Stateships v Lawson

The Notice of Appeal 24 The amended notice of appeal contains the following questions of law: (a) whether there was any evidence before the Tribunal on which the Tribunal could find that the respondent contracted a psychiatric disorder in or about June 2006 and that he continued to suffer from a psychiatric disorder; (b) whether properly construed ss 24 and 26(1) of the Act in imposing liability on an employer to pay compensation to an employee in respect of an "injury" as defined in s 3 of the Act permits regard be had to whether the injury has "arisen out of" the employee's employment; (c) whether the definition of "disease" in s 3 of the Act encompasses a mental ailment in the absence of a close connection between the mental ailment and the employment in which the employee is engaged or whether any causal connection is sufficient; (d) whether an employee's subjective perception of an employer's conduct which precipitates a mental ailment can satisfy the definition of "disease" in s 3 of the Act, thereby enabling the payment of compensation pursuant to ss 24 and 26(1) of the Act without it first being evaluated and determined that there is a close connection between the employment and the subjective perception, and in the case of a mental ailment said to be consequent upon an initial injury, without first evaluating and determining whether there was a close connection between the initial injury and the mental ailment such that the mental ailment was not too remote.

The First Question 25 The first question of law is supported by a ground of appeal in terms: (a) the Tribunal held that the respondent suffers from a mental ailment being a psychiatric disorder which he contracted in or about June 2006 when there was no evidence that the respondent contracted a psychiatric disorder in or about June 2006 or that he continued to suffer from a psychiatric disorder.

The decision of the AAT 26 The relevant findings of the AAT contained in its reasons are as follows: Does the applicant suffer from a mental ailment? 43. The medical evidence before the Tribunal supports the proposition that the applicant has been suffering from a mental ailment since June 2006, or, alternatively, that he has been suffering from a mental ailment since 1996 which was aggravated in June 2006. There is no medical evidence before the Tribunal which is inconsistent with either of those alternative propositions. Accordingly, the Tribunal finds, on the basis of the medical evidence before it, that the applicant suffers from a mental ailment and has been so suffering since at least June 2006. 44. As regards the nature and character of the mental ailment suffered by the applicant, the Tribunal finds, on the basis of the evidence of Dr Knight, that in or about June 2006 the applicant's existing mental condition substantially deteriorated to the extent that he then contracted a psychiatric disorder. It is not necessary for the Tribunal to make a finding as to the precise diagnosis of that psychiatric disorder but the Tribunal is satisfied, on the basis of Dr Knight's evidence (which included a reference to a provisional diagnosis of adjustment disorder with anxious/depressed mood made by Dr Wu, Psychiatrist, on 5 July 2006 and his suggesting anti-depressant medication for the applicant), that the applicant's ongoing psychiatric disorder, which he contracted in or about June 2006, involves depression. 27 In short the Tribunal was satisfied that the respondent suffered a "substantial deterioration in his mental health in or about June 2006 which … involved the contraction of a psychiatric disorder involving depression": at [46] 28 The applicant submits that not only is there no evidence to support this but that the relevant evidence contradicts such a conclusion.

Evidence as to injury 29 Dr Knight, the respondent's general practitioner since 2001, referred the respondent to a psychiatrist, Dr Wu. Dr Wu saw the respondent on 26 June 2006 and prepared a report dated 5 July 2006. Dr Knight said that one of the main focuses of sending the respondent to Dr Wu was to assess the respondent's likely suicide potential. She did not state what, if any, were the other reasons. Dr Wu's report was not provided by Dr Knight to the Tribunal although she had it with her whilst giving evidence. The Tribunal did not require that it be produced because it did not want her to feel "uncomfortable" about doing so. The appellant's solicitors requested a copy of Dr Wu's report from the respondent however the respondent was unable to obtain a copy from Dr Knight and for that reason did not provide a copy to the applicant. 30 The examination of Dr Knight included the following: That would be the first one presumably. Let's say it would be shortly after --- ?---Yes, there was only the one visit that I'm aware of at that stage and as a result of that visit Mr Lawson started on some anti-depressant medication. All right, so you have a report of Dr Wu, have you, dated the 5tbof July 2006?---Ido. Is it a very lengthy report?---A four page report. Right, so it is a very, well fairly lengthy report. Are you able to tell us what Dr Wu concluded, regarding say a diagnosis of Mr Lawson's mental condition?