Wickett and Comcare - [2001] AATA 349

DECISION AND REASONS FOR DECISION [2001] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/167

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOHN WICKETT
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date27 April 2001
PlaceCanberra

Decision      The decision under review is affirmed.
  [Sgd C P Webster]
  Senior Member
CATCHWORDS
Compensation – avoidance phobia resulting from work stress – whether applicant recovered from effects of stress disorder contributed to by work.

REASONS FOR DECISION

27 April 2001 Mr C P Webster (Senior Member)

Mr John Wickett ("the applicant") seeks a review of a decision of Comcare ("the respondent") of 29 September 1998 (subsequently affirmed by an independent review officer on 23 April 1999). That decision ceased liability to pay compensation to the applicant from 3 June 1995 for a stress disorder which had been accepted by the respondent to have been sustained by the applicant on 13 October 1994.
The issues to be determined by this Tribunal are:

(a)Whether the applicant suffered a compensable condition namely "anxiety resulting from work stress" as a result of his employment on 13 October 1994.
(b)Whether any such condition has ceased; and
(c)Whether the applicant is entitled to compensation for any ongoing condition resulting from his employment notwithstanding his voluntary redundancy from his employer the National Registration Authority on 2 June 1995.

The Applicant's Evidence

The 'T' documents were tendered into evidence. The applicant gave oral evidence. His evidence in chief was that:
(a) He is now 62.

(b)He began employment with the National Registration Authority ("The NRA") in 1992.   His work generally involved the checking of applications for registration for veterinary products to be registered on the Australian market.
(c)That initially he was required to work long hours 7.30 am to 6 pm or 7 pm 5 days per week with work on the occasional weekend, but these hours subsequently increased.
(d)Initially the applicant worked under the supervision of Mr. Doust.   He initially received favourable comments regarding his work, but at the end of 1992 he was advised that he was inefficient and not performing the job properly.   The applicant considered this criticism to be unwarranted particularly as by that time he was working many more hours.
(e)As a result of the negative feedback from Dr. Doust, the applicant lost confidence and he became slower in his work as he found it more difficult to make decisions.   His hours reduced back to the hours he was working when he commenced with the NRA.
(f)The applicant received a transfer to another position within the NRA. The applicant was far happier and contented in that position.
(g)The work load in the position increased, and a further staff member was employed, an ASO2, to assist with the work.   The applicant also perceived that his supervisor was favouring the ASO2, a subordinate to the applicant, and that the applicant was being bypassed in the command chain.
(h)The stress levels on the applicant increased to the extent that on 2 occasions whilst sitting at his desk, he thought he was going to have a heart attack. Following that incident he attended hospital.

The applicant again suffered self-doubts and began to fall behind with his work.

(j)The applicant consulted his general practitioner Dr. P Barraclough regarding chest pains and was referred to a specialist, Dr. French.
(k)In October 1994, the applicant went on sick leave.    He did not return to work for the NRA and on 2 June 1995 he accepted a redundancy.
(l)On 2 June 1995 he attended his place of employment where he was told that in order to receive his redundancy he had to sign a work flex sheet.   He denied that he had worked 7 hours, 21 minutes on that day as indicated by the work flex sheet, but instead had been at the office for only 15 minutes.
(m)The applicant denied that the death of his father and girlfriend in Perth shortly after he started work with the NRA had any effect on his work or stress levels.
(n)That he was under financial pressure for a short time after starting work with the NRA as he was owed $16,000.
(o)He was advised by his supervisor not to approach a female workmate with whom he had developed a social relationship.
(p)During his period of sick leave the applicant improved in his mental outlook, but not to the condition he was in prior to working for NRA.
(q) That since leaving work he has worked as a taxi driver and gardener.   He had also worked for 6 months in East Timor. [He gave evidence of his annual earnings in that position].
(r)He agreed that since retiring he had not suffered any further chest pains or suffered the physical effects which he suffered before he went on sick leave.

Under cross-examination the applicant:-

(a)Denied that he first spoke to Dr. Barraclough about stress at work in October 1994.
(b)Agreed that when he initially saw Dr. Barraclough he did not relate his problems to work.
(c)Agreed that his concerns partly arose when he was counselled about the standard of his work, but said it was also as a result of the increasing volume of work.
(d)Agreed that he had been criticised for his work performance while at the NRA and became upset when advised that he might be the subject of inefficiency procedures. He agreed that his complaint of stress arose partly as the result of the counselling he received for his work performance.
(e)Agreed that when he commenced his sick leave that if he return to the NRA he was likely to be subject to inefficiency proceedings which would have resulted in dismissal.
(f)He agreed that in late 1998 he had been tested for a virus and that he had previously suffered sleep apnoea in 1993.

