Behan v Australian Telecommunications Commission

The applicant gave oral evidence that there was an air of hostility when he joined the section. The Tribunal is satisfied however that any differences with other employees caused by the applicant's arrival resolved within a reasonable period of time and that they had no impact on the applicant's health. The applicant said that issues also arose for him with respect to the placement of another officer on higher duties, a position the applicant considered he was entitled to. In his opinion there were delays in his promotion to a Senior Technical Officer Grade 1 position which only came about when he applied for a position in another department. His transfer to another department did not eventuate at the time as the other department was not prepared to wait for the applicant's position in the section to be filled before he was released. The applicant was not made aware of this at the time.

The applicant raised a number of other matters which concerned him and which he considers contributed to his medical conditions. They were: the lack of a smooth flow of work through the section; constant interruptions to the project he was working on when he was required by the head of the section, Mr J. McBride, to apply himself to other projects; interference with his work, for example the punching of holes on the wrong side of pages he had prepared; and delays in the production of his work because typists and illustrators he had asked to do his work were redirected by Mr McBride to give other work a greater priority without consulting or advising the applicant. These issues meant that the applicant was unable to meet deadlines he had committed himself to with the Navy and the Airforce. The applicant considered that he was locked into a project which was going to fold and that all his work would be for naught. He said that the management of the section by Mr McBride annoyed and agitated him. He became frustrated by Mr McBride's interference in his work and lack of communication. He said that he felt annoyed every time he saw Mr McBride and his morale was low.

In 1973 the applicant developed a pain in his stomach and headaches. He thought he may have an ulcer or cancer. He attended a general practitioner. Blood tests and x-rays were arranged. No abnormalities were detected. He did not relate these symptoms to his employment at the time. The applicant said that his abdominal pains again became acute in 1975. He attended the Western Region Health Centre ("the Centre") and consulted Dr A. Wenig. In May 1976 the applicant noticed that his right leg was swollen. He continued working for a week before consulting Dr Wenig who provided him with sick leave certificates for seven weeks for thrombosis. After further consultations and tests the applicant was prescribed medication, Serepax, and referred to a psychologist and a social worker at the Centre, probably in late 1976. He said that his symptoms decreased during weekends and holidays.

On 30 May 1977 Dr Wenig reported that he had been treating the applicant for approximately fifteen months. He stated that:

"He suffers from a number of complaints which in my opinion are due to chronic anxiety state. He has been seen by clinical psychologist and social worker on numerous occasions and we all feel that his employment situation is the major cause of his problems. Because of this I recommend that he be retired from further service."

The applicant's opinion of what occurred in the section is contained in a statement indexed at T9 amongst the documents. In the statement the applicant advised that he became "very nervy" and he consulted Dr Wenig again to inform him that he could not stand working anymore although he did not want to give up work entirely but only move out of the GAF. Dr Wenig recommended retirement to reduce his symptoms.

The applicant's sick leave records disclose that he was absent from work for gastroenteritis on a number of occasions each year from 1966 onwards. The sick leave records also disclose that the applicant was on sick leave for hypertension for six days in May 1977 and that he ceased attending the section on 3 June 1977 due to anxiety and hypertension. The applicant used up his accumulated sick leave and was invalided out of the Public Service on 14 September 1977.

The applicant's symptoms have now subsided although he still gets headaches if he is under stress. He stopped taking Serepax approximately six months after he retired and he has had no medical treatment for anxiety or stomach pains since he ceased working. Given suitable working conditions, he considers that he could return to technical writing although he would "not last 24 hours" back at the GAF. He told the Tribunal that he was offered a position with another government department the day after he left the GAF but, acting on Dr Wenig's advice he did not accept it. He has not sought other employment or a second opinion as to the effect of any employment on him.

Since retiring from work the applicant has done the maintenance and repairs on homes in which he has resided. He is the secretary of two Lodges and the treasurer of two others, attending meetings approximately once a week. The applicant has an interest in computers and is considering the preparation of a course for technical authors.

Mr G. Thompson was an illustrator in the section before his retirement in 1977. He told the Tribunal that he had done the work for years and he did not require much supervision. In his opinion the applicant had problems with management.

Mr McBride worked at the GAF between 1968 and 1987. He outlined the work of the section to the Tribunal. He was responsible for the allocation of tasks within the section. There were always a number of projects being worked on in the section and their priority was a matter of GAF policy, decided by management. Mr McBride's observations with respect to the morale and working relationships of the employees in the section were different from those of the applicant. He said that there were constant changes in the work done by the section because of the nature of the projects undertaken. Mr McBride said that employees in the section were used to an atmosphere of change. They had been selected because of their backgrounds in the defence services where they had put into practice the information they compiled in the manuals prepared by the section.

