Williams and Comcare - [2003] AATA 1210

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1210

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1407

GENERAL ADMINISTRATIVE DIVISION

Re: ROBERT DOUGLAS WILLIAMS

Applicant

And: COMCARE

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

Date: 2 December 2003

Place: Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member

COMPENSATION ‑ post traumatic stress disorder ‑ whether suffers from condition ‑ whether condition contributed to in a material degree by employment ‑ whether arose out of, or in the course of, employment ‑ army service ‑ incidents during employment with army

Safety, Rehabilitation and Compensation Act1988

Compensation (Commonwealth Government Employees) Act 1930

The Commonwealth v Wright (1956) 96 CLR 536

REASONS FOR DECISION

2 December 2003 Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

This is an application to review a decision of the respondent of 17 October 2000 which affirmed a prior determination of 24 November 1999 that the applicant had no entitlement to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of a claimed condition of post traumatic stress disorder (PTSD).
At the hearing the applicant, Mr Robert Williams, was represented by Mr De Marchi, a solicitor, and the respondent by Mr J. Lenczner, of counsel. Evidence was given by Mr Williams; three psychiatrists, Dr E. Cole, Dr V. Kothari and Dr N. Strauss; and a general practitioner, Dr L. Woo. In addition to the documents provided by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered at the hearing:
Statement of Mr Williams dated 16 January 2002  Exhibit A1
Statement of Mrs M. Williams dated 16 January 2002  Exhibit A2
Report of Dr Kothari dated 19 March 2002  Exhibit A3
Clinical notes of Dr Woo  Exhibit A4
Report of Dr Strauss dated 19 July 2001  Exhibit R1
Report of Dr Strauss dated 13 June 2002  Exhibit R2
Report of Dr Strauss dated19 April 2002  Exhibit R3
Extract from diagnostic criteria - American Society of Psychiatrists Exhibit R4
Mr Williams was born on 28 November 1936, enlisted in the Australian Army (the army) on 23 January 1952 and was discharged from the army on 22 January 1961. In a claim for compensation dated 10 February 1999, Mr Williams stated that he was claiming for post traumatic syndrome caused by stress & traumatic happenings and accidents during army service between 1952 and 1961.
In his statement (Exhibit A1) and his oral evidence, Mr Williams referred to several incidents during his army service to which he attributed his psychiatric condition. These incidents, in chronological order, were:
(a)July 1956. Mr Williams hurt his left knee when stepping from a trench dug for building foundations. Shortly after, the knee was aggravated when scaffolding collapsed. The diagnosis was a tendon injury and he was medically downgraded.
(b)October 1957. Mr Williams was part of a construction team and a beehive in a tree above a cement mixer needed to be removed. He had previously assisted his father who had beehives so he volunteered to remove this hive. He made up a bee box and cut down the branch of the tree to transfer the bees to the box. He was stung badly by the bees to his head and body. He was taken to hospital for treatment.
(c)Shortly after the bee incident. The first floor of a building under construction collapsed trapping a friend by his legs. Mr Williams hurried to assist his friend by lifting the steel rod/girder and strained his back in so doing.
(d)30 July 1958. Mr Williams and a friend left camp at approximately 11 p.m., picked up two ladies who were telephonists at the camp post office and went for a drive along nearby country roads. His friend drove on the way out and Mr Williams drove on the way home. At approximately 11:50 p.m., on a road near camp, the motor vehicle hit gravel on the edge of the bitumen when negotiating a bend. The motor vehicle turned over and hit a tree. Mr Williams's friend and one of the ladies were killed, the other lady suffered a fractured skull and Mr Williams suffered a cut over his left eye and was knocked unconscious. He signed a waiver of intention to claim compensation in relation to the accident.
(e)1959. Mr Williams badly burned his right hand when unplugging an electric drill from an extension lead and received an electric shock. He was off duty for three days.
(f)1961. Mr Williams suffered a Bennetts fracture to his left thumb when he slipped on the steps of his barracks. He has had two operations since and continues to have a problem using his left hand to hold items or in turning knobs.
Mr Williams gave evidence of further injuries suffered after his discharge from the army. The first was in 1974 when he was doing carpentry work at a hotel and slipped off a stool jarring his knee and back. He was unable to walk and dragged himself to his motor vehicle and drove to the doctor. He maintained that he recovered from that incident. In May 1985, he was involved in a motor vehicle accident suffering a soft tissue injury to his neck, jarring of his back and lacerations to his knees. He believed that he recovered fully from that accident within two years. In 1989, Mr Williams was stung by a wasp. He said that there was a wasp's nest in his sunroom at home. He erected a shelf approximately one arm's length from the nest and set alight to some tablets obtained from a friend who had been supplied with them by the local council. In doing so, he was bitten on the arm by a wasp. His wife put calamine lotion on the bite but, as the soreness did not improve, he saw his general practitioner, Dr Woo, who prescribed ointment, which cured the problem.
After his discharge from the army, Mr Williams worked as a carpenter until his injury in 1974. After some time off work, he was employed as a delivery driver. In 1978 he commenced work as a taxi driver and continued in that occupation until the accident in 1985. Subsequently, he worked part time driving wedding cars and hire cars. He ceased work in 1989 and has not worked since. In 1989 Mr Williams had a cervical laminectomy and in 1996 a lumbar fusion.
