WORKERS' COMPENSATION - whether applicant's condition arose out of his employment with the Commonwealth - whether Comcare determination could cease liability from certain date onwards - decision varied

Safety, Rehabilitation and Compensation Act 1988

Australian Postal Corporation v Oudyn [2003] FCA 318

Rosillo v Telstra Corporation Limited [2003] FCA 1628

Re Liu and Comcare [2004] AATA 617

This is an application for review of two decisions of Comcare dated 10 December 2001 and 23 December 2002. The 2001 decision affirmed an earlier decision in which Comcare determined liability in respect of generalized anxiety disorder would be ceased on and from 5 September 2001. The 2002 decision affirmed an earlier decision in which Comcare rejected the applicant's claim for compensation for permanent impairment.

The matter was heard on 5-6 July 2004. The applicant was represented by Mr English. The respondent was represented by Mr Dube. Before the Tribunal were two sets of documents compiled pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the "t-documents"). The Tribunal was also provided with:

• A BAS profit/loss statement relating to the applicant's business;

• A bundle of material summonsed from Ms Simons (psychologist and psychotherapist);

• A letter written by Ms Simons concerning the applicant's anxiety dated 26 August 2003;

• A printout from an internet website concerning "EEG Biofeedback Training" (a neurological treatment);

• A copy of the reasons for decision in the AAT matter of Plumb and Department of Aviation (dated 2 November 1988);

• A printout from a CPA recruitment/careers website concerning average wages of various types of accountants;

• A report of psychiatrist Dr Williams dated 20 June 2002;

• A report of psychiatrist Dr Varghese dated 9 December 2003.

3. Mr Plumb made a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 on 4 December 1984. He stated on his claim form that he suffered "stress/anxiety disorder caused by work situation and aggravated by a 21/2 year failure to act on a justified transfer request". After investigation a delegate determined the applicant had "contracted a disease namely, reactive anxiety disorder and that his employment had been a contributing factor". The date of contraction of the disease was determined to be 15 November 1982.

A second determination was made on 21 May 1987 following further medical examinations and reviews. The determination provided the respondent was not liable to pay compensation to the applicant on and after 18 February 1985. That decision was then reviewed by the Administrative Appeals Tribunal ("the Tribunal") in 1988. The Tribunal determined:

"that the matter be remitted to the respondent with the direction that the applicant is entitled to be paid compensation pursuant to the terms of s 45 of the Compensation (Commonwealth Employees) Act 1971 for those days between 18 February 1985 and 20 July 1987, a closed period, when the applicant's absence from work was accounted for by anxiety disorder and adequate psychiatric evidence supports such an account."

Comcare subsequently made a series of determinations awarding payments for incapacity for periods after 30 July 1987.

On 21 August 1990 a delegate revoked those determinations, concluding there was no liability to pay compensation in respect of incapacity for work-related anxiety disorder from 20 July 1987. The delegate added that claims for medical treatment and expenditure in relation to his work related condition should be denied. It was also decided that the date of injury was 11 May 1981 and not 15 November 1982.

Mr Plumb applied to the Tribunal for review of those determinations. Initially the Tribunal decided it could not review the determinations because the earlier Tribunal decision had closed the period for which the applicant was able to be compensated. Mr Plumb successfully appealed this ruling to the Federal Court, which remitted the matter to the Tribunal for reconsideration.

8. The matter was listed for hearing before the Tribunal in Sydney on 8 April 1993. However the parties settled the matter, in the following terms:

(i) The Tribunal remits the matter to the respondent for determination in accordance with the following directions:

(a) the applicant is partially incapacitated as a result of the injuries

suffered by him in compensable circumstances on 11 May 1981;

(b) since 21 July 1987 the applicant has been able to earn an amount equal to the amount actually earned by the applicant from time to time or the New South Wales state award wage for a Clerk Grade 5 whichever is the greater, except for periods for which the applicant's treating psychiatrist at the time certifies the applicant to have been incapacitated for all remunerative work.

(c) the applicant is entitled to be paid compensation in terms

of section 46 of the Compensation (Commonwealth Government Employees) Act 1971 and section 19 of the Safety, Rehabilitation and Compensation Act 1988.