Mr G. MacLeod also worked in the section during the relevant period as a Senior Technical Officer Grade 1. He could not recall the applicant complaining about delays in the production of his typing. He said that employees accepted the system and did as well as they could. He disagreed with the applicant's view that morale was low and said that he knew of some who would "grizzle if you put them in heaven". He did not include the applicant in that group of employees. In his opinion the section was made up of responsible motivated defence orientated employees. Mr MacLeod said that the section was located in an open-plan area and everybody knew what was going on because of the small size of the section. He was shocked when he found out that the applicant was not well and could not continue in his employment. He had been unaware that the applicant had stomach problems. He accepted that change was inevitable in the section and he told the Tribunal that "everybody got the boot in 1987" when the section was closed. Having heard the evidence of both the applicant and Mr MacLeod, the Tribunal is satisfied that Mr MacLeod has a different personality from that of the applicant.

It was the applicant's contention that the definition of "injury" in sub-section 5(1) of the 1971 Act and sub-sections 5(11) and 27(1) were the provisions under which the Tribunal should decide the application. They provide:

'injury' means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;"

(a) the death, or a disfigurement, incapacity or disablement, of an employee, or a loss suffered by an employee, shall be taken to have resulted from an injury to the employee, or from an aggravation, acceleration or recurrence of a disease suffered by the employee if the injury, the disease or the aggravation, acceleration or recurrence, as the case may be, contributed to the death, disfigurement, incapacity, disablement or loss;

27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.

Having heard the evidence and considered the judgment of the Full Court of the Federal Court in Miles v Northern Territory Fire Services (1989) 17 ALD 185, the Tribunal is satisfied that it should consider the issues raised in this application under section 29 of the 1971 Act and the definition of disease in sub-section 5(1) of the 1971 Act. They provide:

"5(1)In this Act, unless the contrary intention appears -

'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;

(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,

the succeeding provisions of this section have effect.

(e) the total or partial incapacity for work of the employee,

results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears -

(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and

(g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury."

We turn first to the applicant's claim with respect to his thrombosis. None of the medical evidence points to the applicant's work being implicated as a cause of his thrombosis and we so find. In his report dated 27 November 1985, summarising the applicant's attendances at the Centre, Dr Joslin did not bother to include the applicant's visits on 19 May 1976 and thereafter with respect to his thrombosis. Sick leave certificates rather than workers compensation certificates were provided by Dr Wenig. In oral evidence to the Tribunal Dr Joslin said that he saw no connection between the applicant's thrombosis and his history of stress. Dr D. King, Physician, examined the applicant for medico-legal purposes in September 1991. The applicant asked his opinion whether the stress he perceived at the section may have provoked his thrombosis. Dr King excluded nervous stress as a factor in the development of the applicant's thrombosis.

Having considered all the evidence, we also find on the balance of probability that the applicant's employment did not aggravate his thrombosis. In his report, Dr King put forward that scenario as a possibility. The applicant continued to work for one or two weeks after developing symptoms in his leg. However, we note that there is no record in Dr Wenig's clinical notes made on 14 May 1976 of any complaint by the applicant with respect to his leg. Dr King concluded his report by stating that the applicant's thrombosis "would not interfere with his capacity to perform his previous job".

Turning to the applicant's claim with respect to anxiety and nervous dyspepsia, the psychiatrists who examined the applicant for the purpose of these proceedings, Dr E. Cole, Dr P. Grainger-Smith and Dr G. Vickery all agree that the applicant has an obsessional personality. In their opinion an obsessional personality arises from childhood experiences or is inherited. In March 1976 Dr Wenig noted that the applicant was tense when he presented with a complaint of abdominal pain and flatulence. A diagnosis of irritable colon was made. By May the applicant was prescribed medication for anxiety and tension and in April 1977 he was referred to a psychologist and social worker at the Centre for relaxation therapy. Dr Wenig who treated the applicant at the time considered that his work contributed to his chronic anxiety state. The applicant's present general practitioner, Dr M. Longbottom advised, in a report dated 26 September 1991, that his medical records since 1 November 1985 do not indicate that the applicant has had any symptoms which could be attributed to anxiety.

Dr Cole attributes the applicant's bowel symptoms at the time, to his emotional reaction. In Dr Cole's opinion, the applicant would still find it difficult to tolerate situations which are not to his liking and he said in oral evidence to the Tribunal, that the applicant should not return to work with the Public Service. Although the applicant's disease had resolved by the time he saw him, Dr Cole thought that the applicant may have a permanent loss of stress tolerance because of his experiences in the Public Service. He described the applicant as a person who, having been "once bitten", was "twice shy".

We have some concern with some of the comments made by Dr Grainger-Smith in expressing his opinion with respect to the applicant. We are satisfied that he made assumptions as to the reason the applicant retired from work and we do not accept his assumptions. He considered it inappropriate for the applicant to retire without specialist referral outside the Centre. However, we do note Dr Grainger-Smith's objective evidence that stress generally resolves when the frustrations of work cease if the frustrations are the cause of the stress.