Mr Williams said that he suffers from insomnia and has regular dreams involving being stung by bees, buildings collapsing and electric shocks and exploding globes. He said that he is now scared of and will not go near bees and wasps. He is now very cautious of electricity and won't go near it.. He said he dreams of car accidents and is reminded of the 1958 accident on the anniversary of the accident and on seeing some Transport Accident Commission advertisements. Mr Williams said that, while he would have told his wife of the various incidents, he had not discussed their effect on him and kept his emotional concerns bottled up.. He said that he suffers currently from memory loss, poor concentration and difficulties conversing with other people. He was first prescribed Valium in the 1960s for lack of sleep and only takes such medication when he thinks it is needed.
Mr Williams said that he commenced to drink alcohol regularly after 1956. This caused some problems in his marriage. Between 1956 and the 1970s, he drank four large bottles of beer a day and the alcohol assisted him to sleep. After reducing his alcohol intake, he said that he developed headaches and night sweats.
Mr Williams said that he sought advice regarding a possible claim for compensation from the Returned & Services League of Australia (the RSL). Initially, a claim was made to the Department of Veterans' Affairs who advised that the appropriate claim was for compensation. Mr Williams said that he examined his army record and noticed the various incidents. He believed that he had suppressed the memory of such incidents. Dr Woo had suggested that the reasons for his problems and being upset have been the result of incidents in the army. Mr Williams said that he was unaware of the reason why the incidents relating to the bee stings, electrocution etc were not included in the Medical Board report on his discharge from the army. He believed that his first knowledge of the condition of PTSD came from a representative of the RSL.
Five psychiatrists have examined Mr Williams since 1986. Dr D. Sime, a psychiatrist, saw him in August 1986 relative to his claim for compensation relating to the 1985 motor vehicle accident. He was given no history of any traumatic events during army service and noted some reactive depression as a result of the 1985 accident and Mr Williams's consequent physical and financial problems. Dr P. Kornan, a psychiatrist, saw Mr Williams in November 1992. Again, he was given no history of any incidents during army service other than the knee injury in 1956. Dr Kornan diagnosed an anxiety state of mild to moderate intensity with symptoms of being tense, nervous and having problems with sleeping. He questioned whether Mr Williams's symptoms were consistent with an alcohol problem. It is also noted that, in a report of 17 May 1991, Mr A. Buzzard, an orthopaedic surgeon, noted that Mr Williams had said that he suffered from depression and anxiety since the 1985 accident. Mr Buzzard commented, also, on suffering from alcoholic over indulgence.
Dr Kothari has treated Mr Williams since August 2001 after referral from Dr Woo. He diagnosed PTSD and had taken a history of the various incidents during army service, as stated by Mr Williams. He believed that the condition was the result of the cumulative effect of these incidents. It is noted that Dr Kothari was unaware of the 1985 motor vehicle accident. He had been told by Mr Williams of his avoidance of situations where he could be hurt by bees or wasps or has to work with electrical equipment. In his oral evidence, Dr Kothari accepted that the actions of Mr Williams in seeking to remove a wasp nest in 1989, the necessity to use electrical equipment by Mr Williams in his subsequent work as a carpenter and renovator and his decision to become a taxi driver in 1978 were inconsistent with PTSD arising from bee stings, electrocution and the 1958 motor vehicle accident.
Dr Cole saw Mr Williams in March 2000. He took a history of the same incidents during army service but not of the 1985 motor vehicle accident. He noted sleep difficulties, night sweats and nightmares of motor vehicle accidents, although not specific to the circumstances of the 1958 accident, buildings collapsing and being attacked by bees. Dr Cole diagnosed a chronic anxiety state and reactive depression of a moderate degree attributable to chronic ill health and a succession of accidents over the years. He considered that Mr Williams suffered from PTSD from the 1958 accident, but accepted that he did not present with the full clinical picture of that condition. Dr Cole accepted that the incident with wasps in 1989 and taking on taxi driving weakened a diagnosis of PTSD. He had not taken any history of an alcohol problem but did consider that some of Mr Williams's symptoms were consistent with alcohol dependence.
Dr Strauss first interviewed Mr Williams in May 2000. He was given no history of any traumatic incidents during army service with the only matters noted being the knee injury in 1986 and a back injury from moving a refrigerator in 1960. He took no history of nightmares. Dr Strauss considered that there was no overt psychiatric illness and, while Mr Williams was tense, upset, saddened and frustrated, these feelings related to his physical symptoms and were within normal limits. Dr Strauss saw Mr Williams again on 19 July 2001 when he was given the history of the various incidents alleged by Mr Williams during army service. Again, no significant psychiatric illness was diagnosed by Dr Strauss who believed Mr Williams was an unreliable historian and not necessarily truthful in relating past history. Mr Williams was again seen by Dr Strauss on 13 June 2002, who stated that …If one accepts that this man is truthful then it is possible to state that he has mild depression and the elements of post traumatic stress disorder. He remained uncertain of Mr Williams's veracity. In his oral evidence, Dr Strauss indicated concern that Mr Williams had, apparently, needed to check his army records in order to recall the various incidents referred to and that the subsequent events of dealing with a wasp nest and driving taxis were incompatible with the alleged effect of the bee stings and the 1958 accident.