Following several Tribunal conferences the applicant continued to receive a financial benefit from Comcare in the amount of $128.82 per week from 1 July 1997.

10. In 2000 Comcare arranged for the applicant to be seen by Dr T. Bell. Dr Bell is a specialist psychiatrist. Mr Plumb initially saw Dr Bell on 18 December 2000 and subsequently on 15 February 2001. Following receipt of Dr Bell's report a delegate of Comcare determined on 5 September 2001 to cease liability in respect of generalized anxiety disorder from 5 September 2001. On 19 October 2001 a delegate affirmed the decision under review.

Mr Plumb was the first witness at the hearing. He recounted the circumstances of the development of his condition. He spoke in particular of the original conflict with his supervisor (in about 1982) over the decision to deny him the study leave he sought. He says he later lodged a grievance claim which he felt was not considered within a reasonable time. He also recounted how he had not been granted a transfer. There were other conflicts in the workplace. He said these events caused his anxiety syndrome which persists. In cross-examination he conceded 1979 had been a traumatic year for him - both of his parents had died that year and he had also experienced the breakup of a major relationship. However he insisted he coped with those events in a normal way. He denies they were the cause of his anxiety condition.

Mr Plumb has seen a number of specialist psychiatrists as well as some general practitioners and psychologists since his condition was first diagnosed Their detailed reports are included in the T-documents.

13. One of the earliest medical reports was provided by a general practitioner, Dr Beckett. Dr Beckett said he had first seen the applicant in 1981. He said the applicant was experiencing symptoms of depression following the death of his parents and breakup with his girlfriend. The applicant also said he was finding his work boring and unenjoyable. The applicant saw Dr Beckett on two other occasions in 1984. He was suffering from agitated depression. In a 1985 report Dr Beckett expressed the opinion that Mr Plumb suffered endogenous depression which was aggravated by his work. However he predicted that because of Mr Plumb's emotional and personality make-up the applicant would continue to have episodes of depression and anxiety for the rest of his life.

In 1983 the applicant was referred to a psychiatrist, Dr R McMurdo. Dr McMurdo diagnosed a reactive anxiety disorder. In the absence of any other known precipitants he felt the disorder was strongly related to his work. In 1984 Dr McMurdo said the applicant was fit for full-time work in a field unrelated to his previous employment. In 1985, Dr McMurdo noted the applicant was working in a new position in Sydney, and was much more relaxed and less anxious. Subsequently, in a report prepared in 1990, Dr McMurdo commented that the applicant exhibited anxiety symptoms on several occasions when he was at work. These symptoms apparently diminished when the applicant was away from work.

At the Tribunal hearing in 1988 Dr McMurdo opined that the incidents at work, combined with a susceptible obsessive personality, were the originating cause of his illness. Dr McMurdo noticed a considerable improvement in the applicant's mental health after he commenced work outside the Department. Dr McMurdo was then seeing the applicant only every 3 months. He agreed the applicant suffered from a personality disorder. He also agreed there was a relationship between Mr Plumb's obsessional personality and his anxiety condition.

In a report dated 14 August 1990 Dr McMurdo said the applicant's condition had not deteriorated to the extent that he was unfit for full-time employment. But Dr McMurdo doubted Mr Plumb could cope with a very demanding job. He stated there was little doubt Mr Plumb's condition worsened because of his frustration at not obtaining a "just" outcome from the compensation system. The delay in finalizing the claim and completing the litigation has also had an adverse effect on Mr Plumb's psychiatric health.

17. In 1987 Dr David Bell (a psychiatrist) examined the applicant. Dr Bell was of the opinion that the applicant had a personality disorder which was a pre-existing condition. He noted that obsessional features were prominent in Mr Plumb's condition. They could have a hereditary basis. Dr Bell told the applicant that the bitterness and resentment which he was nurturing could be creating and/or exacerbating his problems. Dr Bell believed the applicant could work efficiently with another employer.

