, in effect, being borne down by the multitude of problems that have bedevilled him during his life. That may well be true, but the evidence tends to suggest that the Applicant has more resilience and more capacity to recuperate from the slings and arrows of misfortune than Dr O’Hare opined.
In conclusion, then, the evidence supports the proposition that the Applicant suffered an exacerbation of his chronic PTSD due to his employment with the DIPL.
It also follows from this finding that the Applicant’s level of incapacity did not become worse because of the index injury per se. The index injury has resulted in chronic PTSD, but the additional mental health problems faced by the Applicant in the period 2007 – 2017 were brought about, it would appear, by a combination of non-work crises (principally the marriage breakdown) and problems experienced by the Applicant at the DIPL.
The evidence of Dr Markou also suggests that there has not been any permanent increase in the key symptoms of PTSD such as panic attacks and anxiety. The fact that the Applicant’s mental health improved appreciably since leaving the employ of the DIPL is consistent with this diagnosis.
The cause of the worsening of the Applicant’s condition
It flows from the finding above, that the principal cause of the worsening of the Applicant’s PTSD condition was his employment with the DIPL, although other non-work factors also contributed.
It is not necessary for the Tribunal to make any further findings in this matter as it is clear from the evidence that the Applicant’s PTSD did not become worse because of the natural evolution of the disease, but because of external stimuli that have no relation to his employment with the Northern Territory Police.
It consequently follows that Comcare is not liable, pursuant to s 31 of the Act, to pay further compensation to the Applicant.
DECISION
The decision under review is affirmed.
159. I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso.
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Associate
Dated: 18 December 2019
Dates of hearing: 18 – 20 September 2019 Counsel for the Applicant: Mr Matthew Littlejohn Solicitors for the Applicant: Ms Victoria Bell, Tindall Gask Bentley Lawyers Counsel for the Respondent: Mr Andrew Berger Solicitors for the Respondent: Mr Daniel D’Onofrio, McInnes Wilson Lawyers
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