Dr Vickery did not examine the applicant until January 1991. In his report dated 23 January 1991 he stated:

"...I feel certain it was not the work duties as such but rather his obsessional intolerance of the inefficiency and incompetance (sic) of his work place ie. mismanagement of G.A.F., which had resulted in his retirement."

Dr Vickery went on to express the opinion in his report that the applicant's condition, obsessional personality, was constitutional and not related to his employment. In oral evidence to the Tribunal, which was given by telephone, Dr Vickery stated that the applicant had suffered from situationally based anxiety. He therefore appeared to have altered his opinion from that he expressed in his written report. By way of elaboration at the hearing Dr Vickery said he considered that it was the applicant's intolerant reaction to his work environment which led to his condition. Dr Vickery accepted the applicant's history as his perception of what happened. Dr Vickery expressed a similar opinion to that of Dr Grainger-Smith who said that once a person with the applicant's condition was moved to another work situation, the person could work successfully.

1. The Tribunal gave leave under sub-section 66(1) of the 1988 Act for the report from Dr J. Nicholls, Psychiatrist, dated 20 February 1980 to be placed before it. The report did not raise any new issues and was obtained by the Commonwealth Department of Health for the purposes of the applicant's superannuation claim. Dr Nicholls suggested that the applicant continue in retirement for a further two years.

2. In Westgate v Australian Telecommunications Commission (1987) 14 ALD 367 Davies J referred to the judgement of Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 where His Honour said at page 641:

"When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."

Davies J said at page 372 of his judgement in Westgate's case:

"It does not matter that the worker's response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence. Windeyer J used the words 'precipitated or stimulated."

"Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease."

1. The Tribunal is satisfied on the balance of probabilities that the applicant's employment at the GAF provided more than the scene in which his anxiety and dyspepsia occurred. We are satisfied that the applicant's employment was a contributing factor to the contraction of his disease, anxiety state, and that the disease should be deemed to be a personal injury to the applicant under sub-section 29(2) of the 1971 Act. The Commonwealth had an employee with a fragile personality and while he was in attendance at the section, the factors which he referred to in his oral evidence positively contributed to the development of his anxiety and dyspepsia. There was no suggestion in the evidence before the Tribunal that other work environments had the same impact on his mental ailment. He could not cope with the changes in priorities which occurred, the downgrading of his typing, and the marginalisation of the work he carried out. That is not to say there was anything wrongful in the way the section was run. Other more robust personalities could cope with the changes. We consider that the applicant's disease was situationally based as the applicant gradually accumulated a number of issues which frustrated him and which preyed upon his mind.

2. We have considered Mr Cole's opinion as to the applicant's tolerance of stress and we have considered the decision in Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 82 ALR 54 where the Federal Court noted:

"Section 29(2) of the Act requires that the total or partial incapacity for work of the employee must result from the disease or from its aggravation, acceleration or recurrence if there is to be compensation therefor. This provision turns its attention to a disease as it exists at the time of the alleged incapacity."

In reaching its decision the Federal Court in Percival's case relied on the approach adopted in Canberra Abbatoir Pty Ltd v Asioty (1987) Full Federal Court. Since Percival's case, the decision in Asioty's case has been set aside by the High Court in Asioty v Canberra Abbatoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533. The High Court restored Orders made by the Supreme Court of the Australian Capital Territory that the condition of the appellant's hands, with their enhanced susceptibility to dermatitis, had intensified the disease from which the appellant suffered and that the enhanced susceptibility constituted an aggravation of his disease. Mr Asioty was unable to return to work because to do so would produce symptoms which had already prevented him from working. That is not our finding in this application and we distinguish Asioty's case from the application before us. We are satisfied that from 14 September 1977 onwards, the date on which the applicant was invalided out of the Public Service, he was no longer incapacitated for work. Relying on the applicant's evidence and the evidence of Dr Vickery and Dr Grainger-Smith we find that the applicant's disease was situationally based and the applicant had a capacity to work in another environment. The applicant was offered employment by another department the day after he ceased work with the GAF. He rejected that offer because of Dr Wenig's advice. He has made no attempt to test that advice or find other employment. He has remained active and gave evidence of his involvement with four Lodges in which he holds executive office and of twenty hours involvement each week on his computer. We are satisfied that since 14 September 1977 the applicant has had a capacity to carry out the duties he was performing at the GAF as long as he had another supervisor and was placed in another situation.

1. Applying paragraph 29(2)(g) of the 1971 Act, the date of injury shall be the date on which medical treatment was first obtained. For the purposes of this application, we find that 11 March 1976 was the date on which the applicant first sought medical treatment for any disease contributed to by his employment. However, he no longer had a disease to which his employment was a contributing factor after 14 September 1977.

2. It is for these reasons that the decision under review will be set aside.