In 1991 Dr Revai (a psychiatrist) examined the applicant. He had also seen the applicant in December 1987. He felt Mr Plumb's employment was the initial contributing factor to the anxiety disorder. However since that time the causative factor had become Mr Plumb's involvement in the proceedings, and the Department's approach to those proceedings. The applicant told Dr Revai he can work, but loses concentration and is overwhelmed with anger about his predicament.

The applicant also saw Dr John Strum. In March 1991 Dr Strum prepared a report after reviewing all relevant documentation including reports from other psychiatrists. Dr Strum noted the applicant was symptom-free for a period in 1987 but his illness had returned. He felt there was little doubt the long history of conflicts with the Department of Aviation had caused him to suffer long-standing psychiatric illness. He also noted the applicant is obsessed with bitterness and a need for vindification and justification.

Dr Ruth Simons (a psychologist) gave evidence by telephone. She said she first saw the applicant in 1999. Initially she saw him for marital counselling but his marriage has since ended. She continues to see him to help deal him with the loss of the relationship and children and his difficult financial situation. She sees him to help him cope with daily life, and she believes he has improved considerably with her therapy program. Mr Plumb's marital problems are not completely resolved because there are residual custody and financial problems. She said the Comcare and marital conflicts were separate but tended to 'impinge' on each other.

Dr J Boulnois also gave evidence by telephone. He was the applicant's treating psychiatrist since 1991. He has recently ceased to see Mr Plumb as a patient because he missed several appointments. Dr Boulnois said that in 1999 Mr Plumb appeared to be coping with his accountancy business (although this assessment had been based on what he was told by the applicant). Dr Boulnois said the applicant sees himself as having been badly treated by his former employer but his anger is now directed at Comcare. Dr Boulnois did not know if another object would attract his attention if the conflict with Comcare were solved. He acknowledged that was a possibility.

The T-documents contain numerous letters from Dr Boulnois, mainly to Comcare. Dr Boulnois remains firmly convinced the applicant's psychiatric condition is solely related to the earlier experiences with the Department of Aviation. Nevertheless, in a letter dated 29 June 2001, Dr Boulnois agreed with Dr T Bell that Mr Plumb's anger with previous employers has now been transferred onto Comcare.

In a report of 19 May 1999 Dr Boulnois reported that Mr Plumb's psychiatric history is that of an obsessive compulsive man, prone to being over-inclusive, pedantic and humorless. He said Mr Plumb focuses his life on the minutiae of crossing "T's" and dotting "I's" and has converted his emotional life into one extended balance sheet, in which he invariably ends up at a loss, with others responsible for the situation.

In a letter of 29 June 2001, Dr Boulnois sought (on behalf of the applicant) to appeal against the Comcare decision now the subject of the application before the Tribunal. Earlier in that report he said he thought it was the role of a community psychiatrist to stand beside his patients. In a later letter addressed to Comcare he stated he would continue to support Mr Plumb in whatever way he was able.

In 2001 Comcare arranged for the applicant to be examined by another specialist psychiatrist, Dr T Bell. His report of 8 May is contained within the T-documents. In that report Dr Bell diagnosed a Chronic Generalized Anxiety Disorder, a Dysthymic Disorder and an Obsessive Compulsory Personality Disorder. Dr Bell opined that an individual who did not have Mr Plumb's personality dysfunction would not have continued to suffer anxiety and depressive symptomatology for 15 to 20 years after the initial causative events. The fact Mr Plumb had continued to do so after so many years was due to a combination of his personality dysfunction and the failure to finalise his dealings with Comcare.

Dr Bell expressed the opinion that the former employment itself was not the reason for the ongoing psychiatric condition. Rather, the cause was the review process, ongoing litigation and an inability to obtain closure combined with Mr Plumb's personality traits. Dr Bell assessed Mr Plumb's level of permanent impairment at between 5% and 10%.

In a further report of 3 October 2003 Dr Bell recorded the applicant's psychiatric condition had been originally due to an intense interplay between the employment factors in the early 1980s and his obsessive compulsory personality disorder. He opined that in recent years the employment factors of the early 1980s ceased to have a direct bearing on the ongoing psychiatric condition. The generalized anxiety disorder and dysthymic disorder were maintained by the ongoing non-resolution of the various disputes with Comcare. That remains the case. Dr Bell believed the original work-related issues of the early 1980s would have ceased to make a significant contribution to his conditions after 2 years.