---Yes, his main problem was that he stated he's not able to make a definitive diagnosis at that stage because there had only been the one visit so he definitely felt that Mr Lawson had been suffering from an - well he stated just from the one-off visit an adjustment disorder with anxious depressed mood was the diagnosis that was made but he also documented in the letter that a one-off visit was not enough really for him to make a conclusive diagnosis. All right, and did he express any view about the causation of that condition?---Let's have a read for you. I've obviously sent him along because I was concerned about his risk of suicide so I - one of the main focuses of the visit with Dr Wu was to assess how likely he felt that suicide potential was. Yes, well it may well be that Dr Wu wasn't asked to express any opinion regarding the cause of this, I'm not sure?---Well he might have, it was more that my concernwas do I have a gentleman that is going to - that is actually suicidal and needing some care or not and Mr Lawson had been a referral back to me from his clinical psychologist who he'd been seeing, the clinical psychologist was concerned, I was definitely concerned with the information that Mr Lawson discussed with me and that's why he had an appointment within a week to see the psychiatrist, Dr Wu. Right, but no follow up--- ?---Dr Wu's concern was that he felt Mr Lawson was insightful and he did not feel at the time that he was seen that he was actually suicidal but certainly felt that he was at risk. But there were no follow up visits?---They were offered but Mr Lawson declined at that time. And are you aware of Dr Wu prescribing any medication for Mr Lawson?---That was he suggested to him commencing Lexapro and Mr Lawson and I followed up on that and we discussed the medication and commenced him on it and he remains on it to this day. Right, all right. Is there anything else in Dr Wu's report that you think is worthy of mention or not? For example, anything there that you have particularly followed upon yourself in your treatment of Mr Lawson apart from I suppose the prescribing of Lexapro?---It was I guess a number of things more trying to provide an environment of calm for Mr Lawson because we had a very angry and potentially suicidal man, very distressed and it was trying - my follow up afterwards was trying to create an environment in which he could be in this state. 31 The effect of this hearsay opinion evidence attributed by Dr Knight to Dr Wu was: · The respondent may have been suffering from an adjustment disorder with anxious depressed mood but that, because he had only seen the respondent once, such a diagnosis could not be conclusive. · The applicant was "insightful". · The applicant was not actually suicidal but there was some unspecified "risk". 32 Dr Wu, according to Dr Knight "suggested" that the respondent commence on medication known as Lexapro. He did not however prescribe it. It was Dr Knight who did so. There was no evidence as to the basis for this prescription or the period in respect of which it was prescribed. In any event, it is by no means clear in the evidence that it is prescribed only for depression. It seems likely that this is not the case as Dr Wu was unable to conclusively diagnose that the respondent was suffering from depression. I cannot think that in those circumstances he would suggest a drug if it were apt only for the treatment of depression. 33 The respondent, as Dr Knight stated in evidence, declined further follow-up with Dr Wu. 34 In contrast to the statements attributed to Dr Wu, Dr Knight's report prepared on 3 December 2007 had stated that "He was urgently reviewed by psychiatrist Dr Wu, and commenced on an anti-depressant for major depression with high suicide risk". 35 This advice, whether intended or not, wrongly conveyed the impression that the respondent had been diagnosed by a specialist psychiatrist, Dr Wu, as suffering from major depression attended by a high suicide risk. 36 Likewise, in her letter to Cocks Mcnish dated 5 September 2007 to which I have referred, Dr Knight stated at para 3: Mr Lawson receives counselling with a clinical psychologist and is on antidepressant medication (lexapro). The medication was commenced shortly after he was urgently referred to a psychiatrist in June 2006." 37 As with Dr Knight's other advice, the correlation between the medication and the review of the respondent by Dr Wu may well have given the impression that he had diagnosed the respondent as suffering from depression. Dr Wu, in fact, had done no such thing. 38 Dr Knight was cross-examined as to her evidence concerning depression. The following are relevant extracts from the transcript: Well when we say someone is suffering from depression we, as lay people, we tend to bandy that around quite willy-nilly I suppose in many respects, someone is always depressed or they've had a bad day but it has a distinct medical meaning, doesn't it rather than what we lay people would often call depression?---Yes, it does, yes. And as a GP or as I understand it you didn't conduct any testing to formulate if I can call it the technical meaning of depression?---Have I done a formal - other than what I can work from the DSM sort of classification of depression? That's so, yes. As I understand it, you really took - you looked at - or gave a general view of Mr Lawson but it wasn't the same sort of test that say a psychiatrist or a psychologist would do. You didn't perform those sorts of tests?--- No, I didn't do anything in depth like that, that's something that takes a process of considerable time which is not available to me in general practice. I have to do things in short bites. 