Dr William Knox, a consultant psychiatrist, gave evidence on behalf of the applicant. He confirmed his observations and opinions in his report contained in the 'T' documents, of 24 August 1998.
In his opinion the applicant had suffered from "major depressive disorder over a number of months during the latter part of 1994 and early 1995. There was also a significant component of anxiety …".
At the time of examination on 21 July 1998, the applicant "indicated no significant depression or anxiety, although he did have problems with his memory."
He considered that the applicant's poor memory and difficulty in marshalling his history are evidence of continuing mental disability on his part. He also considered that the applicant now suffered a phobic avoidance pattern or a simple phobia which in the applicant was a fear of returning to work at the NRA. The doctor conceded in cross-examination that the applicant's actions in applying for employment with the public service would not be consistent with his diagnosis.
He stated that he had not been told by the applicant of a probable inquiry into his work performance and agreed that such an inquiry would be a significant history which should be taken into account when forming an opinion.
On a review of his notes a reference to "inefficiency proceedings" was found, but the doctor missed the significance of the entry and he thought that the inefficiency proceedings arose "because he was a sick man".
Mr Steven Roberts gave evidence in person.
He was employed with the applicant and advised the Tribunal of the heavy work load under which he, the applicant, and other employees had to work in the period leading up to June 1995.
Dr Philip Barraclough, a general practitioner, gave evidence by telephone. He adopted his medical reports contained in the 'T' documents. In his report of 23 December 1997, he advised that the applicant had seen him between 16 March 1994 to 18 October 1994 with many physical symptoms for which no physical cause could be found. He therefore concluded that the symptoms were related to stress. In his opinion he was unlikely to return to a similar job in the public service.
Dr. Barraclough agreed that there was nothing to prevent the applicant returning to a job in the public service as long as it was not similar to his previous job.
The Respondent's Evidence
Dr. Lewin, a psychiatrist, gave oral evidence on behalf of the respondent, and his report of 19 June 2000 was tendered into evidence.
Dr. Lewin considered that Mr Wickett was not suffering from any psychiatric condition, but had an obsessional personality style. He considered that the symptoms Mr Wickett described in 1994 were typical factors of a adjustment disorder, but these symptoms had resolved by 1996. There was no ongoing incapacity. He thought the applicant's condition would have resolved in early or late 1994 and as late as 1996.
He thought, that based on the history provided by Mr. Wickett, work was a material contribution to his condition.
He disagreed that there was any psychiatric condition described as "phobic avoidance disorder". He stated that such symptoms were common, but were a symptom not a diagnosis. Similarly he did not consider that the applicant would be suffering social phobia as such a condition arose rarely in people aged in their 50's or 60's.
Mr. Stephen McDonald gave oral evidence in person and his proof of evidence dated 24 January 2001 was tendered in evidence. At one stage he had been the applicant's supervisor in the public service and had discussions with him concerning his inefficiency and as a result the applicant ceased working at the public service.
He agreed that work in his section of the public service at the time preceding the applicant's departure was stressful.
Discussion of Evidence
The applicant gave evidence of pressures he was under at work, including a heavy work load which he attributed to causing the stress disorder accepted by the respondent as occurring on 13 October 1994.
The Tribunal considered that the applicant was less than forthright, and exaggerated his symptoms. He down-played other significant stresses such as the death of his girlfriend and father; allegations of sexual harassment; and disciplinary proceedings. The applicant's evidence as to work pressure was however supported by corroborative evidence.
Mr McDonald and Mr Roberts who both worked with the applicant both gave evidence that supported the applicant's view that his work place prior to June 1995 was stressful and that there was a heavy work load.
Dr. Lewin, the psychiatrist, who gave evidence on behalf of the respondent considered that based on the history provided by the applicant work was a material contribution to the condition of adjustment disorder which he was suffering at the latest up until 1996.
The Tribunal therefore considered that the applicant was suffering a psychiatric disorder at the time of his retirement to which work was a material contributory factor.
The issue to be now determined by the Tribunal is whether the applicant is still suffering any disease to which work was a contributing factor.
In Dr. Lewin's opinion the applicant was no longer suffering from any psychiatric condition. He considered that the applicant had suffered an adjustment disorder, but these symptoms had resolved at latest by 1996 and there was no longer any injury incapacity. He did not agree with a diagnosis of "phobic avoidance disorder" or that the applicant would be suffering a social phobia.
Dr Knox, the consultant psychiatrist, called on behalf of the applicant, on the other hand considered that the applicant still suffered a phobic avoidance pattern or a simple phobia, which in the applicant was a fear of returning to work.
The Tribunal prefers the evidence of Dr. Lewin.
Dr. Knox appeared, to the Tribunal, to be making his diagnosis as he gave evidence and appeared to be partisan. He did not explain how he arrived at his opinion and his opinion was inconsistent in material ways with the evidence before the Tribunal that the applicant had sought other employment within the public service, and that the applicant had return for social visits to his work place.
Finally, the Tribunal considers that if the applicant was reluctant to work the NRA it would not, given all the circumstances, be an unreasonable reluctance by the applicant which would justify a diagnosis of a phobia.
Dr. Barraclough first certified the applicant unfit for work in May 1996 and there is no certification of unfitness beyond that date and that although the applicant regularly saw him after that time there is no record of complaint of symptoms of phobic avoidance pattern or simple phobia.
The evidence of Dr. Barraclough does not add any support to Dr. Knox's opinion.
The Tribunal is satisfied that the applicant did not suffer any disease contributed to by work after 1996, and therefore the applicant is not entitled to compensation for any ongoing condition resulting from his employment.
Decision
The decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  29 January 2001, 9 March 2001
Date of Decision  27 April 2001
Counsel for the Applicant        Mr S Gill
Solicitor for the Applicant         J Pappas
Counsel for the Respondent    Ms L Gabriel
Solicitor for the Respondent    Barker Gosling