Dr Varghese also gave evidence at the hearing. He first saw the applicant in June 2002. In a report of that time Dr Varghese said that in addition to the personality disorder the applicant had a condition which he would describe as a "pan neurosis". Dr Varghese described this condition as manifesting an ongoing state of chronic depression, chronic anxiety and obsessive compulsive symptoms which were intertwined with the personality disorder. Such a condition was clearly disabling from a functional point of view. Dr Varghese expressed surprise that work would give rise to such long-term problems.

Dr Varghese believed it was equally probable that a developing neurosis in the context of the personality disorder caused Mr Plumb to develop problems at work, which led to difficulties with supervisors - as against the probability that specific incidents at work triggered his condition. Dr Varghese favoured the former scenario. He said the condition was multifactorial and there were several factors other than employment contributing to his condition. He believed that if there were issues of adjustment to the aspects of employment then these would have ceased within 6 months. However, he commented that Mr Plumb's disorder is more than an adjustment disorder.

Dr Varghese saw the applicant again in 2003. In his report at that time he confirmed his earlier opinion that the applicant has a "pan neurosis" which manifested itself at various times with depression, anxiety and obsessive compulsive symptoms occurring in the context of a disorder of personality.

31. With respect to the persistence of his symptomatology long after he had ceased work, Dr Varghese saw this aspect as being consistent with a chronic neurosis rather than an adjustment disorder or reactive depression as a consequence of work issues. It was also consistent with a disorder of personality. Dr Varghese said it is certainly true that the applicant's current psychiatric difficulties are driven by his ongoing dispute with Comcare. The dispute with Comcare had taken over from the original factor which caused the disease.

Dr Varghese rated Mr Plumb's level of permanent impairment at 10%. He said half of the rating was due to chronic neurosis (whatever the original cause) and half was due to the ongoing litigation.

The Tribunal also had regard to a report of Dr Williams, a psychiatrist. That report referred only to a few issues that were troubling the applicant at the time. Dr Williams mentioned the anger in relation to the compensation claim. He also mentioned the applicant was indignant because a partner in his business might be decamping, and also that his ex wife had "traded him in" for a New Zealander.

It is worth noting that in 1988, the Tribunal had no hesitation in finding that from 20 July 1987 the applicant ceased to be incapacitated to any degree. It stated Mr Plumb was clearly capable of working with an accountancy firm. He was not troubled by relationships or by frustration or stressful situations. Finally the Tribunal said if the applicant did not have full time employment, then that would have been due to factors other than his incapacity.

None of the psychiatrists disputed the fact that the applicant has a personality disorder. The majority opined the applicant has an obsessive compulsive disorder which has been intertwined with an anxiety and depressive disorder. Whether he was entitled to compensation for work related psychiatric problems in the 1980s is not the subject of any dispute. This dispute concerns whether Mr Plumb is entitled to ongoing compensation arising out of his work with the Department of Aviation in the 1980s.

Dr T Bell believed the work-related issues of the 1980s would have ceased to be a significant contribution to his generalized anxiety disorder and dysthymic disorder after 2 years. Dr Varghese said that if there were issues of adjustment to the aspects of employment then these would have ceased within 6 months. These opinions are consistent with the observations of Dr McMurdo in his 1990 report. Dr McMurdo then recorded that on several occasions the applicant's symptoms of anxiety - present at work - diminished when he was away from work. Dr McMurdo also referred to the considerable improvement in Mr Plumb's mental health after he left the Department. At that time Dr McMurdo regarded him as fit for full-time employment.

The Tribunal in 1988 determined the applicant was not incapacitated to any degree. Dr Strum noted the applicant had been symptom-free in 1987 but in 1991 the illness returned. It appears the applicant coped relatively well from 1987 (when he left the Department) to 1991, but the anxiety disorder has been more disabling since that time. The question arises as to why the anxiety condition is now so disabling.