39 Dr D Weerasooriya, a member of the Tribunal questioned Dr Knight in terms: In WA: thank you for that. Doctor, as a vocationally registered GP aren't you - isn't it a part of your training that you're trained to diagnose, not so much diagnose, at least to realise that somebody that comes to you in your practice could be depressed to use a technique of interrogating them such that you get to the root of that if you suspect it, isn't that a part of your training and aren't you doing that consciously in many other cases apart from cases like this?---Yes. If a new patient were to come to you isn't it a part of your history taking, a part of your training to pick out those nuances, body language, the way they say things to come to a conclusion and are you quite adept at that after so many years with experience?--- I … patients with psychological issues. I am a person who spends some time with people so yes, that's something that I don't sit and tick the boxes and dot the Is but have developed knowledge over the years and hence my concern and hence my rapid referral. 40 The effect of her evidence was that she had not performed tests for depression as she did not have time as a general practitioner to do so, but that she was trained to realise that a patient could be depressed occasioning a referral of the patient to a specialist psychiatrist. That was, in the case of the respondent, precisely what Dr Knight did. 41 Emilie Cattalini, a registered psychologist gave evidence. She practised at the Mary MacKillop Centre. The respondent had done voluntary work there for her over a period of about two years around 2000-2003. She had in the past provided counselling to the respondent. 42 Her witness statement, which was reproduced at [38] of the Tribunal's reasons stated the following: "I am a registered Psychologist and have been in practice since 1991. In 1996 Mr Barry Lawson requested counselling because, being engaged in a legal battle concerning injury claims, he was under extreme stress. He had frequent thoughts of suicide and of inflicting harm on others. He also experienced sleeplessness, increased use of alcohol and growing dependency on medication. He was reclusive, short-tempered, and his personal care and family relationships had deteriorated. Over the ensuing years, while the legal battle continued, Mr Lawson has continued to seek help and has engaged in learning several stress management and stress reduction techniques. From time to time, when his progress towards a resolution of his dispute seems to be deliberately blocked, his mental state becomes fragile. Recognising the signs he seeks help immediately. Also, requests for help have been deliberately delayed or refused. One such example is the delaying of authorization for home help after surgery till due time had elapsed. Help was rightfully available for six weeks after surgery but authorization for the help was delayed beyond six weeks by which time his right to the help had expired. This occurred even though the request for help had been granted in court. If is difficult to perceive such delays as anything but deliberate actions on the part of the respondent. They are, consequently, stress producing for Mr Lawson. The most recent severe deterioration in mental health suffered by Mr Lawson was around June 2006 due to the stress incurred after a request by the respondent that he undergo vocational assessment and this by an unapproved provider. It was not the request in itself that caused stress. Firstly, it was the fact that Mr Lawson's Doctor has asked that such assessment take place many times over the years and was constantly refused. Secondly, subsequent to the request for vocational assessment, Mr Lawson was again subjected to inconsistencies by the respondent, being asked to go to an approved provider being a case in point. Thirdly, it became obvious that there was no real intention of finding him employment because of the delay - 60 days after receiving the report no progress had been made. At this time Mr Lawson again experienced severe reclusive behaviour and thoughts of suicide and harm to others returned. Not being engaged in meaningful employment has been a major factor in Mr Lawson's deterioration. After his most recent deterioration, Mr Lawson began a personal programme of physical exercises and continued his previous mental therapies. At this time he was also placed on medication for depression by Dr Wu, Psychiatrist. Mr Lawson has undoubtedly sustained extreme mental pressure, exacerbated by delays and inconsistencies. Because Mr Lawson has become most proficient in, and very faithful to, his stress management techniques my role in his mental health care is now as Mentor rather than Counsellor." 43 In cross-examination she said: Now, can I ask you, did you undertake any formal testing of Mr Lawson in the sense of a DSM test or anything similar?---No. Could I ask you whether you would agree or disagree with the proposition that the stress that Mr Lawson has been under since 1991, caused by the litigation process, is the source of his present mental state, to use neutral terms?