There are two questions to be dealt with in this application. The first is whether Mr Williams suffers from a psychiatric condition and the second is whether any such condition has been caused by or has arisen from his employment in the army. In relation to the first question we are of the opinion that Mr Williams does not suffer from PTSD.. While Dr Kothari diagnosed such a condition and Dr Cole almost agreed with that diagnosis with reservations, Dr Strauss found no psychiatric illness at all other than elements of post traumatic stress disorder if Mr Williams is to be believed as to his symptoms and the effect of the army incidents. In our view, it is very relevant that, in interviews with two psychiatrists prior to making his claim in 1999, Mr Williams made no reference to any such incidents or symptoms arising from them. While we accept that he was then concerned with a claim relating to the 1985 incident, it is difficult to accept that he would not have referred to the symptoms now alleged. It was only at the third interview with Dr Strauss, well after his claim had been considered and disallowed and he had seen Dr Kothari, that he produced his current alleged history. It is particularly relevant that the three psychiatrists who gave evidence at the hearing accepted that the actions of Mr Williams in dealing with the wasp nest in 1989, his operation of electrical equipment as a carpenter post discharge from the army and his activities as a delivery driver and taxi driver were incompatible with his alleged symptoms from the traumas from the bee stings, electrocution and 1958 motor vehicle accident. It is clear that, after discussions with his RSL representative, Mr Williams first became aware of the condition of PTSD and its cause and symptoms. His alleged symptoms were not raised with anyone until after that awareness and reference to his army records. He first saw Dr Kothari after his claim and a subsequent request for a referral from Dr Woo. It is not feasible to be suffering from a condition of PTSD with no recurrent memory of the traumatic event and not re‑experiencing that event. Even the alleged nightmares of Mr Williams appear to be general and not specific to the circumstances of the alleged trauma. He spoke of fear of bees and wasps and avoidance which is quite incompatible with him climbing to within an arm's length of a wasp nest in 1989. The psychiatric evidence is clear that the condition of PTSD does not appear some 40 years after the events to which the condition is attributed. We find that Mr Williams suffers from a mild to moderate anxiety state with some depression which has resulted from his physical injuries and limitations which have primarily arisen from the 1974 and 1985 accidents which were clearly more significant in relation to his physical problems than he has been prepared to admit.
We have not commented on the evidence of Dr Woo as it is clear that any opinions expressed by him were based solely on the information given by Mr Williams and he has no expertise in psychiatric conditions. One relevant matter from the files of Dr Woo is that the first notation of any symptoms of depression was in November 1992 and the first record of any alleged problem relating to army service was in July 2001 after which Mr Williams was referred to Dr Kothari.
Even if we err in finding that Mr Williams does not suffer from PTSD, the question remains as to whether his condition was contributed to in a material degree by his employment with the army or arose out of, or in the course of, such employment. As stated earlier, it is clear from the psychiatric evidence that the bee stings and electrocution cannot be seen as traumas, which have resulted in the alleged condition. It could be accepted that the 1958 motor vehicle accident could have been traumatic resulting in the deaths of two people, although we are satisfied that it resulted in sad memories not a psychiatric condition. However, the accident occurred at 11:50 p.m., after Mr Williams finished his duties for the day and while he and his friend took some lady friends for a drive in the country. The trip was completely unrelated to his employment. Mr Williams maintained that he was on‑call 24‑hours a day, but it is clear that, while he could be required for duty outside normal working hours, he was not so required on that night. He was free to come and go as he chose from the camp at that time. From his description of the road on which the accident happened, it appears clear that it was not within the camp but a public road. He was on a private trip unrelated to any aspect of his employment. The decision in The Commonwealth v Wright (1956) 96 CLR 536 supports this view.
Whether the alleged condition of Mr Williams could be categorised as a disease or an injury and whether the date of the injury was in the 1950s or the date of the disease was in 1992, when it may have been first treated, does not affect our view that the decision under review should be affirmed. Either under the Compensation (Commonwealth Government Employees) Act 1930 or the SRC Act, the condition was not due to the nature of the employment, was not contributed to in a material degree by the employment nor arose out of, or was in the course of, the employment.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

(sgd) Olympia Sarrinikolaou
Clerk

Dates of Hearing: 17 ‑ 18 February 2003; 25 June 2003; &
2 October 2003

Date of Decision:  2 December 2003
Counsel for the applicant:            Mr D. DeMarchi
Solicitor for the applicant:            DeMarchi & Associates
Counsel for the respondent:         Mr J. Lenczner
Solicitor for the respondent:        Phillips Fox Lawyers