The evidence indicates there are two main problems responsible for the deterioration since 1991. The main focus of the applicant's attention has been litigation and his Comcare claim. A secondary focus seems to have been problems associated with the end of his marriage and associated custody and financial disputes, which Ms Simons discusses.

In 1991 Dr Strum commented the applicant was obsessed with bitterness and a need for vindication. In a 1990 report he noted the applicant's psychiatric health was being harmed by his frustration at not obtaining what he considers to be justice from the compensation system and the delay in finalizing the claim and completing the litigation. In 1991 Dr Revai felt that since the time of employment in the Department the contributing factor had become the applicant's fight for what he believed to be his rights. We also note the applicant told Dr Strum that when working he loses concentration because of his overwhelming anger.

Dr Boulnois said the applicant's anger is now directed at Comcare. Dr Bell stated what Mr Plumb had previously projected upon his place of work was now directed at Comcare. Dr Bell's findings support this view. He stated the specific employment factors which pertained in the early 1980s had ceased to have a direct bearing on his ongoing psychiatric condition. That opinion was supported by Dr Varghese.

Mr Plumb's psychiatric improvement did not persist beyond 1991. Since that time virtually all psychiatric reports have commented on the fact that the dispute with Comcare has been the predominant factor responsible for his recurrent anxiety disorder. Most psychiatrists see the original precipitating cause for his illness as no longer making a significant contribution to his current condition. Some psychiatrists have opined that his obsessive compulsive disorder is responsible for his continued dispute with Comcare. There is no suggestion the obsessive compulsive disorder is related to any workplace factors. Dr Varghese even thought it probable that the anxiety condition predated his original workplace problems.

Of the psychiatrists who have seen the applicant since 1991, both Dr Varghese and Dr T Bell are of the opinion that the factors which precipitated the anxiety disorder in the 1980s are no longer of significance. Conversely Dr Boulnois believes the applicant's condition is due to the earlier events. The Tribunal prefers the opinions of Dr Bell and Dr Varghese. We believe the weight of the evidence supports their opinions. In addition the objectivity of Dr Boulnois is called into question, considering his statements about the role of the community psychiatrist. It is also worth noting it was Dr Bulnois who sought review of the Comcare decision on behalf of the applicant. We are not critical of Dr Boulnois for supporting his patient but his comments suggest he may take a more partisan view.

We find the psychiatric conditions experienced by the applicant are not caused by stressors from his employment with the Commonwealth. His condition is due his continuing litigation. This is made all the more clear by the fact the applicant was symptom-free from 1987 to 1991 - a clear break in causation.

We also note the recent decisions of the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318. In Oudyn, the learned Cooper J said:

[A determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the [Safety, Rehabilitation and Compensation Act 1988 (the Act)]...Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to [a determining authority] in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.

Madgwick J supported this reasoning in Rosillo v Telstra Corporation Limited [2003] FCA 1628. More recently, members of this Tribunal have formulated certain criteria to which decisions concerning liability under the Act must accord: Re Liu and Comcare [2004] AATA 617 (18 June 2004) per Downes J, Deputy President Handley and Senior Member Allen. They said

The criteria are that determinations:

(a) should not suggest that liability has ceased;

(b) should not suggest that no future liability can exist; and

(c) should speak only as to present liability.

Here, Comcare's determination of 5 September 2001 was that Comcare's liability for Mr Plumb's claim was ceased "on and from 5 September 2001". This clearly offends the decision in Oudyn and Liu. Comcare cannot bind itself in advance to reject any future application for compensation.

The Tribunal therefore varies the 2001 decision. On 5 September 2001, Comcare was not liable to pay Mr Plumb compensation in respect of his anxiety condition.

The Tribunal affirms the 2002 decision in relation to permanent impairment.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member BJ McCabe and Dr KP Kennedy, OBE, Member

Signed: Thomas Ritchie

Associate:

Dates of Hearing: 5 and 6 July 2004

Date of Decision: 24 September 2004

The applicant was represented by Mr English of counsel.

The respondent was represented by Mr Anderson and Mr Dube of counsel.