---Not completely in the sense that there was a lot dealt with previous to around - you know, when all this other business started. You know, sort of around probably about two years ago, you know, like he was proceeding very well, and then there was a deterioration about two years ago. 44 In its Reasons at [40]-[41] the Tribunal stated: 40. Sister Cattalini, when asked for her opinion regarding the effect on the applicant's mental health of the respondent's now terminating the vocational rehabilitation process in his case, said that it "would certainly relieve his stress". 41. Sister Cattalini said that the applicant's present mental state is better than it was in 1996 when he first sought counselling. She said that, prior to 2006, his mental state fluctuated but that in 2006 it deteriorated almost to the 1996 level. She added: "... but it wasn't as prolonged, and I would imagine that that was because Mr Lawson had built up his practices of being able to then self-monitor himself and do the work, and also kept in contact, with the counselling and monitoring. So he was better able to handle it because he had the techniques and the tools to handle it. But it was - he did - well, he went back into thoughts of suicide, he went back into reclusiveness, he went back into personal health deterioration, personal appearance deterioration, so all those indicators were there again." 45 The effect of Ms Cattalini's evidence was that: · The respondent suffered a severe non-specific deterioration in his mental health around June 2006 due to the stress incurred after a request by the applicant to undergo vocational assessment. · This deterioration wasn't as prolonged as it had been in 1996. · Her role (as at the date of the hearing before the AAT) in the respondent's mental health care was, by reason of the respondent's proficiency in stress management techniques only as a "Mentor" rather than a "Counsellor". 46 In the circumstances where there is positive evidence that Dr Wu did not diagnose depression in the case of the respondent the hearsay evidence of Ms Cattalini that Dr Wu prescribed medication for depression carries no weight. 47 In my opinion, the finding by the Tribunal that the respondent contracted a psychiatric disorder involving depression in or about June 2006 and which continued to the date of the hearing in May 2008 was not founded on probative evidence. Indeed it was contrary to the evidence which was probative. The evidence of Dr Knight concerning the question whether the respondent suffered depression or any injury involving depression was, with due respect to her, overstated and her reports misstated the involvement and diagnosis of Dr Wu. Her evidence in this respect was at odds with what Dr Wu had stated even on her account. It was not probative of the existence of a psychiatric disorder involving depression either as at or about June 2006 or since then. 48 Dr Wu, a specialist psychiatrist was not prepared to conclude that the respondent was depressed. He positively concluded that the respondent was not actually suicidal. It is regrettable that the Tribunal did not insist on Dr Wu's report being produced by Dr Knight. Any confidentiality could only have been for the benefit of the respondent who, in any event, was plainly relying upon its contents. 49 Ms Cattalini, a psychologist, was prepared to say no more than that the respondent's mental health suffered a severe deterioration in 2006 but only for some unspecified period when it seems it resolved. 50 Finally the respondent did not, in his application under the Act, say that he was depressed. At its highest he said that the events concerning the vocational reassessment in about June 2006 had caused him a lot of stress and threatened his ability to cope with daily life. He did not tell Ms Kordanovski, the psychologist, that he was depressed but said that he felt highly anxious about participating in vocational rehabilitation as at 2006. 51 The question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, 38 AAR 55 at [29]; Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108, (2008) 249 ALR 762 at [99]. 52 The fact that the Tribunal is not bound by the rules of evidence does not free the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 155-6; Collector of Customs (Tas) v Flinders Island Community Association (1985) 8 ALN N102; Rodriguez v Telstra Corp Ltd (2002) 66 ALD 579 at [25]; Wecker at [96]. 53 In my opinion there was no probative evidence that the respondent contracted a psychiatric disorder involving depression. 54 There is however evidence that is probative, emanating from Ms Cattalini, that the respondent, for an unspecified period in or about 1996 and again in 2006 suffered severe deterioration in his mental health as a result of stress. Whether or not those episodes constituted relevantly an "injury" under the Act, I cannot say. This ought be considered by the Tribunal. 55 Pursuant to ss 44(4) and (5) of the AAT Act and s 28 of the Federal Court of Australia Act 1976 (Cth) the Court has power to remit the case for re-hearing by the Tribunal, which may be confined or at large: Repatriation Commission v Nation (1995) 57 FCR 25. I consider that the matter as a whole ought be remitted to the Tribunal differently constituted for determination according to law. It is unnecessary, given this conclusion, to consider the other questions of law raised in the application. 56 The application will accordingly be allowed. I will hear the parties on the question of costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 09 February 2009 Counsel for the Applicant: Mr L A Tsaknis

Counsel for the Respondent: The Respondent appeared in person